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“Imm migrratioon Ass A istaancee� The Challlengees Faacing the L Legal Proofession and a thhe con nsequ uencees of the t Reegulattory Schem S me

Levingston C. H. L Solicittor Sydneyy Octobeer 2010


About the Author: Christopher Levingston is the Principal Solicitor of Christopher Levingston and Associates. He was admitted to practice as a Barrister on the 8 August 1986 and as a Solicitor on the 10 February 1989. He was admitted to his specialisation as an accredited specialist by the Law Society of New South Wales (Immigration) on the 1 September 1995. He has been a public commentator on Immigration related matters over the last twenty years and has also been heavily involved in the continuing education of both Solicitors and Registered Migration Agents.

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Background The regulation of the Migration advice profession has been the focus of the legislature for a relatively short period. The Migration Act 1958 as at 31 May 1985 (Reprint) had the following provisions on foot; Division 6—Migration Agents Interpretation 46. For the purposes of this Division, a person shall be deemed to act as a migration agent if he demands or receives a fee, commission or other reward for or in relation to services rendered or to be rendered by him in relation to— (a) an application or representation to a Minister, Department or authority of the Commonwealth with a view to the entry into Australia of a non-citizen intending to seek authority under this Act, prior to entry into Australia, to remain permanently in Australia; or (b) arranging or securing the passage of such a non-citizen to Australia. Persons proposing to act as migration agents to give notice to Department 47.

(1) A person shall not act as a migration agent unless he has— (a) delivered to the Secretary to the Department a notice of his intention to do so in accordance with the prescribed form and containing such information as is prescribed; and (b) received an acknowledgment in writing of receipt of the notice.

Penalty: $1,000 or imprisonment for 6 months. (2) Upon receipt by the Secretary to the Department from a person of a notice referred to in paragraph (1) (a), the Secretary shall send, or cause to be sent, by post to that person, at the address specified by that person in the notice, an acknowledgment in writing of receipt of the notice. (3) A person shall not, in a notice under this section, furnish information that is false or misleading in a material particular. Penalty: $1,000 or imprisonment for 6 months. (4) Sub-section (1) does not apply to a person who was a registered agent under the Immigration Act 1901-1949 immediately before the commencement of this Part. Minister may direct persons not to act as migration agents 48. (1) Where the Minister is satisfied that a person is not a fit and proper person to act as a migration agent, the Minister may, by notice in writing, direct that person not to act as a migration agent. (2) Where a direction under sub-section (1) is in force in relation to a person, that person shall not— (a) act as a migration agent; (b) describe himself as a migration agent or by words which suggest that he is a person

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who acts, or is prepared to act, as a migration agent; or (c) advertise that he renders or is prepared to render services of a kind referred to in section 46. Penalty: $1,000 or imprisonment for 6 months. (3) A person in respect of whom a direction is in force under sub-section (1) is not entitled to sue for or set-off any fee, commission or other reward for services of a kind referred to in section 46. Persons not to describe themselves as registered or approved migration agents 49. A person shall not describe himself by words which suggest that he is registered or approved as a person who may act as a migration agent. Penalty: $1,000 or imprisonment for 6 months. Maximum charges 50. (1) The regulations may prescribe the maximum charges that may be made for any services of a kind referred to in section 46, and any regulation made by virtue of this sub-section is applicable to services rendered while the regulation is in force. (2) Where a person proposes to render, or has, after the commencement of this Part, rendered, a service of a kind referred to in section 46 and the maximum charge for that service is not prescribed, or was not prescribed at the time the service was rendered, as the case may be, the Minister may, by notice in writing to that person, fix the maximum charge that may be made for that service. (3) The Minister shall not fix the maximum charge for a service later than one year after the service was rendered. (4) Where the maximum charge for a service has been prescribed or fixed in pursuance of this section, then, notwithstanding the terms of any agreement, a person shall not demand or receive in respect of that service an amount which, together with any amount previously received in respect of that service, exceeds the maximum charge so prescribed or fixed. Penalty: $ 1,000 or imprisonment for 6 months. (5) An amount received in respect of a service referred to in sub-section (4) , whether before or after the maximum charge was prescribed or fixed, is, to the extent that it exceeds that maximum, repayable and may be sued for and recovered in a court of competent jurisdiction. Migration agents liable to furnish particulars of fees, &c. 51. (1) A person shall, if required so to do by an authorized officer by notice in writing, furnish in writing to the authorized officer particulars of any fee, commission or other reward charged or proposed to be charged by him, or of any agreement entered into or proposed to be entered into by him, in respect of any services of a kind referred to in section 46.

