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Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2004

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2002 - 2003- 2004

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS INTEGRITY MEASURES) BILL 2003

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

(Government)

 

 

 

(Amendments to be Moved on Behalf of the Government)

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Citizenship and Multicultural Affairs

The Hon. Gary Hardgrave MP)

 

 



AMENDMENTS TO MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS INTEGRITY MEASURES) BILL 2003

 

OUTLINE

 

1.       The purpose of these amendments to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (the Bill) is to:

 

·          address recommendations made by the Senate Legal and Constitutional Legislation Committee in relation to disciplining migration agents who engage in vexatious activity and requiring agents to hold professional indemnity insurance; and

 

·          clarify issues raised in recent litigation before the Administrative Appeals Tribunal (AAT) concerning the automatic continuation of an agent’s registration under section 300 of the Migration Act 1958 where the Migration Agents Registration Authority (the MARA) has made a decision to suspend or cancel the agent’s current registration, and the decision has been stayed by the AAT.

 

1.               These amendments will:

 

·          require the MARA to wait until any review proceedings in relation to a decision to cancel or suspend a migration agent’s previous registration are finalised before it makes a decision to approve or refuse the agent’s application for re-registration;

 

·          provide that an applicant must not be registered within 5 years of having his or her registration cancelled or if any suspension of his or her previous registration would still be in effect if the registration had not ended;

·          provide that a person must not be registered as a migration agent unless the MARA is satisfied that they have professional indemnity insurance as prescribed by the regulations;

·          provide that, if an agent’s registration has been suspended or cancelled, that agent’s registration will not be automatically continued because the MARA has not decided their application for re-registration before the last day of their registration period;

 

·          require the MARA to publish details about disciplinary decisions taken against registered migration agents and former migration agents as soon as possible after the agent has received notice of the decision;

 

·          enable the MARA to make a list of former migration agents, their migration agents registration number and the date they ceased to be registered, publicly available for a prescribed period;

·          enable the regulations to specify the matters that the Minister must have regard to in determining whether a registered agent, or former agent, should be referred to the MARA for having a high visa refusal rate;

·          provide the MARA with the discretion to determine whether an agent who is referred to the MARA for having a high visa refusal rate should be cautioned, or have his or her registration suspended or cancelled, or the period for which a former agent should be barred from being registered;

·          extend the period from 14 to 21 days within which an agent, or former agent, may make submissions to the Minister on the reasons for having a high visa refusal rate and on the appropriate disciplinary action to be taken against the agent if there is a referral;

·          remove the power for the Minister to direct the MARA to revoke a mandatory decision made in relation to a registered migration agent or former agent who has a high visa refusal rate; and

·          clarify that under proposed sections 312A and 312B of the Bill migration agents are only required to notify the Department, or the appropriate Tribunal, in relation to immigration assistance given after the agent has agreed to represent the visa applicant or review applicant.

 

FINANCIAL IMPACT STATEMENT

 

1.               The proposed amendments will have a minimal financial impact.



AMENDMENTS TO MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS INTEGRITY MEASURES) BILL 2003

 

NOTES ON AMENDMENTS

 

Amendment (1)

 

1.       This amendment inserts new item 36A after item 36 of the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (the Bill).

 

Item 36A             Paragraph 287(2)(h)

 

2.       This item makes a minor amendment to ensure that particulars of any caution given to an agent under subsection 306AG(1) must also be shown on the Register. This amendment is consequential to amendment (17) which amends new section 306AG of the Bill to allow the Migration Agents Registration Authority (the MARA) to caution an agent who is referred by the Minister for having a high visa refusal rate.

 

Amendment (2)

 

3.       This amendment inserts new item 38A after item 38 of the Bill.

 

Item 38A             After subsection 287(3)

 

4.       This item inserts new subsection 287(3A) after subsection 287(3) of the Migration Act 1958 (the Act).

 

5.       New subsection 287(3A) allows the MARA to publish a list of persons who are former registered migration agents, including their migration agent registration numbers and the date their registration ended. It also requires the MARA to remove a person’s details from this list at the end of the prescribed period. It is intended that the list will be published on the MARA website and will be in neutral language so as not to imply any wrongdoing on the part of the migration agent. It will include persons who have deregistered themselves or have had their application for re-registration as a migration agent refused by the MARA.

