3.1
Chapter 3 provides a summary of submitters’ views on registered migration agents. It examines the registration requirements of RMAs, the numbers and patterns of unregistered migration agents and education agents providing unlawful immigration services, the powers of the Office of the Migration Agents Registration Authority (OMARA), and considers whether migration agents should provide other services to clients.
Perception of migration agents
3.2
By and large submitters to this inquiry were of the view that the majority of registered migration agents were diligent and professional and played a vital role in Australia’s immigration system. There were however submitters who reported anecdotal evidence that some migration agents were engaged in unlawful or unethical behaviour.
3.3
The Refugee Council of Australia (RCA) commented on the vital role migration agents played, particularly assisting refugees and asylum seekers:
Migration agents play a vital role in assisting refugees and people seeking asylum gain protection and reunite with separated family members. Often, their support can mean life or death for a person or their loved ones.
3.4
Conversely, the RCA commented that they had ‘heard numerous examples of unethical practice from migration agents.’
3.5
The Federation of Ethnic Communities’ Councils of Australia (FECCA) and the Settlement Council of Australia (SCoA) acknowledged that their constituents had reported both positive and negative experiences with migration agents but agreed that they played ‘a critical role in the migration application process, especially in instances of complexity.’ They added:
While FECCA and SCoA are aware of instances of registered agents operating unethically, it is our understanding that the vast majority operate lawfully and adhere to sector regulations and guidelines.
3.6
The Asylum Seeker Resource Centre (ASRC) agreed with the view that many migration agents were ‘very professional and competent migration agents who provide careful and diligent services that add tremendous value to their clients’ cases.’ They did however note a number of problems their clients had experienced which included:
migration agents taking money without completing the work or absconding;
failing to meet lodgement deadlines;
retaining original identity documentation;
having insufficient grasp of the English language;
providing incorrect advice; and
failing to keep clients adequately updated.
3.7
The Humanitarian Group further commented that their clients had frequently reported having experiences with unethical practice by migration agents which included:
registered migration agents overcharging and charging for the preparation of visa applications that have no real chance of success, particularly Class XB humanitarian visas;
registered migration agents preparing protection visa applications with insufficient knowledge and experience of that discrete and complex area of law; and
registered migration agents allowing unregistered individuals to operate out of their premises so that clients believe they are receiving qualified advice when they are not.
3.8
The Humanitarian Group commented that this unethical behaviour was due to a small number of migration agents.
3.9
Lanso International Migration & Education Service (LIMES), a migration agency, noted that they had experienced:
…a few victimised visa applicants whose visa application paths, or even life paths were ruined by misconducts of registered migration agents, including failure to exercise due diligence in ensuring colleagues in their offices were acting lawfully.
3.10
Johannessen Legal & Migration spoke of their experience where clients had suffered considerable financial loss and ‘lost years of education, work experience in Australia, and all and any options that were available to them to remain in Australia as a result of wrong, inconsiderate, and uneducated advice by migration agents.’
3.11
Mr Brian Woods (private capacity) identified some media reports about the unlawful practices of migration agents. Mr Woods put forward the view that migration agents were un‑policed and alleged that the migration agent system had become a visa trading network.
3.12
Ms Marianne Dickie (private capacity) acknowledged that migration agents were not perfect but believed that individuals who had engaged a migration agent were victims of a complex migration process rather than unethical behaviour:
Whilst I acknowledge that all agents are not perfect, it is my experience that constituents who have sought assistance from their parliamentarians are not the victims of unethical migration agents. Instead they are victims of the complexity of the migration process, poor decision making, lack of communication from the Department [of Home Affairs] and/or their own decisions regarding their options.
3.13
The Migration Alliance, a membership organisation made up of Registered Migration Agents (RMAs), stated that the majority of cases involving serious fraud was rare:
Although there have been some spectacular instances of fraudulent conduct engaged in by RMAs concerning the provision of bogus documents and false statements the majority of cases involving serious fraud are in the main, relatively rare.
3.14
LIMES alleged that some registered migration agents shared their registration:
Some registered migration agents have been reckless in allowing their colleagues or friends to use their registered migration agent status to facilitate migration business by non-registered migration agents, who are often their colleagues or friends.
Registration requirements
3.15
As noted in chapter 2, individuals who would like to register as migration agents for the first time, or after their previous registration lapsed for over twelve months, must meet a number of requirements.
3.16
Submitters to the inquiry commented and made suggestions and additions to a number of the migration agent registration requirements including: technical proficiency through education; English proficiency; peer assessment; issuing of a practicing certificate; regulation by legal bodies; and changing migration agent nomenclature.
Technical proficiency through education
3.17
In order to obtain registration as a migration agent, individuals are required to have obtained an educational qualification such as an Australian legal practising certificate or a graduate diploma in (Australian) migration law. Submitters’ comments on the current registration requirements were varied.
3.18
Global Mobility Immigration Lawyers (GLOMO) were supportive of the recently introduced registration requirements currently being implemented that individuals hold a graduate diploma in Australian migration law and practice and pass a national Capstone assessment.
3.19
The Department of Home Affairs noted that it had ‘entered into an agreement with the College of Law at the end of 2017 to develop and deliver the Capstone assessment from July 2018.’ They added:
…we expect to see the impact of the Capstone assessment’s introduction on the professional standards of the migration advice sector in late 2019 after the new agents have had an opportunity to practice.
3.20
GLOMO suggested that the qualifications required to register as a migration agent could be increased and ‘brought into line with the Australian and New Zealand Standard Classification of Occupations (ANZSCO), namely a bachelor degree or higher qualification.’
3.21
Fragomen Australia were of the view that a 12 month course provided:
…insufficient training to prepare a person to competently provide unsupervised migration law assistance as a professional expert and trusted advisor, without mentoring or supervision and without any restrictions on the area of migration law that they are able to practice.
3.22
Ms Marianne Dickie noted that concern over the ‘adequacy of qualifications for accreditation of agents has been consistent over the past twenty years.’
3.23
Ms Dickie commented that the ‘move to a Graduate Diploma will provide additional time and opportunity to integrate more practice based course work into the education of agents’, but stated that a university qualification could not cover all aspects of practising as a migration agent:
No one graduates from a degree as a fully formed professional. Whilst the education of agents at a Graduate Diploma level will undoubtedly raise the level of formal knowledge a new graduate has: the course work may not include any training in business, marketing, the vagaries of online applications and computerised decision making and dealing with constant legislative change. The ever-evolving knowledge of practice can only come from the profession.
3.24
Associate Professor Mary Anne Kenny, Murdoch University, believed that recommending any changes to the education qualification requirements would be premature considering the recently introduced registration requirement that individuals complete a Graduate Diploma in Australian Migration Law and Practice (GDAMLP):
There has been a great deal of work, planning and preparation in the development and implementation of the new GDAMLP. In our view, the GDAMLP addresses many of the concerns raised by the Kendall Review and earlier reviews. To make any changes at this stage would be premature and create too much uncertainty for students and potential migration agents.
3.25
The Migration Institute of Australia (MIA) stated that the recent entry qualification requirements were robust:
It is the view of the MIA that the recent changes to the ‘entry to practice’ qualifications and the introduction of the Capstone Assessment for Registered Migration Agents, provides a robust platform for those seeking registration as a migration agent in Australia.
3.26
The MIA added that the professional qualification is commensurate with professional qualifications required by the Canadian, British and New Zealand immigration adviser regulatory authorities.
3.27
The Law Council of Australia were supportive of the qualification requirements stating that:
They provide a stronger basis for the acquisition and assessment of whether person has a body of knowledge, practical skills and values necessary for effective and ethical practise as an entry-level migration agent.
3.28
The Migration Alliance stated that the current accreditation process sets high standards and noted that the relevant qualifications are ‘provided by leading tertiary educational institutions.’
