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Joint Standing Committee on Migration
23/07/2018
Efficacy of current regulation of Australian migration agents

HINZ, Mr Anthony (Tony), Principal, Aust-China Migration Services

KIRKWOOD, Ms Nicole, Manager, Melbourne, Acacia Immigration

TAFT, Ms Esther, Senior Immigration Consultant, Newland Chase Australia Pty Ltd

WALL, Mr Michael, Managing Director (Australia), Newland Chase Australia Pty Ltd

WILSON, Ms Jane, Private capacity

[14:30]

CHAIR: Welcome. Is there anything you wish to add about the capacity in which you appear today?

Ms Kirkwood : Acacia is are part of the CIBT Group.

Mr Hinz : I'm a registered migration agent and I've been practising for about 18 years in the industry. I'm an immigration lawyer and a principal of my own business.

Ms Wilson : I'm also a migration agent with my own business, All Immigration Services.

CHAIR: Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament. The evidence given that would be recorded by Hansard attracts parliamentary privilege. I now invite you to make a brief statement before we proceed to discussion.

Ms Kirkwood : We thank the Joint Standing Committee on Migration for the opportunity to be part of the discussion in relation to this inquiry. As registered migration agents and members of the MIA, we are pleased with the MIA submission made on behalf of its members and support many of its recommendations. Originally we did not intend to put forward a submission of our own; however, following the publication of the submission by the Law Council, we felt compelled to address some of the recommendations proposed. In our view, a number of the proposals did not appropriately represent the professionalism of RMAs or the overall expertise, care and concern with which we represent our clients. Our submission focuses on two major areas: RMAs' ability to represent our clients at AAT and RMAs ability to advise on and manage citizenship applications.

On the first point, we acknowledge that the Law Council has since advised that they erred in their submission and now confirm that they do in fact support RMAs' continued representation of clients at the migration and refugee division of the AAT. We agree RMAs with intimate case and legal knowledge are well equipped to handle cases at the AAT and should be afforded the opportunity to act on behalf of our clients. We submit that consumers are best protected when they are well represented and understand what is involved in each step of the process. Most RMAs have at least an undergraduate degree and also a postgraduate certificate in migration law and practice. We are also required to undertake continued professional development annually. We have a specific skill set and a level of expertise that allows us and our peers to interpret and explain complex legislation to our clients in a way that is both clear and concise. RMAs are well equipped to represent clients from advice through to the review process if required.

We acknowledge that appearing before the AAT may be more complex and specialised in some other areas of migration law and support the introduction of a threshold requirement for both RMAs and legal practitioners before representing clients at AAT—for example, at least five years work experience or an examination in migration law to ensure all clients are adequately and appropriately advised and represented at review.

The second area of our submission concerned the expertise of RMAs to advise on, prepare and lodge citizenship applications. The Law Council has confirmed concerned that citizenship laws are outside the scope of the Migration Act and it is inappropriate for RMAs to advise clients on citizenship issues. However, we submit that, due to the inter-relationship between migration and citizenship laws, it is vital that we continue to practise in these areas. As part of the entry-level requirements to the profession, RMAs are required to undertake study of the Migration Act and the Citizenship Act. We have access to, and an understanding of and citizenship legislation, ministerial directions and case law. Advising on citizenship matters is within the scope of our daily practice. It is not uncommon for consumers to come to RMAs with Australian citizenship as their ultimate goal. Many do not understand the need to gain permanent residence first and the numerous steps that are required to get them to that point. RMAs are often required to guard their clients through various visas and assist clients for many years.

Recommendations in the Law Council submission that RMAs may be unfamiliar with visa cease dates, character issues and ministerial directions and therefore should not represent clients for citizenship are not supported in evidence. As experienced professionals in a complex field of law, we submit that there are areas of migration citizenship law that are interrelated and it would and it would not be possible to adequately advise clients on migration without also being able to advise them on citizenship law if required.

Character concerns can be a barrier to visa eligibility and to citizenship. Often character issues are encountered early in the assessment of visa eligibility. As such, it is vital that RMAs be able to continue to provide advice and representation from visa to citizenship to afford consumers appropriate and adequate case management that is holistic in nature and meets the client's needs and desires and the expectations of the Australian public. We in the migration industry are passionate about this and seek to ensure the longevity of our profession into the future. We genuinely care about our clients and positive outcomes for them and their families. We support the provision of the highest level of professionalism and advice to consumers to foster the growth and diversity in the Australian community. We thank you for the opportunity to participate in this inquiry and we look forward to hearing the outcomes and recommendations put forward by the committee.