 

6.       The purpose of this provision is to improve consumer protection and awareness by making it clear that a person is no longer registered as a migration agent, and therefore is not allowed to provide immigration assistance.

 

Amendment (3)

 

7.       This amendment inserts new subsection 288(6A) after proposed subsection 288(6) (contained in item 40 of the Bill).

 



8.       The effect of new subsection 288(6A) is that if an applicant for re-registration as a migration agent has had his or her previous registration suspended or cancelled, the MARA must not consider the application until all review proceedings (including any appeals) relating to the suspension or cancellation decision have been finalised.

 

9.       The purpose of this provision is to ensure that the MARA’s decision to approve or refuse an application for re-registration is not based on information which is subject to review proceedings. For example, new subsection 288(6A) will prevent the situation arising where the MARA refuses an application for re-registration because the applicant’s previous registration is suspended, and the decision to suspend the agent is later overturned on appeal. As a result of this amendment, the MARA will not be able to make a decision on the application for re-registration until the review proceedings are finalised.

 

Amendment (4)

 

10.     This amendment inserts new item 46A after item 46 of the Bill.

 

Item 46A             Subsection 289(4)

 

11.     This item makes a minor technical amendment to subsection 289(4) consequential to new section 300 inserted by item 63 (contained in proposed amendment (8)).

 

Amendment (5)

 

12.     This amendment inserts new item 55A after item 55 of the Bill.

 

Item 55A             After section 291

 

13.     This item inserts new section 291A after section 291 of the Act.

 

Section 291A      Applicant must not be registered if suspension would be in effect

 

14.     The purpose of new section 291A is to address the problem of suspensions against agents losing their effect. This is because if the registration ends, for example the agent de-registers him or herself, the suspension may no longer be effective.

 

15.     New section 291A provides that an applicant must not be re-registered if any suspension of his or her previous registration would still be in effect if the registration had not already ended. This is to ensure that, even if a suspension of an agent’s registration is not effective because the registration has ended, the MARA must not re-register the agent until the period of the suspension would have passed or the agent has met any conditions set for the lifting of the suspension.  

 



16.     For example, if an agent’s registration is suspended and the agent deregisters him or herself under section 302, the suspension will end because the registration it suspends has ended. New section 291A has the effect that the agent cannot be registered until the suspension period would have ended if the agent had not been deregistered.

 

17.     As a further example, if the MARA suspends an agent’s registration, and the Administrative Appeals Tribunal (the AAT) makes a stay order enabling the agent to continue to practice until the review is finalised, then the agent’s registration period may end while the stay order is in force. New subsection 288(6A) (contained in proposed amendment (3)) prevents the agent from being re-registered until the review proceedings are finalised, and new section 291A means that the agent cannot be re-registered if the decision to suspend is upheld on review, and the suspension has not been completed.

 

18.     As a final example, if the MARA suspends an agent’s registration after it has been taken to continue under section 300, new paragraph 300(4)(b) (contained in proposed amendment (8)) ends the agent’s registration. New section 291A operates to prevent the agent from being re-registered whilst the suspension would have been in effect if the registration had not ended.

 

Amendment (6)

 

19.     This amendment substitutes item 56 of the Bill with new item 56.

 

Item 56                Section 292

 

20.     This item repeals existing section 292 of the Act and substitutes new section 292.

 

Section 292         Applicant must not be registered if registration cancelled in past 5

years

 

21.     New section 292 is similar to existing section 292 of the Act in that it excludes a person from being registered for 5 years if the person has had his or her previous registration as a migration agent cancelled.