3.29
Newland Chase Australia (NCA) & Acacia Immigration Australia (AIA) supported the ‘recent introduction of the Graduate Diploma in Migration Law and Practice as the entry level qualification for migration agents.’
English proficiency
3.30
Submitters commented on the importance of English language proficiency in understanding complex legislation and representing clients from culturally and linguistically diverse backgrounds.
3.31
GLOMO noted the importance of migration agents being technically proficient in English:
As alluded to above, migration agents are often called on to interpret and apply laws that have far-reaching effects on the lives of their clients. They must also explain these laws to their clients, and advocate on their behalf in English.
3.32
GLOMO supported an increase in the English language requirements for migration agents:
…comparable to those required of foreign lawyers by the Legal Admissions Board: IELTS [International English Language Testing System] 8.0 for writing, 7.5 for speaking, 7.0 for reading and 7.0 for listening.
3.33
The Law Council of Australia (LCA) highlighted that work undertaken by migration agents was in complex areas of law, administrative policy and practice and could be linguistically demanding. They added that migration agents were required to:
understand and interpret complex legislation;
explain documentation or correspondence that is in English;
draft documents in English, including completing forms and statements; and
speak, listen, read, write and otherwise communicate effectively with the Department of Home Affairs and other relevant authorities.
3.34
The LCA agreed with GLOMO’s suggestion that all entry-level migration agents should be required to ‘achieve an average Band Score of at least 7.5 under the Academic version of the IELTS.’
3.35
Johannessen Legal & Migration stated that ‘mastering English language is the most essential tool the agents must have in order to be able to understand the Act, the Regulations and the Policy documents so that the advice they provide to applicants are accurate and in their best interest.’ Johannessen Legal & Migration added:
It is not sufficient that agents are able to communicate with their fellow country clients without any language problem. It is crucial that they have the English skills and the ability to understand the technicalities of the law, and that they are able to communicate their client's position to the Department and to the Tribunal accurately, properly and competently.
3.36
Dr Anthony Pun, a registered migration agent, held a contrary view to those above stating that the English language requirement should not be increased as it would disadvantage individuals from linguistically diverse backgrounds.
3.37
Charles Sturt University (CSU) and the MIA were both of the view that the current English language requirements were sufficient and recommended that no changes be made.
3.38
The MIA noted that Canada, New Zealand and the United Kingdom had similar English language requirements for those wishing to register as a migration agent (Table 3.1).
Table 3.1: Registered Migration Agent / Immigration Adviser - English proficiency requirements country comparison
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|
|
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English Language
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IELTS Academic 7 minimum overall with no lower than 6.5 in any module – formally tested if required or equivalent
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IELTS Academic 7.5 listening, 6.5 speaking, reading and writing modules or equivalent OR French Level 8 language equivalent
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IELTS Academic 7 minimum overall with no lower than 6.5 in any module or equivalent
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Written assessment of language skills
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Source: Migration Institute of Australia, Submission 15, Appendix A, p. 66.
3.39
Ms Dickie believed that English language proficiency had ‘been addressed previously within the legislation.’
Migration agent terminology
3.40
Several submitters commented on the terminology registered migration agents use to represent themselves such as expert of specialist. Some submitters believed that this terminology could misrepresent a migration agent’s qualifications or experience.
3.41
Peer assessment is a common form of professional development across many industries. A few submitters suggested establishing a similar requirement in the migration profession to identify migration agents that were either a specialist or expert in their field.
3.42
The LCA noted that in order to obtain accredited specialisation by the relevant professional association, a legal practitioner was required to undertake a number of tasks which included completing a structured peer assessment program with ‘examinations, assignments and other actions to demonstrate a sufficient level of expertise and standing to justify the entitlement to use the words accredited specialist.’
3.43
The LCA held the view that migration agents should complete a similar requirement as a legal practitioner to obtain accredited specialisation recommending:
That the use of words such as ‘specialist’ or ‘expert’ in advertising or promotional activities by migration agents only be permitted where the migration agent has completed a structured, peer assessed specialist accreditation program through a recognised professional association.
3.44
The LCA advised that it received reports that a large number of RMAs commonly use terminology such as ‘specialist’ or ‘expert’ which they believed could be misinterpreted by clients:
…the use of this terminology could be viewed as misleading if the migration agent does not in fact have knowledge and expertise in migration law matters over and above the level of knowledge and expertise of migration agents generally.
3.45
Dr Pun, when responding to the LCA’s recommendation for peer assessment, believed that there were no ‘adverse reports that would justify these changes.’ He did however suggest that the OMARA, as the regulating authority for migration agents, could provide definitions for ‘specialist’ or ‘expert’ and ‘make regulations for its proper use.’
3.46
Ms Dickie advised that the ‘profession has been quietly building in new and modern forms of peer supervised practice.’
3.47
One submitter commented that the terminology used by migration agents, as well as the title of ‘migration agent’, could be misleading clients.
3.48
Mr Saikumar Iyer, a registered migration agent, believed that the term ‘agent’ could be misinterpreted ‘as it conveys a different meaning within certain communities and groups.’
3.49
Mr Iyer noted that other countries consider agents as ‘intermediaries between a government department and a client in order to produce a successful outcome (for example by offering kickbacks).’ He added that the term agent could have a negative perception:
In other words, the term ‘agent’ can be interpreted to indicate that a successful outcome will be obtained even if certain requirements are not met. Such connotation happens to be directly opposed to the Code of Conduct which maintains that providing assurance of successful outcome to a client is unlawful. Therefore, it is essential to change the terminology from “agent” to something more appropriate, so as to avoid portraying such a negative image of the occupation.
3.50
Mr Iyer suggested changing the terminology to those used by either New Zealand (Licensed Immigration Adviser) or Canada (Regulated Immigration Consultant).
Issuing of a practicing certificate
3.51
Two submitters representing the legal profession raised concerns about RMAs using the term ‘practising certificate’ in advertising. They put forward the view that RMAs using the term could be misrepresenting their level of experience or expertise.
3.52
In their submission, Fragomen Australia provided some background on the registration requirements needed to practice as a lawyer in Australia:
Following completion of an academic qualification in law, a person must complete practical legal training through either a Graduate Diploma of Legal Practice course, or 12 months articles of clerkship (depending on jurisdiction). Following admission to practice, a two-year period of supervised legal practice is required before a person can apply for an unrestricted practicing certificate. Until a person obtains an unrestricted certificate they must practice under the supervision and mentoring of a person with an unrestricted certificate.
3.53
Fragomen Australia suggested introducing a tiered system of registration for migration agents noting what they believed were a number of benefits:
Given the vulnerable position of many visa applicants and their reliance on RMAs to navigate through the complexities of migration law, a similar form of tiered and incremental registration would be of benefit to the community by better informing and protecting consumers of migration advice; to the Department through improvements in application quality; and to the migration advice profession through improvements in the profession’s reputation and public perception.
3.54
The LCA raised concerns that ‘some migration agents have been using the term ‘practising certificate’ when referring to a certificate issued by a particular migration association.’
3.55
The LCA noted additional concerns that migration agents who refer to practicing certificates in advertising or public displays ‘create a misleading impression among consumers that the person referred to in the certificate might be a legal practitioner.’
3.56
The LCA recommended limiting the use of ‘practising certificate’ to individuals who have been issued one by a ‘legal profession regulatory authority pursuant to legislation.’
3.57
Dr Pun stated that limiting the use of the ‘practising certificate’ was unwarranted as both professions practice law ‘with migration agents only dealing with a small part portion of field.’
3.58
The Department of Home Affairs at a public hearing provided statistics on the number of migration agents that held a legal practicing certificate stating that at the ‘end of 2017 there were 7,272 registered migration agents, of which 2,424 held a legal practicing certificate.’