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(2) A person shall not— (a) refuse or fail to furnish, within the time specified in the requirement, any particulars which he is required under this section to furnish; or (b)

make a false statement in or in connexion with those particulars

Penalty: $ 1,000 or imprisonment for 6 months. Undertaking to provide passage to be carried out within a reasonable time 52. Where a person has, whether before or after the commencement of this Part, been paid moneys in consideration of a promise to provide or arrange a passage to Australia for a non-citizen intending to seek authority under this Act, prior to entry into Australia, to remain permanently in Australia, the Minister may, by notice in writing served on that person, determine a time within which it is reasonable that the passage should be provided or arranged, and where such a determination has been made, that person shall, notwithstanding the terms of any agreement, either— (a) provide or arrange the passage within the time determined by the Minister; or (b) within that time refund those moneys to the person by whom they were so paid. Penalty: $2,000 or imprisonment for 12 months. Provisions relating to offences 53. (1) Where a person convicted of an offence against this Division is a body corporate, the penalty for the offence is— (a) where the prescribed penalty for an offence apart from this section is $1,000 or imprisonment for 6 months—a fine not exceeding $2,000; and (b) where the prescribed penalty for an offence apart from this section is $2,000 or imprisonment for 1 year—a fine not exceeding $4,000. (2) Where a person is convicted by a court of an offence against this Division and another person has suffered loss by reason of that offence, the court may, in addition to any penalty imposed upon the offender, order the offender to make to the person who suffered the loss such reparation, by way of money payment or otherwise, as the court thinks fit. (3) Where a court has made an order under this section for the making of preparation by way of money payment, a certificate under the hand of the clerk or other appropriate officer of the court, specifying the amount ordered to be paid and the persons by whom and to whom the amount is payable, may be filed in a court having civil jurisdiction to the extent or that amount and is thereupon enforceable in all respects as a final judgment of that court. (4) For the purposes of this section, where a person is convicted of an offence against sub-section 50 (4) and the person from whom the amount in respect of the service was demanded or received has paid to the offender, in respect of the service, an amount exceeding the fixed maximum, that person shall be deemed to have suffered loss by reason of the offence to the extent of the amount of the excess.

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In 1992 the Government introduced formal regulation of the profession with the introduction of the Migration Agents Registration Scheme (MARS). That scheme, which included the requirement that all persons providing “immigration assistance” be registered under MARS. Cunliffe’s Case (Cunliffe & another v The Commonwealth of Australia 182 CLR 272) found, inter alia, that the registration system for persons who gave immigration assistance (including Lawyers) was a wholly valid law with respect to aliens within Section 51 (XIX) of the Commonwealth constitution. The majority found that the restrictions imposed by the statutory scheme did not interfere with any freedom of communication implied by the constitution (Brennan, Dawson, Toohey and McHugh JJ). In short Solicitors and Barristers were required to register as Migration Agents in order to give “immigration assistance”. In the Migration Act 1958, the definition of immigration assistance is as follows; Section 276

Immigration assistance

276 (1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by: (a) preparing, or helping to prepare, the visa application or cancellation review application; or (b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or (c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or (d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application. (2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by: (a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or (b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or (c) representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations. (2A) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

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(a) preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person); or (aa) preparing, or helping to prepare, a request to the Minister to exercise a power under section 195 A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or (b)

advising the other person about making a request referred to in paragraph (a) or (aa).

(3) Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely: (a) does clerical work to prepare (or help prepare) an application or other document; or (b) provides translation or interpretation services to help prepare an application or other document; or (c) advises another person that the other person must apply for a visa; or (d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information. (4) A person also does not give immigration assistance in the circumstances prescribed by the regulations.