 

22.     Under existing section 292 the exclusion period only applies if the cancellation decision was made before the agent applied for re-registration, whereas new section 292 operates to exclude any agent from being registered within 5 years of a cancellation decision, whether or not the agent had made an application for re-registration before the cancellation decision was made.

 

23.     The purpose of new section 292 is to ensure that if an agent’s registration is cancelled after he or she has already made an application for re-registration, the 5 year exclusion period will still have effect. For example, if an agent’s registration is cancelled after it has been taken to continue under section 300, which means the cancellation decision was made after the agent applied for re-registration, new section 292 will prevent the agent from being registered within 5 years of the cancellation.

Amendment (7)

 

24.     This amendment inserts new item 58A after item 58 of the Bill.

 

Item 58A             After section 292A

 

25.     This item inserts new section 292B after section 292A of the Act to provide that the MARA must not register an applicant for registration as a migration agent unless it is satisfied that the applicant has professional indemnity insurance as prescribed by the regulations.

 

26.     New subsection 292B(2) makes it clear that all applicants, whether they are first time applicants or applicants who are re-registering as a migration agent, must have professional indemnity insurance.

 

Amendment (8)

 

27.     This amendment substitutes item 63 of the Bill with new item 63.

 

Item 63                Section 300

 

28.     This item repeals existing section 300 of the Act and inserts new section 300.

 

29.     In broad terms, new section 300 sets out when an agent’s registration will be automatically continued because the MARA has not decided the agent’s application for re-registration before the last day of the agent’s registration period (the expiry day).

 

30.     The purpose of new section 300 is to limit the circumstances in which an agent’s registration can be automatically continued because the MARA has not made a decision in relation to the agent’s application for re-registration before the agent’s current registration expires. This will ensure that an agent’s registration will not be extended for lengthy periods until review proceedings arising from the cancellation or suspension of an agent’s registration or a decision to refuse to re-register an agent are finalised.

 

31.     New subsection 300(1) is similar to existing subsection 300(1) of the Act. However, unlike existing subsection 300(1) of the Act which provides that an agent’s registration continues until the MARA makes a decision in relation to the application for re-registration, new subsection 300(1) provides that an agent’s registration is taken to continue until one of the events set out in new subsection 300(4) occurs.

 

32.     New subsections 300(2) and (3) provide exceptions to the general rule under subsection 300(1).

 



33.     New subsection 300(2) provides that an agent’s registration will not be continued under subsection 300(1) if the MARA has made a decision to suspend the agent’s registration before the expiry day, unless the suspension has been completed or there is a decision of the AAT or a court (other than a stay order) in force to the effect that the agent’s registration is not suspended or cancelled.

 

34.     New subsection 300(3) provides that an agent’s registration will not be continued under subsection 300(4) if the MARA has made a decision to cancel the agent’s registration before the expiry day, unless there is a decision of the AAT or a court (other than a stay order) in force to the effect that the agent’s registration is not suspended or cancelled, or if the MARA’s decision has been substituted for a suspension decision and the suspension has been completed.

 

35.     The purpose of new subsections 300(2) and (3) is to prevent an agent, who has been granted a stay order in relation to a decision to cancel or suspend his or her registration, from extending his or her registration until review proceedings have been finalised.

 

36.     The effect of new subsection 300(4) is that an agent’s registration is taken to continue until the MARA makes a decision in relation to the re-registration application, the MARA suspends or cancels the agent’s registration or it has been 10 months since the expiry day.

 

37.     If the MARA suspends or cancels an agent’s registration after it has been taken to continue under new subsection 300(1), new subsection 288(6A) provides that the MARA must not consider the outstanding re-registration application until all review proceedings relating to the suspension or cancellation decision have been finalised.

 

38.     If a suspension or cancellation decision is in effect after all review proceedings have been finalised, new sections 291A and 292 exclude the agent from being re-registered within 5 years of the cancellation decision or until the suspension would have been completed if the registration had not ended.

 

39.     If an agent’s registration is taken to continue after the expiry day, then new subsection 300(5) provides that the application for re-registration is taken to have been granted 10 months after the expiry day.