CHAIR: Thank you. Are there any other statements, or do you speak for everyone?

Ms Kirkwood : I speak for Acacia Immigration and Newland Chase.

CHAIR: Very good. I just had a quick chat to the deputy chair and assume Mr Neumann will be of the same view that we haven't got any intentions at all to stop the RMA from appearing on behalf of clients before the Administrative Appeals Tribunal, so we can assure you of that.

As you may have heard today, when it comes to offshore agents giving advice, we've had a number of people give different recommendations, including falling under OMARA when it comes to understanding education agents. It doesn't fall under your area, but it seems that the education agents are giving immigration advice. What is your view of falling under OMARA or some other body, especially when trying to deal with people losing money overseas by unregistered education or immigration agents?

Mr Hinz : I think the issue of how you deal with people who are off grid is really problematic. It's one thing to regulate and impose sanctions and restrictions on people you can see, but, when they're overseas, it's a whole other issue. I think you've got to go back some time to the department. I think it really goes back to the drive to make Australia a destination for overseas students and to really create an education economy. The department, with a lot of other stakeholders, has been enormously successful, and Australia has earned billions of export dollars. The downside of that is that we do have a hangover of all sorts of issues. With the scope of this inquiry, it's not an appropriate forum to talk about that today.

I remember sitting down when I was not too far into my career as a migration agent. I was talking to some good people at the MIA. This was an issue back then: the fact that pretty well anybody overseas could call themselves an education consultant and they were able to, with relative lack of scrutiny, it seemed to me, register with the department. The department didn't seem to be too fussy about who it let into the system and, as a result of that, you've got possibly thousands of overseas companies, groups and affiliates who have access to what's now ImmiAccount. It was the overseas portal back then for fast-tracking student visas. The department, I believe, has been made aware of issues, rogue agents overseas. OMARA has been aware for a long time, but doing something about it is really a problem. There are issues of extraterritoriality. Australian law only operates so far. You could possibly shut down or sanction some of these people if you can get to their Australian connections and their affiliates, because a lot of these overseas agents are basically beachheads for recruitment for colleges and education agents in Australia. So, if you want to go through the network and do your intelligence work, you'd probably get some good information about who should be persuaded not to send students or do migration work overseas.

CHAIR: Are there any other suggestions? That's obviously offshore.

Ms VAMVAKINOU: The colleges—just shed some light. It appears, from a lot of evidence, that colleges are aware or are potentially colluding with some of this behaviour. We've received evidence today and written submissions to the committee from a large number of students in South America—Colombia in particular—who seem to all have a similar experience: someone operating here, onshore, not offshore, having managed to somehow keep thousands of dollars of money and not pay colleges and health insurance. Are you familiar with that? It's now becoming a bigger problem as we look at it. It appears to be a major issue—I don't think it's just in the South American community—to the point where: who ultimately has responsibility? The colleges are the final destination of the student application, aren't they? Where does the buck stop? How do you actually go through the process of cutting out rogue operators, either onshore or offshore? And what kinds of measures can be put in place? Do we register these agents? There were suggestions this morning about more information—even a manual advising prospective students to Australia on what to expect, what not to do or what to avoid. That might be a good way of at least sounding the bell and alerting people to this kind of activity. It doesn't sounds like a one-off; it sounds like a systemic problem. And, yes, our education system is really important to us and it yields us billions of dollars, but it also yields a lot of money to rogue operators, and eventually we could become a country that's not reliable or cannot be trusted. The experiences could be so bad for a lot of students that it actually affects the so-called lucrative nature of our international education system.

Ms Wilson : Perhaps it comes down to a communication issue with the department. That's probably where we could focus some positive construction as to whom they're dealing with. There seems to have been, in the 20 or so years that I've been practising, a move away from communicating directly with agents to encouraging people to lodge their own applications. I notice Tony said something in his written submission and I have had a client report to me as well that someone has just pretended to be them and created an immi account with an email address. We've got so much technology, and the department's asking for a lot of money to create another new system for communicating. At least we should have perhaps individuals plus agents being included in the communication with the department—it's simply a matter of adding another email address. Agents are not going to be bothered that their client gets the correspondence as well. That would keep them in the loop as to what's really happening with their applications. And also, perhaps there should be not special treatment but recognition that if they work with people who are here physically in Australia the department can then take advantage of that level of not only firsthand scrutiny in preparing the applications and making sure they are decision-ready but somehow in the communication process have both parties being aware of what's going on. We should make it evident to people considering lodging an application that there is value in having a migration agent or a lawyer do the work for them, be involved in the process because they will actually get some communication with the department.