Section 277 277 (1) lawyer:

Immigration legal assistance For the purposes of this Part, a lawyer gives immigration legal assistance if the

(a) acts for a visa applicant or cancellation review applicant in preparing for proceedings before a court in relation to the visa application or cancellation review application; or (b) represents or otherwise acts for a visa applicant or cancellation review applicant in proceedings before a court in relation to the visa application or cancellation review application; or (c) gives advice to a visa applicant or cancellation review applicant in relation to the visa application or cancellation review application that is not advice for the purpose of any of the following: (i) the preparation or lodging of the visa application or cancellation review application; (ii) proceedings before a review authority in relation to the visa application or cancellation review application; (iii) the review by a review authority of a decision relating to the visa application or cancellation review application. (2)

For the purposes of this Part, a lawyer also gives immigration legal assistance if the lawyer:

(a) represents or otherwise acts for a person in proceedings (or in preparing for proceedings) before a court that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations; or (b) gives advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations (except advice described in subsection (3)). (3) A lawyer does not give immigration legal assistance in giving advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations if the advice is for the purpose of:

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(a) the preparation or lodging of an approved form putting forward the name of a visa applicant; or (b) the preparation or lodging of an approved form undertaking sponsorship; or (c) proceedings before a review authority that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant); or (d) the review by a review authority of a decision relating to the visa for which the person was nominating or sponsoring the visa applicant (or seeking to nominate or sponsor the visa applicant).

(4) A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise his or her power under section 351, 391, 417,454 or 501J in respect of a decision (whether or not the decision relates to the other person). (5) A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise a power under section 195 A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person).

Solicitors and Barristers Lawyers are required to be registered if they give “immigration assistance”. However, lawyers do not need to be registered if their assistance is limited to court proceedings seeking, for example, judicial review arising out of a visa refusal. That conduct is characterised as “immigration legal assistance”. (Section 277) However, antecedent advice concerning, for example, the requirements attaching to a visa is “immigration assistance” as is subsequent advice ex the legal proceedings. This can give rise to a number to a number of potential difficulties in the carriage of a matter through the Courts. For example; A client approaches a Solicitor seeking advice about an appeal to the Federal Magistrates Court during the course of that advice the Solicitor tells the client they will be granted a bridging visa. That advice is “immigration assistance”. Any answers to questions touching upon a visa application or the attendant conditions will also be “immigration assistance”. When the proceedings are concluded, any subsequent applications for bridging visas or proceedings in the Migration Review Tribunal (MRT) or the Refugee Review Tribunal (RRT) will necessarily constitute “immigration assistance” and require the Solicitor or Barrister to be a “Registered Migration Agent” 8


(RMA) with the Office of the Migration Agents Registration Authority (OMARA). In 1994 the joint standing committee on Migration was established to investigate, in general terms, the operations and effectiveness of the scheme. The brief of review was extended for a further 3 years and a subsequent review in 1996/97 made a number of key findings including the delays in complaint handling and the structure of registration was uneconomical. On 21 March 1998 the Migration Institute of Australia (MIA); A membership organisation representing RMA’s (agents); was appointed as the regulatory authority, the Migration Agents Registration Authority (MARA). The MIA entered into a Deed or Arrangement with DIAC touching upon the regulatory aspects of the MIA/MARA and DIAC arrangements. Broadly stated, the MARA was governed by the Board of the MIA who also sat (albeit in separate proceedings) as the board of the OMARA. Notwithstanding a perception of a conflict of interest these arrangements remained in place until an announcement on 9 February 2009. New body to regulate migration agents Media Release Date: 09 February 2009 The Minister for Immigration and Citizenship, Senator Chris Evans, today announced the establishment of a new body to regulate migration agents after a review found dissatisfaction among consumers and potential conflicts of interest under the current arrangements. Senator Evans said that from July 1, the new Office of Migration Agents Registration Authority (MARA) will undertake the regulatory functions which have been operated under statutory selfregulation by the Migration Institute of Australia (MIA) since 1998. "The current arrangement has the industry association managing the regulatory function of its own members -which includes the handling of complaints - and this has caused serious concerns among consumers and stakeholders," Senator Evans said. The 2007-08 Review of Statutory Self-Regulation of the Migration Advice Profession, which was undertaken to assess the effectiveness of the regulatory scheme, recommended that the government consider establishing a regulatory body separate from the MIA to address the concerns. "Unprofessional, incompetent or unethical behaviour by migration agents affects the lives of consumers, challenges the integrity of Australia's visa program and brings the entire profession of more than 3700 migration agents into disrepute," Senator Evans said. "It is therefore in the consumers', the government's and the profession's collective interests to address the serious concerns raised in this review.