 

40.     New subsection 300(6) is the same as existing subsection 300(3). It provides that if the MARA grants the re-registration application or the re-registration application is taken to have been granted under new subsection 300(5), then the registration is taken to have had effect at the end of the expiry day.



 

41.     New subsection 300(7) makes it clear that, for the purposes of new section 300, the MARA is taken to have made a decision, even if the decision is later stayed by the AAT or a court. For example, any orders made by the AAT or a court staying the operation of a decision to suspend or cancel an agent’s registration pending finalisation of review proceedings do not affect the operation of new subsections 300(2) and (3) to prevent the agent’s registration being continued under new subsection 300(1).

 

Amendment (9)

 

42.     This amendment amends the first note below subsection 303, contained in item 68 of the Bill, to point out that the MARA is required to caution a migration agent or cancel or suspend a registered migration agent’s registration in certain circumstances.

 

43.     This amendment is consequential to amendment (17), which inserts new section 306AG to provide that if the Minister refers a registered migration agent to the MARA for disciplinary action, the MARA must caution a migration agent or cancel or suspend a registered migration agent’s registration.

 

Amendment (10)

 

44.     This amendment omits subsections 305A(1) and (2), contained in item 72 of the Bill, and inserts new subsection 305A(1).

 

45.     New subsection 305A(1) is similar to new subsection 306AL(1), as amended by proposed amendment (22), which relates to the publication of mandatory disciplinary action taken against current registered migration agents. It is also similar to new sections 311C and 311P, as amended by proposed amendments (25) and (34), which relate to former registered migration agents.

 

46.     In broad terms, new subsection 305A(1) allows the MARA to publish details about discretionary disciplinary action taken under section 303 against a registered migration agent as soon as possible, provided that the agent has been given notice of a decision.

 

47.     New paragraph 305A(1)(a) provides that the MARA must make available, in the prescribed way, a statement that sets out the disciplinary decision and specifies the grounds for the decision. For example, the MARA may be required to make a decision to suspend or cancel an agent’s registration available on the MARA website.

 

48.     New paragraph 305A(1)(b) also enables the MARA to prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the MARA thinks fit. For example, the MARA may publish a notice in a newspaper locally, or abroad in an Australian embassy or foreign newspaper.



 

49.     The purpose of new subsection 305A(1) is to enable the MARA to make accurate and up-to-date records of disciplinary decisions taken against agents publicly available. This will ensure that persons seeking to engage a migration agent will have ready access to information about whether the agent has had his or her registration cancelled or suspended, or has been cautioned.

 

50.     New subsection 305A(1) enables the MARA to publish information about a disciplinary decision, whether or not a stay order has been made in relation to the decision.

 

51.     It is envisaged that regulations will be made under new paragraph 287(2)(i) (contained in item 37 of the Bill) to require the MARA to publish information about whether the migration agent has appealed the cancellation or suspension decision, and if a stay order has been granted in relation to the decision.

 

Amendment (11)

 

52.     This amendment omits subsection 305B(2), proposed to be inserted by item 73 of the Bill, consequential to new subsection 305A(1) (see proposed amendment (10)). 

 

53.     The purpose of subsection 305B(2) was to make it clear that the MARA and the Secretary are not required to wait 28 days, or until the end of all review proceedings, before informing one or more clients of disciplinary action that has been taken against their agent. Since amended subsection 305A(1) allows the MARA to publish information about disciplinary action taken against agents as soon as possible, subsection 305B(2) is no longer necessary. 

 

Amendment (12)

 

54.     This amendment amends the third note below subsection 306AC(1), contained in item 75 of the Bill, to point out that both the Minister’s decision to refer an agent to the MARA for having a high visa refusal rate, and the MARA’s mandatory decision to take disciplinary action against the agent, are reviewable by the AAT.

 

55.     This amendment is consequential to amendment (20), which amends new section 306AJ to provide that the MARA’s decision to sanction an agent under section 306AG is reviewable by the AAT.

