Regulation of registered migration agents
Initial registration as a migration agent
2.1
The Migration Act 1958 requires that anyone providing immigration advice or assistance must be registered. Individuals, not businesses or incorporated entities, must first apply for registration with the Office of the Migration Agents Registration Authority (OMARA).
2.2
Individuals seeking to register as migration agents for the first time, or re-register because their previous registration lapsed after 12 months, must meet a number of requirements:
Technical proficiency through education:
Either hold an Australian legal practising certificate or
Hold a graduate diploma in (Australian) migration law and practice and pass a national Capstone assessment (offered by the College of Law Ltd)
English proficiency (IELTS 7 Academic or TOEFL result of 94)
Payment of registration fee – $1760 AUD ($160 for not-for-profit)
Must be assessed as a person of integrity and “fit and proper” – must undergo a National Police Check with the Australian Federal Police
Hold professional indemnity insurance
Have access to a suitable professional library
Hold Australian citizenship or be a permanent resident of Australia or a New Zealand citizen holding a special category visa
Not have had their registration application refused in the past 12 months
Not have had their registration cancelled in the past 5 years.
2.3
Once the OMARA has received the application, the applicant’s intention to apply for registration is published on the OMARA website for 30 days, during which time anyone can make a written objection to the registration.
2.4
Following this period, the OMARA assesses the application and associated documents, which include identity documents, evidence of relevant tertiary qualifications, an Australian Federal Police National Police Check, and English language proficiency results.
2.5
Additionally, the OMARA examines a number of systems within the Department of Home Affairs to establish whether the Department has any adverse information about the applicant.
2.6
According to its website, the OMARA usually takes around eight weeks to process an initial application for registration.
Annual re-registration as a migration agent
2.7
Agents are required to renew their registration annually and, as a condition of their registration, are required to:
pay $1595 registration fee ($105 for not-for-profit)
continue to be a person of integrity and ‘fit and proper’
hold professional indemnity insurance
have access to a suitable professional library and
complete [continued professional development] CPD.
Continued Professional Development
2.8
Migration agents must complete a number of professional development activities each year prior to annual re‑reregistration. These CPD arrangements commenced on 1 January 2018.
2.9
Within the first year of registration as a migration agent, agents who completed the Graduate Certificate in Australian Migration Law and Practice as their entry-level qualification into the profession are required to complete a Practice Ready Programme (PRP).
2.10
The OMARA describes the PRP as ‘a highly interactive program that will develop in participants the practical skills and knowledge needed to successfully operate as a registered migration agent.’ Activities in the PRP include:
the Occupational Competency Standards for Migration Agents which provide explicit statements about what people need to be able to do to practice successfully as professionals, and
the Code of Conduct obligations for agents and accepted ethical standards expected within the migration advice industry.
2.11
After the first year, migration agents are required to provide evidence of completion of a prescribed amount of CPD activities annually prior to re-registration. The activities fall into two categories (A and B) and are assigned points upon completion. Category A activities include:
participation in workshops on specific subject matter such as updates to visas or migration law, labour agreements, ethics and professional practice;
completing units in a course relating to Australian migration law at the Graduate Certificate, Graduate Diploma, Bachelor Honours Degree or Masters Degree level; and
completion of a Practice Ready Programme that includes 30 hours of tuition, a maximum of 30 participants per class, and includes assessment activities for all of the Occupational Competency Standards for Migration Agents.
2.12
Category B activities include participation in conferences, seminars, lectures, or undertaking a prescribed number of hours of private study (e-learning).
2.13
RMAs must complete ‘CPD activities worth a combined total of at least 10 points’. A minimum of five of these points must be Category A points.
2.14
The OMARA may grant an extension of three months in which to meet CPD requirements in exceptional circumstances.
2.15
In its submission, the Department noted that it would be reviewing CPD providers over the next two years:
As a part of developing a Compliance Strategy, plans are underway to review these arrangements progressively over the next two years by undertaking audits of the CPD providers’ operations. There will be data available on complaints and monitoring outcomes to measure the impact of this measure from the beginning of 2020.
Role of the OMARA
2.16
The role of the OMARA is to protect consumers of migration assistance and the integrity of the Australian visa system through regulating registered migration agents (RMAs). Migration agents in Australia must be registered with the OMARA in order to provide migration advice and assistance.