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"As migration decisions are life-changing and involve considerable financial and emotional investments on behalf of prospective migrants, it is important they have confidence in the professionalism and integrity of their migration agent. "The changes we are making will provide greater confidence to the consumers of migration advice services and remove concerns about potential conflicts of interest." The new MARA will be supported by an advisory board, which will include a nominee from the MIA, a nominee from the Law Council of Australia, a consumer representative and a community representative. The office will receive administrative support from the Department of Immigration and Citizenship. Senator Evans said that the establishment of the new body is the first step in the implementation of a range of recommendations made in the review.

The new arrangements came into effect on 1 July 2009 with the establishment of the Office of the Migration Agents Registration Authority (OMARA) The OMARA describes itself and its functions as follows: What is the Office of the MARA? The Office of the Migration Agents Registration Authority (Office of the MARA) is a discrete office attached to the Department of Immigration and Citizenship. The functions of the Office of the MARA are set out in s316 of the Migration Act 1958 (the Act). The Office commenced operations on 1 July 2009. Key objectives are to ensure that:     

only suitable persons are registered as migration agents, and unsuitable persons are refused registration or re-registration registered agents maintain appropriate knowledge to enable them to provide accurate advice to consumers all complaints about the services of registered, or formerly registered migration agents are appropriately addressed the Office of the MARA works collaboratively with the department and other bodies such as prosecuting or regulatory authorities to address the activities of agents outside its mandate consumers understand their rights and agents understand their obligations under the regulatory framework.

The Requirements for Registration o Procedural MARA is required to maintain a register of Migration Agents. Section 287 of the Act specifies the information that is required to be maintained on the register. Section 288 requires, inter alia, the publication of a notice in prescribed form indicating an intention to be registered. The notice is intended to elicit objections to registration which are in turn matters to be taken into account in determining eligibility for registration in conformity with Section 290.

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All candidates for registration must complete an “approved form” (MO1) [Section 288(3)]; a statutory declaration; AFP police check; evidence of “knowledge” and be the holder of a current policy of profession indemnity (S292B). The relevant registration fee is $1760 for “commercial” agents and $160 for “non-commercial agents”. In the event that an Agent is the subject of a decision to cancel or suspend their registration the OMARA must not consider any re-registration application while any review or appeal is on foot. The practical effect of section 288 is that where an Agent has been suspended or cancelled and they have an appeal on foot and by reason of that appeal and orders for a stay; the expiration of the registration would ordinarily require the making of an application for re-registration but that the prohibition in section 288 would prevent re-registration. This would inevitably have serious consequences for the Agent and their business. o Substantive Requirements An applicant for registration must meet registration requirements (S289A). They must be a fit and proper person (S290); they must not be related to a person who lacks integrity (S290); they must have completed Mandatory CPD (S290A); they must have paid any registration fee (S290B); they must not have been refused registration within the preceding 12 months (S291) or not served any suspension period previously imposed (S291A); or had their registration cancelled in the last 5 years (S292) or been barred from being registered under Sections 311A or 311L (S292A). I think it is fair to say that the procedural and substantive requirements are reasonably complex. However at last count there were in excess of 4500 RMAs. o The Pivot Point for Registration Section 290 requires that an Applicant must be both a “fit and proper person” (a); and is a person of “integrity” (b) and is not related by employment to a person who is not of “integrity” (c).

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Section 290(2) then recites in subsections (a) – (h) those matters to be taken into account in determining whether the Applicant is both a fit and proper person and a person of integrity.