 

Amendment (13)

 

56.     This amendment inserts new subsection 306AC(5) at the end of section 306AC, contained in item 75 of the Bill. New subsection 306AC(5) is similar to new subsection 311H(2), which relates to former registered migration agents.



 

57.     New subsection 306AC(5) requires the Minister to take into account any matter prescribed by the regulations when deciding whether an agent should be referred to the MARA for having a high visa refusal rate. The purpose of new subsection 306AC(5) is to ensure that agents are aware of what considerations will be taken into account by the Minister when deciding whether to refer an agent to the MARA.  

 

58.     It is envisaged that the regulations will prescribe that the Minister must take into account the following matters, when deciding whether or not to refer an agent to the MARA for mandatory sanctioning:

 

·          whether the agent’s client failed to meet the relevant visa criteria at the time of decision for grant of a visa, despite having been able to meet those time of decision criteria at the time of application;

·          whether the agent's client failed to meet the relevant visa criteria due to a change in the criteria set out in legislation or policy between the time of application and the time of decision;

·          whether the circumstances in a country of origin have changed sufficiently to cause the agent's client to have been refused a protection visa;

·          whether any of the agent's clients' applications refused at primary or review stage have subsequently been granted, following judicial review proceedings or intervention by the Minister; and

·          any other matter that the Minister considers relevant.

 

Amendment (14)

 

1.       This amendment inserts new subparagraph 306AE(1)(b)(ia) into section 306AE (contained in item 75 of the Bill), to also require the Minister to invite a registered agent to make a written submission on the disciplinary action to be taken against the agent if the Minister decides to refer the agent to the MARA. An agent will be invited to make this submission at the same time the agent makes a submission concerning whether he or she should be referred to the MARA for having a high visa refusal rate.

 

2.       The purpose of this amendment is to ensure that an agent is also given an opportunity to be heard on the issue of what sanction should be imposed in a particular case.



 

3.       It is envisaged that when the Minister invites a registered agent to make a submission on the disciplinary action to be taken against him or her, the Minister will also advise the agent in writing that this will be the only opportunity that the agent will be given to make such a submission. It will be explained to the agent that he or she will not be given an opportunity to make a submission directly to the MARA, as the MARA will not be required to investigate the agent's conduct further and will simply need to decide on the appropriate level of sanction, with reference to the information provided by the Minister.

 

Amendment (15)

 

4.       This amendment amends paragraph 306AE(1)(c), contained in item 75 of the Bill, to extend the period within which an agent may make a written submission to the Minister giving reasons for the high visa refusal rate, the disciplinary action to be taken if the Minister decides to refer the agent, or in relation to any other relevant matter. This amendment extends the period from 14 days to 21 days to ensure an agent has a sufficient period of time to make a written submission.

 

5.       This amendment is similar to the amendment made by amendment (29), which relates to the period within which a former migration agent is required to make a submission.

 

Amendment (16)

 

6.       This amendment inserts new subsection 306AF(2A) after subsection 306AF(2), contained in item 75 of the Bill, to require the Minister to provide the MARA with a copy of any submission received under new section 306AE(1) at the same time the Minister gives the MARA written notice of a decision to refer the agent.

 

Amendment (17)

 

7.       This amendment replaces section 306AG, contained in item 75 of the Bill, with new subsection 306AG.

 

Section 306AG                  Taking of disciplinary action

 

8.       There are two key differences between existing subsection 306AG(1) of the Bill and new subsection 306AG(1). Firstly, new subsection 306AG(1) gives the MARA the discretion to determine which sanction should be imposed on an agent, whereas existing subsection 306AG(1) required the MARA to make a particular mandatory decision depending on whether the agent had previously been referred to the MARA for having a high visa refusal rate. The MARA will still however be required to make a sanction decision once a referral decision is made.

 

9.       Secondly, new subsection 306AG(1) allows the MARA to caution an agent who has been referred under section 306AC where the MARA decides that would be more appropriate than suspending or cancelling an agent’s registration.

