(1)   In respect of the obligations of Migration Agents to inform their clients of the probability of a successful outcome with their case, can the Minister explain the responsibilities of the Migration Agents under the Migration Agents Code of Conduct in relation to unsubstantiated or unjustified prospects of success when advising clients.

(2)   For the financial year 2003-2004, (a) how many requests did the Minister receive to exercise her Ministerial discretion, and (b) how many of these requests were lodged by each Migration Agent.

(3)   Are procedures in place in respect of cases where Migration Agents lodge multiple requests for intervention in the same case; if so, what are they.

(4)   What is the penalty for Migration Agents who have misled clients about the prospects of the success of their case and what recourse is available to the client in such cases.

(5)   Are Migration Agents required to be frank about prospects of success when they assess a client’s request for assistance in preparing a case.

(6)   Have sections of the Migration Agents Code of Conduct been revised since 1998; if so, what are the details.

(7)   Is the Government considering toughening the Migration Agents Code of Conduct; if so, what issues have been considered.

(1)   The Migration Agents Code of Conduct imposes a responsibility on registered migration agents to be frank and candid about the prospects of success when asked by a client about the probability of a successful outcome for the client’s application. They must not hold out unsubstantiated or unjustified prospects of success when advising clients on applications under the Migration Act or Migration Regulations. Registered migration agents must also not encourage the lodgement of any application that is vexatious or grossly unfounded (for example, an application that has no prospect of success) and must advise the client of their opinion that the application would be vexatious or grossly unfounded. Further, if the client still wishes the registered migration agent to lodge the application, the agent must obtain written acknowledgement from the client that s/he has been advised of the agent’s opinion that the application is vexatious or grossly unfounded.

(2) (a)   For the financial year 2003-04, some 5,400 requests were received asking for Ministerial discretion to consider the exercise of public interest powers under ss345, 351, 391, 417, 454 or 501J of the Migration Act 1958. (b) Departmental systems do not, at this stage, capture this information in a form that can be reported.

(3)   Guidelines are in place for departmental officers in respect of cases where multiple requests for intervention are made in the same case. These are contained in section 6.5 of Migration Series Instruction 387 - “Minister’s Public Interest Powers”. A copy of that section is attached for information. The guidelines do not distinguish between requests lodged by Migration Agents and requests lodged by other persons, including persons requesting intervention on their own behalf. The guidelines have been made publicly available. They indicate that repeat requests for intervention should not be brought to the Minister’s attention unless the request contains additional information that potentially brings the case within the ambit of the Guidelines. Extract from Migration Series Instruction 387 - “Minister’s Public Interest Powers”:

6.5 Repeat requests
6.5.1	The Act does not impose limitations as to time and number of requests.
6.5.2	Repeat requests for the Minister to exercise his public interest powers are those that are received after the Minister has previously had the case brought to his attention under the same public interest power (in either the submission or schedule format):
	- where the Minister has decided not to consider the exercise of his power in the case; or
	- the Minister has considered the case and has decided not to exercise his power.
6.5.3	If the Minister can exercise his power under more than one public interest power, then a request under one public interest power will not make a request for the other public interest power a repeat request. For example, a subsequent request under s 351, after a request under s 417 has been considered by the Minister will be considered a ‘first time request’ but will be processed with priority if there is no new information that brings the case within the Guidelines.
6.5.4	PARMS [Parliamentary and Ministerial Services Section] coordinates the initial receipt of repeat requests for redirection to the relevant MIU [Ministerial Intervention Support Unit] along with the acknowledgment replies for letters of support.
6.5.5	Repeat requests do not receive an interim reply as they are given priority processing.
6.5.6	The Minister has directed that repeat requests should not be brought to his attention unless they contain additional information that potentially brings the case within the ambit of the Guidelines.
6.5.7	If, on assessment of the repeat request, additional information is provided and the case now appears to fall within the Guidelines a submission is to be prepared.
6.5.8	In some cases it may be appropriate to expedite the Minister’s personal consideration. This could be done by sending via facsimile a summary of the facts of the case to the Minister’s office (see section 8).
	The fax is then followed by either a Submission or a Schedule to the Minister.
6.5.9	The submissions should always make it clear that the case has previously been brought to the Minister’s attention and should identify the changes in the information that suggest that the case may now fall within the ambit of the Guidelines.
6.5.10	If the relevant person is engaged in litigation, the Minister considers this case ‘inappropriate to consider’ and the person should be advised accordingly and may submit another request once the litigation is concluded.
6.5.11	If, on assessment of the repeat request, it is found that no additional information is provided and that the case remains outside the ambit of the Guidelines, a file note should be made to that effect and a Departmental reply sent from the MIU to the person making the request. This reply should be signed by Departmental Staff. This procedure applies irrespective of whether or not the person is involved in litigation.
6.5.12	The Minister will reply to requests from his constituents and Members of Parliament. The Minister’s reply does not delay finalisation of the repeat requests.
6.5.13	If the person has no other basis for remaining lawfully in Australia, Border Control and Compliance Division is then notified by the MIU of the need to consider the person for removal action.

(4)   Clients who have been misled about the prospects of success with an application can lodge a complaint with the Migration Agents Registration Authority (MARA). The MARA investigates all complaints and has the power to impose an administrative sanction upon any agent who has breached the Migration Agents Code of Conduct. The sanctions imposed by the MARA on registered migration agents depend on the nature and severity of the breach and involve either a caution, a suspension of registration or cancellation of registration.         The MARA may refer a registered migration agent (or a person who was a registered migration agent) and a complainant to mediation in an effort to resolve a client’s complaint. In addition to approaching the MARA, clients may be able to seek redress through state/territory consumer protection bodies and through civil action in the Courts. The Minister also has the power to refer a migration agent to the MARA if the agent has a high visa refusal rate in relation to a visa of a particular class. If the Minister refers an agent, the MARA must consider whether to sanction the agent.

(5)   Yes.

(6)   Yes. Numerous sections of the Code have been revised since 1998: 1 July 1999

An agent must not represent that he or she can procure a particular decision for a client under the Migration Act or Migration Regulations; and

If an application is vexatious or grossly unfounded (for example with no hope of success),

- the agent must not encourage the client to lodge the application; and

- the agent must inform the client of his/her opinion that the application is vexatious or grossly unfounded; and

- if the client still wishes to lodge the application the agent must obtain written acknowledgement from the client that the client has been advised of the agent’s opinion.

   1 March 2003

Agents are required to provide their clients with a booklet entitled “Information on the Regulation of the Migration Advice Profession” and make a record that the copy has been provided;

Clarification of situations in which a migration agent must not accept a person as a client due to the possibility of a conflict of interest arising and provide guidance to agents about their responsibilities if they become aware that such a conflict exists, following acceptance of a client;.

Clarification that agents are required to keep separate operating and client accounts with a financial institution; and

Agents able to satisfy the Code of Conduct requirement that they maintain a professional library, if their employer provides the requisite materials.

   1 July 2004

Ensuring that the provisions of the Code of Conduct are consistent with the new vexatious activity sanction scheme; and

Various technical amendments were also made to the Schedule 2 of the Migration Agents Regulations 1998 (ie the Code of Conduct) for 1 July 2004.

(7)   Yes. The Government is considering amendments to the Migration Agents Regulations that would further tighten the Code of Conduct. Issues currently under consideration include: -       specifying a minimum period that agents are required to keep client records. -       expanding provisions about advertising in the Code to require basic information be included in Internet and other advertising. -       including reference to the Criminal Code. -       specifying what a professional library should contain. -       tightening an agent’s obligations to their clients when the agent leaves their current employer.