Regulation by legal bodies
3.59
One submitter noted that RMAs provide professional services of a legal nature and recommended that they ‘be regulated by the same body that regulates legal practitioners in their State or Territory.’
3.60
The submitter reasoned that legal professional bodies would be well suited to regulate RMAs because:
the existing disciplinary and regulatory processes for legal practising certificate holders could readily expand to registered migration agents;
they would be recognised as highly educated professionals that are subject to the same ethical obligations as legal practising certificate holders; and
problems caused by dual registration would be removed.
3.61
The submitter held the view that regulation by the legal profession would support individuals wishing to ‘promote career progression from Registered Migration Agent to Legal Practitioner.’
3.62
The Department of Home Affairs highlighted that the Migration Amendment (Regulation of Migration Agents) Bill 2018, if passed, ‘will enable legal practitioners to be regulated by their requisite law society without unnecessary dual regulation by the OMARA.’
Committee comment
3.63
The Committee thanks all of the submitters for their varied recommendations on the registration requirements for migration agents and notes that the preponderance of submissions to this inquiry held the view that the registration requirements are currently appropriate and should not be amended.
3.64
The Committee notes that recommendations from the Kendall Review, which included new registration requirements, were recently implemented. The new registration requirements introduced on the 1 January 2018 and 1 July 2018 respectively are completion of a Graduate Diploma in Migration Law and Practice; and passing an independent Capstone assessment.
3.65
The Committee notes that due to the relatively short period of time since their implementation, it is difficult to ascertain the effectiveness of these changes, and encourages the Department of Home Affairs to consider the results of these changes in some manner.
3.66
Submitters raised some pertinent points on the current registration requirements and offered recommendations that would greatly benefit from further consideration.
3.67
The Committee believes that it would be beneficial for the Australian Government to undertake a review into the effectiveness of the current registration requirements having regard to the requirements that were most recently implemented. The review could focus on areas such as technical proficiency through education; English proficiency; peer assessment; issuing of a practicing certificate; regulation by legal bodies; and changing migration agent nomenclature.
3.68
The Committee considers a review of the registration requirements would help ensure that Australia’s registered migration agents are truly world class providers of immigration assistance. A review focussed on whether migration agents have the required educational and technical knowledge to provide outstanding customer service benefits not only Australia’s reputation but also provides greater consumer protection to migrants who are often vulnerable to exploitation.
3.69
The Australian Government should consult with relevant migration agent peak bodies to determine a mutually agreeable time in which to undertake the review.
3.70
The Committee recommends that the Australian Government, in consultation with relevant migration agent peak bodies, undertake a review of the current registration requirements for migration agents, having regard to:
the effectiveness of the current registration requirements;
technical proficiency through education;
issuing of a practicing certificate;
regulation by legal bodies; and
changing migration agent nomenclature.
Continued professional development
3.71
Migration agents must complete a number of professional development activities each year prior to annual re-reregistration. A few submitters raised concerns about the Continuing Professional Development (CPD) arrangements which commenced on 1 January 2018.
3.72
The MIA provided a brief background on the current CPD requirements noting that the Kendall Review recommended deregulating the CPD provisions in its report:
Australian registered migration agents are becoming accustomed to a new CPD environment, which commenced in January 2018. This legislative deregulation of CPD provision resulted from a recommendation of the 2014 Independent Review of the Office of the Migration Agents Registration Authority by Dr Christopher Kendall (Kendall Review) that ‘the type and number of service providers that can operate should be determined by the market’.
3.73
The MIA added that rather ‘than approving all individual CPD activities as previously, the OMARA now approves CPD providers, who are then expected to comply with a set of CPD Provider Standards.’
3.74
The MIA, while supportive of a CPD system, expressed concern about the quality of the delivery of CPD courses by providers:
…the MIA is gravely concerned about the direction of the CPD provision since its deregulation. The MIA believes that the quality of CPD education has been severely diluted by this recent deregulation of the CPD sector, which has led to the market being flooded with a low-cost, high-volume approach CPD provision. Some currently approved CPD providers are pursuing pricing strategies that offer CPD products at seemingly unrealistic pricing levels. Such strategies can only negatively impact the quality and integrity of CPD provision.
3.75
The MIA held the view that this practice would drive quality providers out of the market, undermine the quality of migration advice, and damage the integrity of the advice provided by RMAs. The MIA made a number of recommendations including:
that the OMARA develop CPD course policy and guidelines, ‘setting out the minimum requirements for each CPD category and each CPD format, to provide benchmark standards across CPD offerings’;
that the OMARA undertake an audit of the CPD providers’ compliance with the standards; and
that the OMARA be provided with sufficient resources to monitor the compliance of CPD providers and their course offerings.
3.76
Ms Angela Chan (private capacity) commented that the CPD providers offered limited value for money and suggested that the OMARA could ‘look at providing a better service in professional training.’
3.77
Ms Jane Wilson, a RMA, suggested that the OMARA keep an updated listed of RMAs or immigration lawyers which record their registration, CPD history and the relevant regulatory authority in each State/Territory.
3.78
Ms Dickie stated that practice knowledge was obtained through multiple avenues successfully including ‘informal networking, Podcasts, CPD courses and conferences.’ Ms Dickie added that social media played a very significant role in gaining professional competence:
…social media that provides access to constant contact with peers that has proven to be the most successful means of gaining professional competence and confidence. Social media platforms allow agents to keep abreast of the changes to law, and provides them with a place to share ideas, experiences and questions in a forum where there are trusted and experienced agents to assist.
3.79
As noted in Chapter 2, the Department of Home Affairs in its submission highlighted that it would be undertaking a review of the CPD arrangements and auditing the operation of CPD providers over the next two years.
Supervised practice
3.80
Two successive reviews of migration agents, the Hodges Review of Statutory Self-Regulation of the Migration Advice Profession (Hodges Review) and the Kendall Review both recommended establishing supervised practice for newly qualified migration agents.
3.81
The Kendall Review found ‘that the greatest risk to consumers stems from the lack of supervision of relatively inexperienced RMAs, who receive unconditional registration on first entering the profession.’
3.82
Many submitters to the inquiry also recommended that newly qualified migration agents undergo a period of supervised practice prior to obtaining a certificate to practice.
3.83
As noted above, Fragomen Australia held the view that a 12 month course provided inadequate training without mentoring or supervision and recommended establishing a tiered system of registration which included supervision. They added that registration to practice as a lawyer in Australia could act as an appropriate comparative model:
Following completion of an academic qualification in law, a person must complete practical legal training through either a Graduate Diploma of Legal Practice course, or 12 months articles of clerkship (depending on jurisdiction). Following admission to practice, a two-year period of supervised legal practice is required before a person can apply for an unrestricted practicing certificate. Until a person obtains an unrestricted certificate they must practice under the supervision and mentoring of a person with an unrestricted certificate.
3.84
The MIA in a survey of its members noted that 66 percent of its respondents ‘were vocal on the need for some form of internship or supervised practice to be introduced.’ The MIA added that it had:
…observed the significant difficulty some newly registered migration agents experience when starting out in the profession and is at times extremely concerned about the complex cases some will take on with little experience.
3.85
The MIA pointed out that the OMARA rejected the idea of supervised practice because ‘there would be too few supervised employment opportunities available, due to the high number of migration practices operated by sole traders.’
3.86
The MIA pointed out that in Canada, New Zealand and the United Kingdom new migration advisors ‘must undergo periods of supervised practice before unrestricted practicing licenses are granted.’
3.87
The MIA was supportive of introducing ‘supervised practice, mentoring or internship for newly registered migration agents’ providing it was practical, affordable and not exploitative.
3.88
The MIA did however suggest that Australia could adopt the United Kingdom’s (UK) levels of immigration advice and services for immigration advisors.