Ms VAMVAKINOU: I understand that, in New Zealand, they don't accept applications unless there is a registration.But if we're to accept that there is a role for education agents then the idea that this activity, whatever it is, is not registered anywhere is problematic. The MIA, in Sydney last week, had its own views about how problematic it is. It seems to me that we haven't looked at it in any serious way. There's an operation going on here that doesn't absolve the colleges themselves, who are the recipients of this activity. So, yes, it cuts across two portfolio areas—education and immigration—but they are linked in a way because you can't get here without an immigration visa. So how do we find a way? I think Shayne was asking this previously: what can we do to fix this or to begin the process of trying to fix this? Because it appears to be a systemic problem.

Mr Wall : I cannot comment specifically on the education agents because I am not familiar enough with that—I know what they are but haven't studied them enough. But basically I think that, for anyone acting on behalf of the individual, you would assume there'd be some type registration requirement or a requirement which enables them to be monitored so I would be supportive of something similar. I guess my main point around the unregistered agencies is make sure are be under a particular law and are able to be sanctioned and monitored.

Ms Kirkwood : I feel like I'm somewhat uniquely placed to make a comment on this. I've gone out to about five different tertiary education bodies in the last year and spoken to, in the vicinity of, 2,000 students and had one-on-one consultations with about 400 of them on site at some of these bigger universities. Many of them don't know there's any other way to get into university other than via an education agent. And when some vulnerable students come to me and they've sought advice on their courses—I'm not placed to do that—I've actually referred them back to the university themselves because within some of the universities they have departments that deal with incoming students. So I feel that the responsibility of that could go back to that department and that department could then on-refer registered migration agents to those students who are interested in their migration pathways. Not only do some students come here with the end goal of PR, but many of them don't. Many of them come here with the goal of getting a good education. But then, once they're here, why wouldn't they love it here? Their goal changes.

Ms VAMVAKINOU: I don't think there's anything wrong with wanting to stay in Australia. I don't think that's the issue. I think it's the people operating on behalf of the college that need scrutiny.

Ms Kirkwood : Yes. I think that it needs to go back to the colleges themselves. Everybody's entitled to their livelihood, but sever that link between a commission and a course, because that's part of the big issue. When I'm speaking to students, I say to them, 'If you go to an education agent and what they recommend is in line with your values and your end goals, by all means use the education agent, but, if they're sending you in a different direction from what you originally planned, maybe ask them why they're suggesting that.' So I think that, if it went back to the school and they somehow regulated that and they were forced to use a registered migration agent, it would stop that advice.

Mr Hinz : There are lots of threads and lots of different aspects to this whole issue. I remember that, when I started out, my firm was actually a recruitment agent for Swinburne University for a short period of time. They used the word 'recruitment' because what they wanted you to do was obviously to indirectly market for the provider. That involved giving information about courses and degrees. Where the migration agents came in was obviously to assist on the visa side: 'Are you qualified? Do you meet the requirements? Can you articulate from your current course? Where will you be able to move once you get here in terms of bachelor or higher degree?' It was that sort of thing. But what I noticed over time—certainly with Swinburne and possibly with other providers—was that they were very much focused on the big numbers and the throughput. We used to get someone coming to the office asking us if we could get more students through to effectively meet a quota.

Ultimately we dropped off the panel because we weren't recruiting enough students, and we noticed that Swinburne was actually going into China, Malaysia and other countries. They actually had their own staff, their own people, so they were being sort of proactive, getting ahead of the game and effectively taking the work directly out of those countries. I think that's a fairly common pattern with the larger providers. The smaller education providers and the private providers seem to operate through a network of agents both overseas and in Australia. If you look at any one of the cooperative referral agreements, there are all sorts of obligations on the Australian agent here to act ethically and responsibly and abide by codes of conduct. Potentially you can be removed from the list if you're found not to be doing the right thing. How often that actually happens would be interesting to find out. I'm sure there might be a way under FOI to get stats on people who have been removed from providers lists because of various things. Occasionally you see something in the media to that effect, but it's pretty rare.

So the whole issue of how you protect visa applicants as consumers is very vexed. I agree with what Jane said earlier. I think education is really important. I don't know about a lot of the overseas websites of the department, but I wouldn't have thought it would be too hard, on the page that deals with overseas students, to give some basic information about the desirability of using an organisation that's reputable. Obviously the department can't make recommendations, but it could say something like, 'Organisations which are registered or are subject to Australia law can offer the student a degree of protection'—very basic stuff like that.