2.17
The OMARA works within the functions set out in section 316 of the Migration Act 1958. The functions of the OMARA are to:
deal with registration applications in accordance with this Part;
monitor the conduct of registered migration agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance;
investigate complaints in relation to the provision of immigration assistance by registered migration agents;
take appropriate disciplinary action against registered migration agents or former registered migration agents;
investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action;
inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and
monitor the adequacy of any Code of Conduct.
2.18
Key objectives of the OMARA are to ensure that:
clients needing migration services understand their rights;
registered migration agents understand their obligations;
only suitable people are registered as agents and that unsuitable people are refused registration or re-registration;
agents maintain the knowledge and skills needed to provide accurate and timely advice to their clients;
agents are monitored for integrity of conduct and quality of immigration assistance; and
clients of registered or formerly registered agents have an effective way to complain.
Complaints about migration agents
2.19
Complaints about RMAs can be lodged via an online form found on the OMARA website.
2.20
Once a complaint has been submitted, it is allocated to a case officer to investigate and determine if the Code of Conduct has been breached by the migration agent. If a breach has been found, the case officer then determines what action will be required. The OMARA stated that it takes considerable time to investigate and finalise many complaints due to their complexity and the ‘majority of complaints are finalised within six to 12 months.’
2.21
RMA allegations of misconduct from departmental officers are referred to the OMARA via the Department’s Border Watch Allegations and Referral Team (BWART). Additionally, consumer complaints and community allegations about registered or unregistered practice are lodged through the Department of Home Affairs website. BWART then record and refer the allegations to the appropriate areas of the Department for investigation. If an RMA is involved, it will be referred to the OMARA for administrative investigation.
2.22
Disciplinary decisions are made pursuant to section 303 of the Migration Act. The decisions that a case officer can take are:
cancel or suspend registration; or
bar RMAs from applying for registration.
2.23
Disciplinary decisions based on misconduct can be made when the case officer is satisfied that the RMA:
is a person not of integrity or is otherwise not a fit and proper person to give immigration assistance; or
the RMA has not complied with the Code of Conduct.
2.24
Current review mechanisms for migration agents provide for reviews of any OMARA sanction decision by the Administrative Appeals Tribunal (AAT). However, the Department of Home Affairs noted that only one decision has been overturned by the AAT in recent years.
Migration agent statistics
Work of registered migration agents
2.25
At a public hearing, the Department of Home Affairs noted that RMAs provide assistance in lodging just over ten per cent of approximately 3.4 million visa applications. Between 1 January and 30 June 2018 alone, out of nearly two million total applications, approximately 184,000 applications were lodged with the assistance of RMAs. This assistance was largely sought by those applying for visa classes with greater technical requirements.
2.26
The visa classes which required the most assistance in lodging an application were employer sponsored, 457 temporary work (skilled), Temporary Skill Shortage, Business skills, and family.
2.27
The Department of Home Affairs publishes a Migration Agent Activity Report approximately every six months on the provision of immigration assistance in Australia.
2.28
The 1 January to 30 June 2018 half-yearly report identified that there were a total of 7,402 registered migration agents in Australia at 30 June 2018.
2.29
Over the last three years the migration advice profession has grown considerably. From 30 June 2015 to 30 June 2018 the number of RMAs has grown from 5,706 to 7,402.
2.30
The amount of time a RMA spends in the profession is varied, and is set out in Table 2.1.
Table 2.1: Experience of registered migration agents at 30 June 2018
|
|
|
|
|
<1
|
1713
|
23%
|
|
1-3
|
2280
|
31%
|
|
4-6
|
958
|
13%
|
|
7-9
|
904
|
12%
|
|
>10
|
1547
|
21%
|
|
Total
|
7402
|
100%
|
Source: Department of Home Affairs, Annual Report 2017-18, Appendix F, p. 240.
Competency and knowledge of migration agents
2.31
As noted above, individuals wishing to become migration agents need to meet a number of requirements in order to obtain registration including holding an Australian legal practising certificate or a graduate diploma in (Australian) migration law and practice.
2.32
The migration advice profession is comprised of RMAs who have differing qualifications as well as experience working within the industry. The Department, in its submission, provided some information on the current educational qualifications of RMAs and reported that of a total of 7,383:
3,554 non-lawyer agents had completed a Graduate Certificate in Migration Law and Practice;
2,538 obtained an Australian legal practicing certificate; and
1,291 completed either a Migration Agents Registration Authority approved course, the Migration Advice Professional Knowledge Entrance Examination or the Migration Institute of Australia exam.