3.89
The UK has three levels of immigration advice and services which are regulated by the Office of the Immigration Services Commissioner (OISC):
Level 1 – Advice and Assistance advisors are permitted to make applications that rely on the straightforward presentation of facts to meet a set of qualifying criteria;
Level 2 – Casework advisors are authorised to handle more complex applications within the Immigration Rules as well as applications outside the Rules and applications under UK visas and immigration concessionary or discretionary policies; and
Level 3 – Advocacy and Representation advisors are able to follow the lodging of the notice of appeal against refusal as well as the conduct of specialist casework.
3.90
Level 1 immigration advisors work under supervision for up to twelve months to the next advice level. At the end of the supervisory period the immigration advisor must ‘submit a competence statement at the higher Level for which he/she has been supervised and be ready to take a competence assessment.’
3.91
The OISC, in their Guidance Note on Supervision, states there are two types of supervisors in the UK:
…the Principal Supervisor who is the person responsible for the work carried out by everyone who is working under Supervision within a registered organisation including those who are working remotely, and the Individual Supervisor who is responsible for the work of those directly assigned to be supervised by them. Depending on the size and structure of the registered organisation, a person can be concurrently both a Principal and an Individual Supervisor.
3.92
Mr Mark Glazbrook, a RMA, was an advocate for a tiered level of registration with a period of supervised training.
3.93
GLOMO supported implementing:
…periods of supervised training/practice, along similar lines to those required for legal practice, in particular:
a period of supervised training as a pre-requisite for registration; and
a minimum period of supervised practice prior to operating as a principle immigration agent or as a sole trader.
3.94
The LCA noted that ‘supervised practice is an ordinary and accepted element of learning and development in professions such as the legal profession.’
3.95
The LCA posited that supervision would provide greater protection for consumers by:
…providing a structured setting in which an entry-level migration agent can acquire, develop and consolidate the knowledge, skills and experience thought necessary for future unrestricted work as a migration agent.
3.96
The LCA recommended:
That all entry-level migration agents be required to satisfactorily complete a period of supervised practice before being permitted to practise on their own account or as a principal of a migration agency.
3.97
The LCA provided a suggestion on how the period of supervision might work in practice:
The supervised practice could be at a legal or migration firm for a defined period. The supervision might be provided by a supervisor or mentor with at least 5 years of experience. The training supervisor or mentor should be required to complete a statutory declaration confirming the supervision and detailing evidence of completed work during the period of supervision (such as details of the types of visas worked on).
3.98
Ms Chan advised that there was a need for twelve months supervised practice and agreed with the view that supervised practice would provide greater consumer protection:
This should be encouraged so that a new graduate or lawyer can feel confident in providing migration advice and the practice and procedures which are involved in representing clients effectively and successfully.
3.99
At a public hearing, Ms Chan added that a tiered registration could be possible.
3.100
Ms Nicole Kirkwood, Manager at immigration firm Acacia Immigration, stated that the ‘ability to supervise new agents is going to be more difficult because we won't have enough experienced agents and lawyers to supervise them.’
3.101
Ms Kirkwood agreed that supervision was important advising that it could be possible if there were enough appropriate supervisory staff:
But I do agree that it's really important. If we could foster a sense of unity between the department, legal practitioners and migration agents to put the consumers first, it would allow for the supervision, because we would have sufficient staff to support that cause.
3.102
Associate Professor Mary Anne Kenny, Murdoch University, was of the view that supervised practice was not appropriate and identified some practical problems in establishing a requirement for RMAs to undertake supervised practice including:
limited experienced practitioners available to supervise RMAs (with the majority having less than 5 years’ experience); and
around 42 percent of RMAs operate as sole traders and 33 percent are legal practitioners making it challenging to obtain a supervisor for twelve months.
3.103
Associate Professor Kenny believed that the issue of who would be suitable to supervise practice should also be addressed recommending that a supervisor be ‘an individual who holds a Bachelor’s degree or an individual with an unrestricted practice certificate and more than one year of experience as an unrestricted practitioner.’
3.104
Associate Professor Kenny recommended that a ‘requirement that migration agents undertake supervised practice’ not be introduced.
3.105
Registered migration agent Mr John Mendoza echoed the concerns of Associate Professor Kenny and recommended against imposing mandatory supervision. Mr Mendoza raised concerns about the number of sole traders, stating that it ‘will be impractical for many new RMA’s to obtain employment with existing migration businesses for the purpose of supervised practice.’
3.106
Mr Mendoza noted that all new RMA’s have to complete a Practice Ready Program (30 hours of supervised training) in their first year to be eligible for repeat registration.
3.107
Dr Pun held the view that the current system was suitable and that establishing an internship requirement ‘is an unnecessary imposition that could create hardship for the new migration agent.’
Committee comment
3.108
There are numerous jobs that have a component of supervised practice across varied fields including medicine, law, construction, education, and social work to name a few.
3.109
The Committee notes that both the Hodges and Kendall reviews recommended implementing a year of supervised practice for newly qualified migration agents.
3.110
The United Kingdom and New Zealand migration agent systems all contain a requirement that an immigration advisor or consultant undergo a period of supervised practice prior to the being granted a certificate to practice unrestricted.
3.111
It is widely held that effective supervision practices can facilitate the professional development of the supervisee, build and consolidate knowledge, monitor and maintain ethical standards and responsibilities, gain support at a professional and personal level and enhance the overall development of the field and its practice.
3.112
The Committee has formed the view that all new migration agents be required to complete a period of supervised practice before being permitted to practise on their own.
3.113
Supervised practice will provide much needed support to new migration agents in navigating the extensive immigration system. More experienced migration agents have the added benefit of providing improved customer service to their clients.
3.114
The Committee recommends that all new migration agents be required to complete a period of supervised practice prior to being granted an unrestricted practice certificate.
Immigration advice
Unregistered immigration assistance
3.115
A substantial amount of submitters to this inquiry commented on unregistered individuals providing immigration assistance and migration agents sharing their registration along with their Migration Agent Registration Number (MARN).
3.116
FECCA and SCoA indicated that they were aware of instances of unregistered practice.
3.117
Fragomen Australia believed that individuals providing unregistered immigration assistance was ‘a significant problem which harms the reputation of the industry and public confidence.’
3.118
The MIA was of the view that the biggest threat to consumer protection for individuals seeking immigration advice was those operating illegally; unregistered agents.
3.119
The MIA indicated that their members had reported instances of unregistered practice in a number of industries such as ‘education agents, recruitment companies, travel agents, investment advisers, property developers, interpreters and translators, charity and community volunteers.’
3.120
Ms Chan echoed concerns that unregistered education, travel agents and companies were providing unregistered migration advice on visa applications. Ms Chan raised additional concerns about lawyers practicing migration law without having studied any migration components noting that as at June 2018 there were only 86 accredited migration specialists nationally.
3.121
The MIA believed that illegal activity was rampant in Australia and expressed a view that the authorities did little to pursue or prosecute illegal operators noting that their members have made complaints about the activities of unregistered advisors to the OMARA and the Department of Home Affairs and considered that little had been done to stop them practicing.
3.122
The Humanitarian Group suggested a number of reasons why individuals seek the assistance of unregistered advisors including:
a lack of funded migration assistance for vulnerable and disadvantaged proposers, sponsors and visa applicants;
removal of funding under the Immigration Advice and Application Assistance Scheme (IAAAS) for family reunion assistance; and
weak English language or literacy skills leading to seeking assistance to prepare a visa application and a lack of understanding in what they are signing.
Migration agents sharing their registration with unregistered individuals
3.123
The Chinese Australian Services Society Limited (CASS) alleged that unregistered agents used the registration of RMAs which made it difficult to report them.
3.124
The Humanitarian Group received reports from their clients alleging that unregistered agents used the registration of RMAs as a way of seeming legitimate.