The other point, which goes back to what Jane said before about communication, is that the whole relationship between the department and the migration profession, particularly migration agents, has unfortunately been somewhat antagonistic, probably for decades. It's a bit hard to know why that is, and I've struggled myself. Often there seems to be a bit of 'them and us' when it comes to dealing with visa applications at the pointy end. I'm sure everybody in this room will echo an experience where they've had an altercation or a disagreement with a case officer. It's incredibly frustrating, and it doesn't need to be that way. It's more at a case officer level.

I used to meet members of the department at briefings and other sessions and, once you start talking to a certain level of management, they're very focused on good relations, looking after stakeholders and best practice. Unfortunately, a lot of that didn't filter down. I can count on many hands the times I've had conversations with case officers who've said: 'We don't we don't look at the law. We don't make decisions according to the law. We just go on policy.' It's all about policy. It almost seemed to be that, if they had the handbook there, they weren't prepared to entertain an argument that there might be a little bit of light and shade and that there might have been an allowance made. I think that's filtered into decision making. It is a mindset. I'd like to hear from other people about this because it is certainly a factor which makes practicing migration work and migration law more difficult than it needs to be. Also there is the lack of ability to effectively communicate with case officers and the attendant frustrations that our clients have with that.

Ms VAMVAKINOU: I guess the role of Immigration could be summed up as a body that issues visas and then has a compliance attitude section, which probably pits you up against it in an adversarial sort of way. That's just a very rudimentary way of trying to understand the relationship. In that case, how is the historical legacy work of the department of immigration now going to work as it's been merged and ended up in Home Affairs with a bigger focus on customs and border protection? I would have thought that would give it more vigour to pursue rogue behaviour. How do you think that changes things? Does it make for a better way—

Mr Hinz : It could do. But this whole Home Affairs thing came out of the aftermath of 9/11—

Ms VAMVAKINOU: Correct.

Mr Hinz : and the need to protect borders and almost the idea of a fortress Australia. That's fine for customs. It's fine for policing all sorts of illegal activity, such as drug trafficking and cross-border behaviour where organised crime is involved. That's certainly part of it. But the department is still the department. It's got a new name. Every three or four years it has a new name. It just seems to be the way it is. You can track how the culture and understanding shifted from a department of multicultural and ethnic affairs to a department of citizenship, almost as if the end goal of all this was to be a citizen. Now we've scrapped all that and we're back to homeland security or border security. So we've gone from this more open, inclusive understanding of what the department is about to something a little bit less benign and more compliance focused. I think it's trying to do too many things. It's wearing too many hats.

Ms VAMVAKINOU: And it's lost a lot of its capacity, hasn't it, in that transition which would allow for some of this work to be done? I'm just putting on the record—

Ms Wilson : I don't quite understand where OMARA has jurisdiction to look at all of these issues. They could have so much anecdotal evidence through their own systems, but I don't see any reports as to how they use that information to make sure that people are then protected. That legislation does have an underlying theme that if an agent has acted for you then that information is what the client has provided. So the clients aren't willing to say what has happened incorrectly because they'll be at risk themselves or someone else that they know will be. I don't think there are enough safeguards for the information to be put forward to someone to find out what's going on, because they're worried about their own visa status.

Ms VAMVAKINOU: That impedes trying to fix anything, really, doesn't it? Sorry. I don't want to hog the debate.

Mr NEUMANN: Do you get the feedback when OMARA make those decisions?

Ms Wilson : I've never seen anything in relation to it. They publish sanctions on their website for different things, but it just looks like the tip of the iceberg to me in terms of—

Mr NEUMANN: 'As to your complaint, it was resolved in this manner'—nothing?

Ms Wilson : I also think there could be more movement from the tribunal's perspective, with the AAT, and what they can say has gone through, because they often take the time. They will actually have a hearing and listen to people compared to a strict decision-making in terms of 'Here's the list of what we want and that's the end of it. We're not going to talk to you about what's required.'

Mr NEUMANN: What about the professional development CPD-type stuff—continuing professional development?

Ms Wilson : I think they do pretty well with that. But in my submission I alluded to the fact that if lawyers were separating out of the joint arrangement that we have at the moment—

Mr NEUMANN: I read about your dilemma.