2.33
With the passage of the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017, legal practitioners will no longer be regulated by the OMARA. The Migration Agent Activity Report for January to June 2018 highlighted that 30 per cent of all RMAs have a legal practising certificate, and as such it is anticipated that around 4,800 lawyers with unrestricted certificates will be removed from the OMARA’s regulation.
2.34
The Department in its submission commented on the introduction of higher level qualifications for registration as an RMA:
The result of the introduction of the new higher level entry arrangements is that there will continue to be a hybrid of entry qualifications in the migration advice sector.
2.35
According to the Migration Agent Activity Report for January to June 2018, the vast majority of RMAs (93 per cent) operate on a commercial basis. Further, 40 per cent report operating as a sole trader.
Registration refusals and withdrawals
2.36
As the regulatory authority for RMAs, the OMARA publishes an activity report on migration agents every six months. These reports provide information on the number of prospective migration agents who withdrew their registration applications; the number of RMAs who withdraw their application to re-register; and the number of applications refused by the OMARA.
2.37
During the period between 1 July 2017 and 30 June 2018, 41 applicants withdrew their application seeking initial registration (31 applications) or re-registration (10 applications) with the OMARA.
2.38
The OMARA refused seven registration applications during that period comprising three initial applications and four repeat applications. Of those seven applications that were refused:
two applicants were refused based on fit and proper considerations;
one applicant did not meet the qualification requirements;
three repeat registration applications were refused because the agents had been sanctioned; and
one agent failed to complete the CPD requirements for repeat registration.
2.39
The Department of Home Affairs reports that there has been no significant variation in the number of registration refusals and withdrawals data from the last three years.
2.40
Agents are removed from the register by the OMARA either by request or because their registration has lapsed. During the 2017-18 financial year, 42 RMAs requested that their registration be removed and 794 registrations lapsed. By comparison, during the 2016-17 financial year, 25 agents requested removal of their registration and 593 registrations lapsed. The OMARA noted that ‘some agents will have since reapplied for registration’, however no figures on reapplications were provided.
Complaint outcomes
2.41
The Department of Home Affairs notes that approximately 75 per cent of RMAs have never had a complaint made against them. The OMARA, in its Migration Agent Activity Reports, provides some information on the complaints received by the OMARA, investigated and finalised, as well as the enforcement action taken in cases where an agent was found to have breached the Code of Conduct.
2.42
The OMARA finalised 727 complaints during the last financial year (1 July 2017 and 30 June 2018). Of the complaints which were finalised the OMARA reported that:
a breach of the Code of conduct for RMAs was found in 99 cases but those breaches were considered insufficient to warrant a sanction (complaints may have been resolved by ‘negotiation or issuing of a corrective action recommendation or a warning letter to the agent’);
no breach was found in 74 cases but the agent may have been issued a corrective action recommendation;
507 complaints were dismissed because the OMARA either had no jurisdiction, there was insufficient evidence and the complaint was withdrawn or the complainant did not provide consent for the complaint to be provided to the agent; and
47 resulted in a sanction decision.
2.43
The OMARA stated that a ‘number of matters that did not proceed to sanction and were subsequently resolved through informal negotiation, issuing of a corrective action recommendation or a warning letter to the agent.’
Sanction decisions
2.44
As noted above, the OMARA took disciplinary action as a result of 47 complaints where an agent was found to have breached the Code of Conduct between 1 July 2017 and 30 June 2018.
2.45
Twenty four agents were sanctioned as a result of those complaints. Sanction decisions made against the twenty-four agents by the OMARA included:
cautioning one agent for six months;
suspending the registration of eight agents for periods between three and twelve months;
cancelling the registration of seven agents for a period of five years; and
barring eight agents from registering again for a period between two and five years.
2.46
In the previous financial year, between 1 July 2016 and 30 June 2017, the OMARA took disciplinary action against 16 agents as a result of 40 complaints. Sanction decisions ‘resulted in seven agents having their registration suspended, eight having their registration cancelled and one agent being barred from registering again as a migration agent for a period of five years.’
2.47
A detailed list of sanction outcomes made by the OMARA during the period 1 July 2017 to 30 June 2018 can be found in the Migration Agent Activity Reports.