3.125
The LCA and LIMES concurred with the CASS, FECCA, SCoA and the Humanitarian Group on reports that migration agents were sharing their registration with unregistered individuals. These organisations also raised concerns that MARNs were being used overseas to promote the credentials of the business intimating that they were supervised by a RMA in Australia and identified a possible trend of ‘unregistered agents operating in remote or regional areas in Australia and assisting visa applicants in applying for unmeritorious visas to remain in Australia.’
3.126
The CASS suggested adding a requirement that all migration agents display their license, qualifications and photo identification as a possible way to prevent fraudulent use of a migration agent’s registration.
3.127
The Department of Home Affairs acknowledged that there are instances of ‘unregistered migration agents providing unlawful immigration services in Australia’ but that data on the extent of the problems were hard to quantify:
…it is notoriously difficult to provide accurate evidence and quantifiable figures regarding the extent and effect. As noted earlier in the submission, this is due to the (often-complicit) nature of the witnesses.
Difficulty in reporting and investigating unregistered immigration assistance
3.128
Submitters pointed out a number of challenges in reporting, investigating and prosecuting instances of individuals providing unregistered immigration assistance.
Vulnerable victims
3.129
The CASS noted the difficulties clients from non-English speaking backgrounds had in making a complaint and suggested the OMARA ‘take a very proactive approach to promote its role and information to culturally and linguistically diverse (CALD) communities (who are the main clients of migration agents) and disseminate information in community languages.’
3.130
The ASRC concurred with the CASS’s view that individuals from non-English speaking backgrounds would find it hard to make a complaint due to access issues:
… the online complaint form provided by the Department is not presented in very accessible user-friendly language or format and this may contribute to victims’ reluctance or inability to make complaints. The entry point to the form is headed ‘Border Watch- report something suspicious’. The complainant then needs to select the tab titled ‘report suspicious immigration activity’ and provide details of the ‘offence’ allegedly committed from a long drop-down table of other offences. Notably, the form is also only available in English. These all present significant access issues, especially for vulnerable complainants.
3.131
The ASRC stated that some victims fear retaliatory actions from the unregistered advisor and that when complaints are made, the Department of Home Affairs’ complaint mechanism is ‘not very responsive and does not reliably follow through to investigate and act on the complaints received.’
3.132
The MIA pointed out that victims were extremely vulnerable and ‘disinclined to report their activities for fear it will damage any further migration options.’
3.133
The ASRC noted that the victims of unregistered advisors were afraid to complain because ‘a complaint could negatively impact on their visa application.’
3.134
The ASRC recommended:
transferring responsibility for receiving and investigating complaints against unregistered advisors to an independent body; and
the Department should be prevented from making adverse credibility findings against applicants in instances where the body makes a finding against an unregistered agent.
3.135
The ASRC posited that creating whistleblower protections for victims could encourage them to safely lodge complaints:
Vesting an independent body with the power to handle such complaints and ensuring that victims of nonregistered agents are not penalised in their visa applications for having made a complaint, would likely increase victims’ confidence to put forward their complaints and help to end the impunity enjoyed by many unscrupulous non-registered agents. Given the vulnerability of many victims, it may further embolden and encourage victims to lodge complaints if free assistance were made available to help them do so.
3.136
The Department of Home Affairs acknowledged that witnesses often don’t support the investigation and are deterred from testifying due to:
intimidation and threats from migration agents;
witnesses having their visa cancelled due to fraudulent information, potential immigration detention and/or removal from Australia as an unlawful non-citizen.
Overseas operators
3.137
Ms Chan raised concerns regarding immigration advisors operating overseas providing unregistered immigration assistance, particularly labour hire firms.
3.138
When comparing how other countries combat unregistered practice, the MIA noted that the ‘New Zealand Immigration Advisers Authority publishes outcomes and decisions related to sanction or prosecution of both licensed and unlicensed advice.’ The MIA added that both New Zealand and Canada could prosecute illegal provision of immigration advice and impose the following penalties:
New Zealand – Ability to prosecute unlicensed practice. Fines from $10,000 - $100,000 and/or imprisonment for 2 – 7 years;
Canada – Ability to prosecute illegal provision of immigration advice. penalties up to unlimited fine and/ or 2 year’s imprisonment.
3.139
Mr Iyer provided a similar recommendation to the MIA to no longer enable unregistered agents located overseas to submit a visa application. Mr Iyer and Mr Ian Bosley, a RMA, both highlighted that New Zealand and Canada have regulatory provisions in place that only permit registered agents to make applications on behalf of a client. Mr Iyer suggested establishing the same regulations in Australia.
3.140
The Migration Alliance pointed out that migration agent membership organisations had called ‘upon the Government to adopt a system similar to the New Zealand and Canadian authorities with respect to their dealings offshore with Migration Agents.’
3.141
Aust-China Migration Services advocated for greater monitoring of the online services gateway for visa applications, the ImmiAccount portal, and restricting access to individuals located overseas:
The Department has itself allowed this to occur with the open-access nature and ease of use of its Immi Account portal, the appropriate use of which could would be better monitored and perhaps restricted-for-use from offshore unless there is in Australia a natural person or entity, who or which is subject to Australian law and appropriated sanctions or restrictions.
Limited investigative powers and resources
3.142
Submitters put forward the view that the relevant authorities were limited in their ability to investigate and prosecute individuals that provided unregistered immigration assistance.
3.143
The MIA noted that the OMARA had no jurisdiction to investigate or prosecute unregistered practice.
3.144
FECCA and SCoA believed that the relevant authorities were ill resourced to investigate unlawful operators:
While there are avenues to report unlawful operators providing immigration assistance through the Department of Home Affairs, it is the experience of FECCA and SCoA that neither bodies are sufficiently resourced to adequately investigate, police or penalise unregistered migration agents.
3.145
FECCA and SCoA recommended allocating resources to investigate the volumes and patterns of unregistered migration agents providing unlawful immigration services in Australia.
3.146
Fragomen Australia called on the Department of Home Affairs to ‘take more action to identify and prosecute individuals who seek to provide immigration assistance without registration.’
3.147
The MIA made a number of recommendations aimed at combating unregistered practice including that:
the Department investigates complaint systems and approaches that encourage victims of unregistered practice and fraud to make complaints;
applications that are not lodged by registered migration agents be regularly audited by the Department of Home Affairs for evidence of unregistered migration practice;
the Department of Home Affairs more actively pursue and prosecute those who engage in unregistered and fraudulent immigration practice;
the Department of Home Affairs and the OMARA annually publish details of the number of complaints received about unregistered migration practice and the outcomes of investigations into these complaints;
the Department of Home Affairs no longer accepts migration applications unless lodged by registered migration agents, exempt persons or the individual applicant; and
the financial penalty for providing unregistered immigration assistance be increased to statutory penalty points equivalent to $100,000.
3.148
The LCA called for ‘stronger regulatory oversight by the OMARA of the management of migration agencies, and an enhanced program to detect and deter unregistered agents operating in regional and remote areas.’ LIMES proposed that RMAs have ‘joint liability for unlawful conducts of their associated businesses, or at least a duty to cooperate diligently on investigation of unlawful conducts of their associated businesses, whether as employees or directors, except that these businesses are exempted.’
3.149
At a public hearing, the ASRC stated its belief that it was a government responsibility to warn people away from ‘unscrupulous non-migration agents’ suggesting increased community education.
3.150
The ASRC commented that the current legislation already contained significant penalties for individuals convicted of providing unlawful immigration assistance but was of the view, however, that these powers were ineffective.
3.151
The Department of Home Affairs advised that they do not have the legislative power to appropriately investigate alleged instances of unregistered immigration assistance and identified some impediments to their investigative powers stating that a:
lack of appropriate information sharing and evidence sharing powers and
lack of appropriate search and seize warrant executing powers, in portfolio legislation, especially the Migration Act and the Australian Border Force Act 2015 (ABF Act),
are a significant impediment to Commonwealth investigation of fraudulent behaviour by migration agents (both registered and unregistered).