Ms Wilson : Yes. So the CPD that lawyers will do—and accountants, because I notice they can get some points for their accounting CPD—will not be necessarily directly related to migration work. With registration, with everyone all together, there is that requirement—

Mr NEUMANN: Except an accredited specialist in migration law. They have to do certain levels.

Ms Wilson : Yes. They're the only ones who have to do it in that area. So we're going to open it up to lawyers who have not practised in migration law before, and they will continue to do their CPD in whatever area they choose. It doesn't have to be in migration law. I don't know if it is evident that the number for registration actually gives some indication of the level of experience that practitioners have, which will disappear if lawyers who've been practising for 10 or 15 more years then drop out of the system entirely because of the separate system. I think we could still have a separate disciplinary side of it. OMARA could have a register of everyone who's putting their hand up to practice in this area and just simply have a link. They don't have to charge them the full fee, but $100 a year for just telling them, 'Yes, I'm still doing this and this is my CPD' would be appropriate. Consumers could then go to the relevant law institute or society for discipline-type conduct issues that OMARA is now stepping away from in relation to lawyers.

Mr NEUMANN: What about fees—a comparator for fees? Would it be something that it might be worth OMARA providing: these are the fees that you might pay a migration agent in Sydney, Melbourne or Brisbane?

Ms Kirkwood : They already release that data. As part of our registration, we're required to—

Ms Wilson : It hasn't been updated for a while.

Ms Kirkwood : Not this year.

Mr NEUMANN: That's not the evidence we got. They're not given it regularly.

Ms Kirkwood : Up until this year, I had to enter every single fee for every category that we were applying, and that information was on the database. So we actually looked at our fees to see what range there in to make sure they're not too high. That has been publicly available for consumers.

Mr NEUMANN: It has in the past, I think, but there have been criticisms.

Ms Taft : Depending on the complexity of the case at hand or various factors that may be unforeseen, those fees have been taken away.

Mr NEUMANN: It should be advisory rather than discriminatory.

Ms Kirkwood : Yes, I think so.

Mr NEUMANN: You talked about minimum experience and that sort of stuff. It reminded me of when I was an article law clerk back in 1985 in the Ipswich Magistrates Court. A stipendiary magistrate known as Pooler criticised me because I wanted to make submissions when one of my clients was pleading guilty and the senior partner of the firm hadn't arrived. He said, 'Mr Neumann, you do not have the requisite experience to be making submissions in relation to a plea of guilty in the Magistrates Court on assault.' There's reference here to what people have said about minimum periods of experience for new migration agents before they appear before the AAT. Do you have any thoughts on that?

Ms Wilson : I think it's generally a great idea, but most people self-regulate. When I started there was no way I was going from being a practising lawyer doing a few—you could do up to five—cases a year to then moving totally into that area without working for someone else first and getting that experience and mentoring from someone else. Because it became easier to get registered as a migration agent, and they recognised the 12 months—and because of the education industry; there's a course for everyone now—there's not that level of difficulty in getting into some of these courses. If you've got the money to pay the fees you can do that. After that, it's straight into practice. That would seem crazy to me but—

Mr NEUMANN: Should there be some supervised level of practice, like in the UK, of a year or so?

Ms Wilson : the two-year period sounds appropriate. And I realised—

CHAIR: you mentioned five years before. Is that correct?

Ms Kirkwood : That was five years for the AAT. But the supervision period—you would have had the opportunity to read all the submissions; some of the issues related to the level of people entering the field versus the number of experienced practitioners. I think this division that's about to occur with migration agents, with lawyers not being able to work in migration firms, is only going to exacerbate that. We work, with Fragomen, with lawyers and migration agents working equally at their level of experience.

One of our best agents is agonising over the decision she has to make in November. She's going to have to let us know in the upcoming months whether she'll be able to continue working for us or she'll have to go out and find another job. She's never worked in a legal firm. She'll have to choose between going and working at a legal firm, which she doesn't want to do, and setting up her own practice. What a choice to have to make, and she doesn't want to have to make it.

If people like that are no longer able to work in migration firms, 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. 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.

CHAIR: Thank you for your attendance today. If the committee has any further questions they'll be put to you in writing. You'll be sent a copy of the transcript of evidence and will have an opportunity to request corrections to transcriptional errors. Before I close the public hearing, I'll call upon a member of the committee to move that the committee's authorised the publication of the evidence given before it at the public hearing today, including any publication of proof transcripts of the parliamentary electronic database. There being no objection, it is resolved.

Committee adjourned at 15:08