o Command and Control The link between “immigration assistance”, DIAC and the high visa refusal rate: From 1 July 2004; the Minister, acting on the advice of DIAC, has the power to refer to the OMARA Agents (including Lawyers) for a sanctuary (S306bAGAC or S306AG) where the Agent has a “high visa refusal rate”. The power to determine first a high visa refusal rate followed by the referral to the OMARA for sanction operates independently and is “discretionary”. The Consequences of the Regulatory Scheme 1. The involvement of non-lawyers in the provision of “immigration assistance” has created, in my view, a diminution of the importance attaching to the provision of complex advice to vulnerable consumers. Given that the primary focus of the regulatory scheme was to provide protection to consumers; the decision to allow non-lawyers to provide what is in essence complex legal advice, creates a real risk that consumers will be disadvantaged. That is not to say that all RMAs are incapable of providing immigration assistance at a standard which is unacceptable; but that the complexity of the statutory scheme requires practitioners with the requisite training and skills necessary to deliver the assistance required. 2. Further, the role of DIAC in administering the regulatory scheme through the proxy of the OMARA acts to inhibit the scrutiny of DIAC’s practice and procedure by reason of the threat of Statutory Sanction arising out of the provision of alternate interpretations of the Act and regulations. For example, in October of 2007, the Secretary of the Department expressed the view that the promotion of alternative advice other than that

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encompassed by the relevant policy created unrealistic expectations and thus disadvantaged vulnerable consumers.

He stated: “Both the Government and the Migration advice profession are very aware that there is still work to be done to raise the overall level of professionalism amongst registered agents. My personal view of the profession is that generally it operates with high levels of professionalism and integrity. However, one obvious way in which this is not happening, is the persistence by some agents in seeking out “loopholes” in legislation and policy settings. Whilst you are required to act in the interest of your client, it is our view that it disadvantages your clients if you are constantly looking for “loopholes” at the margins of policy. It is also true that those who persist in doing it, are in fact disadvantaging the majority of you by forcing the department to re-direct scarce resources at addressing these “loopholes”, away from the important task of processing visas through well established pathways and or their merits as swiftly as possible. This is something that I would ask the MIA to examine closely and work with us to address.” Speech: Andrew Metcalfe, Secretary Department of Immigration and Citizenship “Migration – Australia’s Future?” Migration Institute of Australia 2007 National Conference, Gold Coast, 19/10/2007

The view that advice consistent with “policy settings” was in effect best practice and was overall consistent with the best interests of the client; misunderstands the nexus between the professional advisor; the client and the statutory scheme. The reliance of DIAC on policy (expressed in PAMS and MIs) as opposed to the plain words of the statute has created a system and culture of compliance which has been shown to be inconsistent with the expressed intention of Parliament as articulated in the Statutory Scheme. This is only possible, in my view, where Lawyers are discouraged from participating in the Migration advice profession by reason of artificial barriers to practise. 13


Briefly stated, Lawyers, as a general rule, by virtue of their training and specialised skills are less likely to be compliant and less likely to be intimidated by a threat or sanction.

3. There are a number of barriers to the entry of Lawyers into the migration advice profession. They include the cost of registration ($1760PA); the requirement for CPD consistent with the requirements of OMARA (6 units of 90minutes PA) and perhaps most alarmingly; the disqualification of clients from the protection of the Law Societies’ fidelity fund and Professional Indemnity Insurance Coverage.1 The Law Council stated: “39.

In addition, it is considered that “immigration assistance” may fall outside activities covered by most PII policies offered to legal professionals, while non-lawyer agents’ PII cover may not extend to any Court related work which nonetheless authorised by Section 267 of the Migration Act 1958.”2

4. It is fair to say that the Law Council has expressed its view clearly on the consequences of dual regulation and I invite you to review the arguments set out in the productivity commission “Annual review of regulatory burdens on business – business and consumer services”; 20 April 2010.

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LCA Submission – 2007/08 review of MARA LCA Submission – 2007/08 review of MARA

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Conclusion I do not think that the protection of consumers is met by the creation of artificial barriers which have the effect of discouraging Lawyers from the practise of the Law in this very interesting and complex area of the Law. The training and habit of Lawyers in questioning the status quo has driven change for the better. The role of the Courts in protecting fundamental civil and political rights in Immigration Law has been pivotal in the protection of consumers in all fields including immigration. The belief of the bureaucracy that the provision of advice inconsistent with policy and legislative settings is a simple misunderstanding of the role of Lawyers. I believe that the continued presence of Lawyers in the migration advice profession is critical to the protection of vulnerable consumers against bad advice, bad policy and bad laws. I welcome the prospect of having more Lawyers in the migration advice profession.

C.H. Levingston Solicitor Sydney October 2010

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Immigration Assistance