3.152
Prosecution of offences under the Migration Act requires significant resources to detect and investigate ‘due to the onus on a burden of proof.’
3.153
The Department of Home Affairs provided details in its submission on the current approach the Australian Border Force (ABF) uses in circumstances when it has identified an individual providing unregistered immigration assistance:
The ABF are able to use limited administrative actions to address identified unregistered immigration assistance. This includes issuing educational letters to entities suspected of providing unregistered immigration assistance and warning letters to entities where there is evidence they have provided unregistered immigration assistance.
3.154
The Department of Home Affairs added that ABF Officers may also, in limited circumstances, ‘issue infringement notices, cease communications with the person; and/or pursue civil penalty or criminal prosecution action.’
3.155
There are a number of criminal penalties in the Migration Act:
…relating to unregistered migration advice which attract penalties of up to 10 years imprisonment including:
s280 – giving immigration assistance if not registered;
s281 – charging fees for immigration assistance if not registered;
s282- charging fees for making immigration representations if not registered;
s283 – a person representing themselves as a registered agent if not registered; and
s284 – advertising the provision of immigration assistance if not registered.
3.156
The Department of Home Affairs noted that they had ‘struggled to get a custodial sentence’ in the last five years for the cases of providing unregistered immigration assistance that have gone before the courts. They elaborated that the courts were generally sentencing those individuals to a ‘good behaviour bond of three years.’
3.157
The Department of Home Affairs informed the Committee that there is a preferred option to disrupt unregistered migration agent activity in instances where evidence is challenging to acquire:
Where evidence of unregistered migration agent activity is difficult to obtain, and the offending is low-level, the preferred option is disruption through administrative action via the issuing of a warning or infringement notice under s280 of the Migration Act, and the cancellation of the fraudulent visa. This is a timely, efficient and effective response to minor non-compliance.
3.158
The Department of Home Affairs provided evidence of the small number of allegations that it received noting that it made it difficult to identify patterns of unregistered migration agents (Table 3.2).
Table 3.2: Allegations against migration agents
|
|
|
|
|
|
|
FY 2016/2017
|
52,455
|
351
|
442
|
0.84%
|
|
01/07/2017 to 31/03/2018
|
32,813
|
158
|
242
|
0.73%
|
Source: Department of Home Affairs, Submission 6, p. 22.
3.159
The ABF, in the 2017-18 financial year, ‘pursued three prosecutions in relation to unlawful providers of immigration assistance (unregistered Migration Agents).’
3.160
At a public hearing when asked how many unregistered migration agents have been prosecuted over the last twelve months, the ABF and Department of Home Affairs commented that they have information on individual cases of allegations, but no information on prosecutions, acknowledging that it was a ‘data gap’.
3.161
For the 2017-18 financial year the ABF allocated approximately $32 million towards the detection, deterrence, disruption, investigation and prosecution of numerous operational priorities including: counter terrorism; illicit tobacco; exploitation of foreign workers; narcotics; trade based money laundering; serious and systemic revenue evasion; and weapons of mass destruction.
3.162
In an attempt to discourage unregistered practice, the OMARA is developing a communications strategy ‘to go out to the community, to potential clients, to advise them to use a registered migration agent.’
Committee Comment
3.163
It is self-evident from the evidence that there is considerable concern in the community about the operation of unregistered operators providing unlawful immigration advice both within Australia and overseas.
3.164
It is particularly concerning to hear reports of registered migration agents sharing their registration details with unregistered advisors.
3.165
The Committee acknowledges that the relevant authorities face multiple challenges in detecting, deterring, disrupting, investigating and prosecuting unregistered practice, particularly overseas.
3.166
The Committee notes that the current arrangement of reporting unlawful practice against a registered migration agent to the OMARA, and reporting unregistered operators to the Department of Home Affairs, can be confusing as to which agency has jurisdiction.
3.167
It is particularly confusing for individuals from culturally and linguistically diverse backgrounds who wish to make a report against either a registered or unregistered agent.
3.168
The Committee is of the view that it would be beneficial for all complaints to be handled by a single statutory authority: the Immigration Assistance Complaints Commissioner. The Migration Act 1958 should be amended to establish a statutory authority which should be modelled on the Aged Care Complaints Commissioner.
3.169
The responsibilities of the Immigration Assistance Complaints Commissioner would include:
resolving complaints about immigration services;
detecting, deterring, disrupting, investigating and prosecuting unregistered practice;
imposing sanctions or fines and/or ordering the payment of costs, payment of refund or compensation;
publishing registered migration agent performance data;
educating people and immigration business and agents about the best ways to handle complaints and the issues they raise; and
providing information to the Minister in relation to any of the Complaints Commissioner’s functions, if requested.
3.170
The Committee recommends that the Australian Government amend the Migration Act 1958 to establish a statutory authority, the Immigration Assistance Complaints Commissioner with the following powers:
resolving complaints about immigration services;
detecting, deterring, disrupting, investigating and prosecuting unregistered practice;
imposing sanctions or fines and/or ordering the payment of costs, payment of refund or compensation;
publishing registered migration agent performance data;
educating people and immigration business and agents about the best ways to handle complaints and the issues they raise; and
providing information to the Minister in relation to any of the Complaints Commissioner’s functions, if requested.
Powers of the OMARA
3.171
Under the Migration Act 1958, the OMARA has the authority to:
monitor the conduct of registered migration agents;
investigate complaints and take appropriate disciplinary action against registered migration agents or former registered migration agents;
inform the appropriate prosecuting authorities about apparent offences;
caution a registered migration agent or suspend or cancel a registered migration agent’s registration;
bar a former registered migration agent from being a registered migration agent for a period of not more than 5 years.
3.172
The Committee received a range of evidence suggesting that the OMARA needed additional powers to prosecute unscrupulous agents.
3.173
The RCA, ASRC and the Humanitarian Group were all of the view that the OMARA’s powers to take appropriate enforcement action against unscrupulous registered or unregistered agents was limited.
3.174
The RCA believed that the powers to sanction or caution a migration agent were insufficient to deter unethical practices and noted that the OMARA had no powers to ‘deal directly with people purporting to be migration agents but who are not registered.’
3.175
The RCA called for an increase in the OMARA’s powers to ‘better deal with unscrupulous agents, including the power to recover funds from unethical practitioners’.
3.176
The ASRC held the view that the OMARA’s enforcement powers provided limited assistance to victims of unscrupulous agents which resulted in them being less likely to lodge a complaint:
In our experience many clients that have experienced such difficulties or been dissatisfied with their migration agents, are not motivated to lodge complaints with the Office of the Migration Agent Registration Authority. This is especially when they become aware that OMARA does not have power to order a migration agent to refund fees paid by a client or to order damages for the harm done or lost opportunity caused by the misconduct.
3.177
The ASRC noted that while the issuance of a caution, suspension or cancellation may help prevent misconduct, ‘they do not in any practical sense, address the harm already done to the victim.’
3.178
The ASRC recommended empowering the ‘OMARA to make and enforce orders for the refund of fees paid to migration agents where complaints against migration agents are sustained.’
3.179
The Humanitarian Group noted a number of concerns they had with the current powers including that:
the OMARA’s powers to reprimand an agent were not attractive to clients;
the OMARA had limited powers to enforce requests to change unscrupulous behaviour;
the OMARA has limited powers to restrict agents following re-registration;
the OMARA’s cancellation powers did little to protect consumers; and
the OMARA has no powers to deal with unregistered agents.
3.180
The Humanitarian Group recommended reviewing the powers of the OMARA ‘to sanction migration agents who engage in unethical behaviour, including the ability to compensate clients.’