 

10.     New subsection 306AG(2) provides that the MARA must take the Minister’s findings of fact in relation to the referral decision to be correct.

 

11.     New subsection 306AG(3) limits the matters that the MARA must take into account in making its decision as to which sanction to impose on an agent. It provides that the MARA must take into account:

 

·          any submission made by the agent under subsection 306AE(1);

·          the Minister’s findings of fact in relation to the referral decision; and

·          the grounds given by the Minister for deciding to refer the agent to the MARA.

 

1.       New subsection 306AG(4) provides that new sections 306AG, 306AE and sections 494A to 494D, which relate to the giving of documents by the Minister, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the MARA’s decision under subsection 306AG(1).

 

2.       New subsection 306AG(5) requires the MARA to make its decision as to which sanction to impose on the agent as soon as possible, but no later than 14 days after receiving the Minister’s notice of the referral.

 

3.       New subsection 306AG(6) is similar to subsection 306AF(3) inserted by item 75 of the Bill, and requires the MARA to give the agent written notice of its decision. New subsection 306AC(6) also requires the MARA to set out reasons for its decision. 

 

4.       New subsection 306AG(7) provides that the decision takes effect at the time the agent is given written notice of it. The note at the end of new subsection 306AC(7) points out that the agent is taken to have been given the notice in accordance with new section 332H, which is contained in item 170 of the Bill.

 

5.       These provisions have been inserted to ensure that an agent is given the opportunity to comment on any referral or mandatory decisions.

 

6.       The purpose of these provisions is also to enable the MARA to make a mandatory decision without having to seek further submissions from an affected agent, who has already stated their case to the Minister, or having to re-investigate the relevant issues. S306AF(2A) requires the Minister to provide the MARA with a copy of any submission received from an affected agent at the same time the Minister gives the MARA written notice of a decision to refer an agent. Thus, the MARA will be able to take into account the affected agent's submissions when deciding what level of sanction it is appropriate to impose. It is inappropriate for the disciplinary process to be delayed further, leaving consumers at risk, to allow affected agents to make their case a second time.

 

Amendment (18)

 

7.       This amendment inserts new section 306AGA after new section 306AG.

 

Section 306AGA                             Cautions or suspensions

 

8.       New section 306AGA is consequential to amended section 306AG, which gives the MARA the discretion to determine which sanction should be imposed on an agent. New section 306AGA provides that the MARA may set one or more conditions for the lifting of a caution given to an agent under paragraph 306AG(1)(a) or a suspension of an agent’s registration imposed under paragraph 306AG(1)(b).

 

9.       New subsection 306AGA(1) is similar to new section 304A, contained in item 71 of the Bill, and ensures that the MARA has the discretion to take the same disciplinary action that it may take under other provisions of the Act. Similarly, new subsection 306AGA(2) is similar to existing paragraph 304(1)(b) of the Act.

 

10.     New subsection 306AGA(3) allows the MARA to set as a condition for the lifting of a suspension imposed under paragraph 306AG(1)(b) that at least a set period of a suspension has ended, provided that this is one of at least two conditions for the lifting of the suspension set by the MARA.

 

Amendment (19)

 

11.     This amendment deletes new sections 306AH and 306AI, contained in item 75 of the Bill. These sections were included in the Bill to allow the Minister to direct the MARA to revoke a mandatory decision made to cancel or suspend the registration of an agent who has a high visa refusal rate.

 

12.     The purpose of this amendment is to limit the discretionary powers of the Minister contained in the Bill.

 

Amendment (20)

 

13.     This amendment replaces new section 306AJ, contained in item 75 of the Bill, with new section 306AJ to provide that the MARA’s mandatory decision to take disciplinary action against a registered migration agent, as well as the Minister’s decision to refer an agent to the MARA for having a high visa refusal rate, are reviewable by the AAT. The MARA’s mandatory decision is now subject to review because amendment (17) introduces a discretion for the MARA to determine which sanction should be imposed on an agent.