3.181
The MIA identified a ‘lack of legal jurisdiction and regulatory power of the OMARA’ as significant barrier to ‘combating unregistered practice generally.’
3.182
Johannessen Legal & Migration commented that the OMARA had no ‘tangible power to take action.’
3.183
Ms Chan observed that the then Department of Immigration and Border Protection 2016-17 Annual Report provided statistics on the number of complaints and disciplinary decisions by the OMARA as evidence that ‘agents who are in breach of the Code of Conduct will be disciplined by the OMARA who has the power to impose heavy penalties on offending agents.’
3.184
The Department of Home Affairs highlighted that the OMARA’s powers are administrative only and where ‘potential fraud or other Migration Act offences are identified, these are referred to the Australian Border Force and any action taken is subject to their priorities.’
3.185
In their submission the Department of Home Affairs added that they currently did not have the powers to adequately investigate inappropriate activity, and that ‘legislative change would be required to provide the necessary powers to investigate and prosecute this activity’.
3.186
When responding to a query on what steps the Department of Home Affairs was taking to strengthen the framework in the Code of Conduct for RMAs, they responded that they were reviewing how the Code of Conduct could be made more effective:
We undertook a review of all the complaints that we have where a sanction activity has been undertaken in the past. We looked at how the code related to that sanction activity and whether there was capacity to make the code more effective. … We are looking to reorder and remove the repetition and also strengthen the areas where we see a lot of complaints. A complaint decision might run to about 80 pages because we have to dissect the present relevant area of the code in minute detail, whereas, if we had broader wording, we could address what is unethical practice by an agent within that decision.
3.187
The Department of Home Affairs highlighted that unregistered migration agents did not fall within the OMARA’s jurisdiction.
Assistance provided by the OMARA
3.188
Two submitters commented on the assistance provided to RMAs by the OMARA.
3.189
In her submission Ms Chan stated that despite paying a considerable registration fee, the OMARA provided little assistance to migration agents:
…apart from providing registration services, agents receive little benefit from OMARA after paying their substantial registration fees annually, which currently stands at $1595 for commercial agents. There is often no communication between the OMARA and the agent during the entire period of registration.
3.190
At a public hearing, Ms Chan acknowledged that the OMARA did provide occasional notices about changes in immigration policy but stated that any communication was very ad hoc.
3.191
Dr Pun believed that there was a perception that the OMARA did not provide value for money and suggested that they have a more educational role, particularly with CPD, holding seminars and disseminating information from the Department of Home Affairs.
Compensation
3.192
As noted above, some submitters perceived that the OMARA’s powers to reprimand an agent did little to help the victim seek recompense. A few submitters suggested establishing a compensation scheme for individuals who were unable to obtain a refund.
3.193
The RCA held the view that the OMARA ‘does not provide redress or compensation to the affected individual’ or force a migration agent to refund fees.
3.194
The RCA noted that while an individual ‘may be able to seek compensation through consumer protection law, this process often required legal assistance, which is not available freely or at a reduced cost.’
3.195
The Legal Services Commission of South Australia noted that other professional groups such as travel agents currently have industry based compensation schemes and recommended considering ‘compensation for potential migrants who have suffered financial loss due to the negligent or fraudulent behaviour of migration agents.’
3.196
FECCA and SCoA in their joint submission recommended providing additional resources to the OMARA to maintain a compensation fund for migrants who are left out of pocket as a result of unethical behaviour.
3.197
The ASRC, as evidenced above, commented on the OMARA’s lack of power to refund fees or order damages and agreed that it would be beneficial to create ‘an accessible mechanism for clients to seek compensation where it is found that the misconduct of migration agents have caused them harm.’
3.198
The MIA pointed out that the OMARA’s counterpart agency in New Zealand, the Immigration Advisors Authority, had the power to order a migration agent to ‘refund fees, costs, pay penalties and/or compensation.’
Table 3.3: Country comparison – sanction powers
|
|
|
|
|
|
|
Sanction Powers
|
May impose range of sanctions up to level of cancellation of registration and barring from practice
|
Sanctions up to level of revoking registration
|
Sanctions up to cancellation of license and orders to refund fees, costs, pay penalties and/or compensation
|
Sanctions up to immediate cancellation of license or company registration
|
Source: Migration Institute of Australia, Submission 15, p. 67.
3.199
The Department of Home Affairs did not directly refer to the issue of compensation either in their submission or appearance at a public hearing. They did however note that clients who are unhappy with their migration agent may ‘seek a refund through the consumer tribunal in their State.’
3.200
The Department of Home Affairs added that these ‘tribunals have the power to order an agent to make a refund should they determine that there were unnecessary services provided’ and that, ‘clients can approach the Magistrate's Court’ in States without tribunals.
Fees
3.201
The CASS noted the requirement for RMAs to provide ‘an agreement for services and fees according to the Code of Conduct for Registered Migration Agents’ (Code of Conduct).
3.202
The CASS suggested that clients from non-English speaking backgrounds could be open to exploitation as they ‘are not familiar with Australian laws and culture, to discern if the price is reasonable for the services provided.’
3.203
The CASS recommended establishing a legislated fee schedule:
…outlining acceptable price range corresponding to different kinds of migration assistance. Service fees across agents would then become more consistent, transparent and fair.
3.204
When commenting on service fees in their submission, the CASS observed that there appeared to be a lack of transparency on the appropriate handling of clients’ money and that they heard reports of:
clients being asked to make a payment in full before services are complete; and
instances of clients not being issued a receipt for service.
3.205
The CASS suggested that there should be ‘more regulations incorporated within the ethics of migration agents’ on the processing and handling on money.
3.206
FECCA and SCoA agreed that a lack of understanding by individuals from culturally and linguistically diverse (CALD) communities could lead to exploitation and are ‘misled into paying expensive fees up front, and are left out of pocket in the event that agents do not fulfil their obligations in an ethical or professional manner.’
3.207
The MIA’s submission identified the requirement set out in the Code of Conduct relating to fees and pointed out that the OMARA used to publish ‘fee information on its website, collected when agents are renewing their registration.’
3.208
The MIA observed that fee data collected by the OMARA between 1 March 2013 and 30 June 2017 showed little change in the average fees charged by RMAs, attributing this to:
…factors such as, the large number of new agents constantly entering the market and those leaving the profession due to low financial rewards, increased opportunity for applicants to lodge their own applications, and changes to visa programs that reduce the number of applicants for migration and businesses to sponsor overseas workers.
3.209
The MIA were of the view that publishing fee information was ‘a somewhat ‘blunt instrument’ as information collected refers to only a small proportion of the types of matters registered migration agents undertake and does not collect information on the level or complexity of matters.’
3.210
In their supplementary submission, the MIA did however recommend that the OMARA continue to publish RMA’s average fee schedules believing that they provided strong consumer protection and:
This schedule gives potential migration clients, a benchmark against which to measure quoted fees. A fee that is dramatically outside this range would serve to alert consumers to potential rorting or illegal activities.
3.211
The MIA recommended that the OMARA collect and publish refined average RMA fee data ‘in consultation with commercially practising registered migration agents to ensure the development of an efficient and effective schedule.’
3.212
The MIA and Migration Alliance held the view that there was no evidence of overcharging by RMAs.
3.213
CSU believed that the current fee-scheduling arrangements were adequate.
3.214
Ms Chan stated that RMAs charged fees within a wide range and called for an education campaign:
…to ensure people who believe paying a huge sum of money, which would appear to be outside the realms of what may be considered a reasonable fee to be paid, that they will have no advantage over those who have paid substantially less for migration advice.
3.215
The Department of Home Affairs in their submission pointed out that ‘the OMARA does not regulate the fees charged by RMAs’. They commented that fees were not regulated as they varied significantly based on:
the visa application type
the amount of time needed to prepare the application and the amount of supporting documentation required
the level of service needed based on the complexity of the case
the experience and qualifications of the agent.
3.216
The Department of Home Affairs highlighted that there was a requirement under regulation 3XA of the Migration Agents Regulations 1998 for RMAs to provide details on the average fees they charged clients to the OMARA. The regulation was repealed in April 2017 and the OMARA no longer collects fee information. They advised that alternate consumer protection would be implemented by the OMARA:
In order to support consumer protection, from 1 July 2018 when the current fee information becomes out of date, the OMARA will be replacing average fee information with advice to potential clients to ensure they are being charged fair prices by seeking three quotes for the services they require. Furthermore, in order to protect against ‘price creep’, they should ensure that the full services they require are set out in their signed service agreement with their RMA. Information will be provided on the OMARA website and communicated more broadly at that time to raise consumer awareness.
Committee comment
3.217
It is vitally important to ensure that consumers who avail themselves of the services of a migration agent are protected from exploitation and unscrupulous agents.
3.218
Individuals from culturally and linguistically diverse backgrounds are particularly vulnerable to being exploited and overcharged for the provision of immigration advice or services.
3.219
Evidence to this inquiry showed that some individuals were left substantially out of pocket after being exploited by either an unregistered or registered agent. The victims were left with very little affordable options through which to seek a refund or compensation and the relevant authorities have limited powers in which to take any action.
3.220
In order to improve consumer protection, the Committee has recommended establishing an Immigration Assistance Complaints Commissioner with the powers to order either an unregistered or registered agent to pay a fine, costs, refund or compensation to a client.
3.221
Another important mechanism to protect consumers and make sure that they know their rights and are not overpaying for a service is greater education.
3.222
Providing consumers’ information on the pricing arrangements of individual registered migration agents would improve transparency for the public, enable them to compare prices and make an educated choice.
3.223
The Committee therefore recommends that the Immigration Assistance Complaints Commissioner publish information on the pricing arrangements of migration agents.
3.224
It is important to consult with the migration agent industry in order to gain an appropriate determination on the average service fees charged by migration agents, taking into account the visa application type, preparation time, complexity of the case and qualification and experience of the migration agent.
3.225
The Committee recommends that the Immigration Assistance Complaints Commissioner, in consultation with practising registered migration agents, publish information on the pricing arrangements of migration agents.
Migration agents providing other services to clients
3.226
The MIA conducted a survey with its members to ascertain how many RMAs provided extra services to their clients. In that survey, 69 per cent of respondents indicated that they ‘provided extra services to their migration clients.’
3.227
MIA’s members were also asked how potential conflicts of interest are managed. Respondents ‘reported having formal processes for dealing with potential conflicts’, however ‘most referred to the relevant Code of Conduct to inform their practices.’
3.228
The MIA stated that they were not concerned about RMAs providing extra services providing that they are ‘appropriately licensed or registered to provide other services to their migration clients, that they will observe the appropriate protocol in accordance with the relevant Code.’
3.229
The MIA suggested strengthening professional standards to protect consumers, stating that this would:
…prevent registered migration agents without professional accreditation from providing other services to the same migration advice client. This strengthening of the standards would provide additional protection to migration advice consumers.
3.230
The LCA provided in-principle support to ‘migration agencies providing clients with services in addition to immigration assistance services, subject to appropriate consumer protection and integrity safeguards.’
3.231
The LCA did however, raise concerns that potential conflicts of interest could arise ‘where a migration agent is also an education agent or has a referral fee arrangement.’ The LCA proposed that RMAs provide written disclosure of any potential conflicts:
Our view is that these situations require written disclosure to the client of the arrangements, that clients have the ability to refuse the referral and that they be required to give informed consent before a migration agent can accept fees or commissions in relation to education assistance.
3.232
The LCA recommended that ‘migration agents should only be permitted to provide other services where there are strong and effective regulatory safeguards to protect the interest of the clients of the migration agent or agency.’
3.233
The Migration Alliance agreed that RMAs with appropriate skills and qualifications should be able to provide other services to clients providing that they had appropriate professional indemnity insurance and no conflict of interest.
3.234
Dr Pun held the view that migration agents were ‘already restricted to whatever advice they can give to a client and the OMARA has done a good job as a managing authority of migration agents.’
3.235
The LCA raised concerns about a RMA’s ability to engage in review proceedings such as the General Division of the Administrative Appeals Tribunal (AAT) without legal qualifications.
3.236
The LCA were not, however, concerned about RMAs assisting clients in the Migration and Refugee Division of the AAT:
Law Council does not hold the same level of concern with migration agents practising in the Migration and Refugee Division of the AAT as these proceedings do not typically possess the same level of legal intricacy, providing the necessary professional development training is in place to ensure migration agents understand the legislative process and procedures of the Migration and Refugee Division of the AAT and are not providing advice relating to judicial review.
3.237
Dr Pun put forward the view that an experienced RMA ‘should be able to handle review cases adjudicated by the AAT where it is still a merits review (or a non-adversarial system).’ He concurred that a legal practitioner should represent a client in an adversarial system such as a court.
3.238
Evidence was received which referred to section 276 of the Migration Act 1958 which defines immigration assistance as including:
preparing for proceedings before a court or review authority (the Administrative Appeals Tribunal (AAT) or the Immigration Assessment Authority) in relation to a visa application or cancellation review application; s 276 (1)(c); and
representing a visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the application. s 276 (2)(c).
3.239
The submitter commented that there were a number of issues with allowing a RMA to represent a visa applicant including:
RMAs are not trained in statutory interpretation; failure to provide submissions as per law and/or relevant documents at merits review dis-advantages the client; and legal services must be rendered with due care and skill, are reasonably fit for their purpose, and of a quality that the client might reasonably expect will achieve the result.
3.240
Mr Mendoza noted the provision in the Migration Act 1958 that enables RMAs to appear in court or before a review authority adding that:
RMAs are capable of learning the processes and procedures to appear before a review tribunal, in fact there are CPD units on appearing at the AAT. Further, the RMA is often best placed to appear for a client due to an established relationship with the client, a detailed understanding of the client file, a comprehensive understanding of the migration system through daily practice, and an insight into the cause of a decision that requires review by a tribunal.
3.241
NCA and AIA disagreed with the LCA’s characterisation that only legal practitioners should represent a client at the AAT. They added that RMAs were highly qualified, required to undertake CPD in migration law and ethics, and ‘have access to a Migration Law library and must have a thorough understanding of Migration Law and Practice as per the Migration Agents Code of Conduct.’
3.242
NCA and AIA did, however, propose a requirement that RMAs have a ‘minimum period of migration practice and knowledge to represent at AAT for both migration agents and legal practitioners.’
3.243
The Department of Home Affairs stated that the current economic market has led to RMAs seeking additional employment to supplement their income:
Other paid work that registered agents may engage in include travel agents and potentially, education agents.
3.244
The Department of Home Affairs added:
The issue of RMAs being able to provide other services is a consideration presently being undertaken in the OMARA’s work to strengthen the Code of Conduct.
Committee comment
3.245
Migration agents provide a number of additional services to their clients. Some have dual roles as migration agent, education agent, travel agent, or legal practitioner.
3.246
The overwhelming view of submissions to the inquiry is that most people who work as registered migration agents act honestly, ethically and morally.
3.247
The Committee’s primary concern is the practice of individuals providing unregistered immigration assistance.
3.248
The Committee has not received any direct evidence during this inquiry that would indicate that registered migration agents are acting unethically or unlawfully to provide other services to their clients.
3.249
The Committee does acknowledge concerns about potential conflicts of interest and that RMAs have the requisite skills and qualifications in order to effectively support their client before a review authority.
3.250
The Committee notes that while it may be beneficial for an individual to arrange for assistance when appearing before a review authority, it is incumbent on the consumer to ensure that the person that is representing them has the appropriate qualifications, experience and expertise.