 

14.     Since both a referral decision and a mandatory decision are reviewable, new subsection 306AJ(2) provides that an agent may only seek review of the referral decision after the mandatory decision has been made. The purpose of new subsection 306AJ(2) is to prevent an agent frustrating the mandatory sanction decision by seeking a stay of the referral decision. The new subsection also aims to facilitate both decisions being reviewed at the same time.

 

15.     New subsection 306AJ(3) provides that paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) does not apply to an application for review of the referral decision. This is because paragraph 29(1)(d) of the AAT Act requires a review application to be lodged during the period commencing on the day on which the decision is made and ending 28 days after the day on which a document setting out the decision is provided to the applicant.

 

16.     New section 306AG(5) allows the MARA up to 14 days to make its mandatory decision after receiving notice of the referral decision. This means that, according to the AAT Act, an agent may only have a maximum of 14 days to make an application for review of the referral decision. New subsection 306AJ(3) overrides the AAT Act to give an agent sufficient time to seek review of the referral decision after the mandatory decision is made.  Under paragraph 306AJ(2)(b) an agent will have up to 28 days from receiving the reasons for the mandatory decision to seek review of the mandatory decision as well as the referral decision.

 

Amendment (21)

 

17.     This amendment replaces new section 306AK of the Bill with new section 306AK, consequential to amendment (20).

 

18.     New section 306AK was included in the Bill because the mandatory nature of the MARA’s decision to cancel or suspend the registration of a registered agent under section 306AG meant it was not reviewable. New section 306AK allowed a Tribunal or court to make orders in relation to the MARA’s mandatory decision if a registered migration agent sought review of the Minister’s referral decision.

 

19.     Since amendment (17) gives the MARA some discretion in making its decision to discipline an agent under section 306AG, amendment (20) provides that both the Minister’s referral decision and the MARA’s mandatory decision will be reviewable by the AAT. As a result, new section 306AK is no longer necessary.

 

20.     However, because the MARA’s mandatory decision is now subject to review by the AAT, this amendment inserts new section 306AK to ensure that an agent will be adequately supervised if a stay order is made in relation to a decision under section 306AG to cancel or suspend the agent’s registration. This section is similar to new section 306AA contained in item 74 of the Bill.

 

Amendment (22)

 

21.     This amendment omits subsections 306AL(1) and (2), contained in item 75 of the Bill, and inserts new subsection 306AL(1).

 

22.     In broad terms, new subsection 306AL(1) allows the MARA to publish details about mandatory disciplinary action taken under section 306AG against a registered migration agent as soon as possible, provided that the agent has been given notice of a decision.

 

23.     New subsection 306AL(1) is similar to new subsection 305A(1), as amended by proposed amendment (10), which relates to the publication of discretionary disciplinary action taken against current registered migration agents by the MARA under section 303. It is also similar to new sections 311C and 311P, as amended by proposed amendments (25) and (34), which relate to former registered migration agents.

 

Amendment (23)

 

24.     This amendment amends new paragraph 306AM(1)(c), contained in item 75 of the Bill, to enable the MARA or the Secretary to publish information about a mandatory decision that has been taken against a registered migration agent, whether or not the agent has applied for review of the referral decision or the mandatory decision. This amendment is consequential to amendment (20), which amends new section 306AJ of the Bill to provide that the MARA’s mandatory decision is reviewable by the AAT.

 

Amendment (24)

 

25.     This amendment omits subsection 306AM(2), proposed to be inserted by item 75 of the Bill, consequential to new subsection 306AL(1) (see proposed amendment (22)).

 

26.     The purpose of subsection 306AM(2) was to make it clear that the MARA and the Secretary are not required to wait 28 days, or until the end of all review proceedings, before informing one or more clients of disciplinary action that has been taken against their agent. Since amended subsection 306AL(1) allows the MARA to publish information about disciplinary action taken against agents as soon as possible, subsection 306AM(2) is no longer necessary. 

 

Amendment (25)

 

27.     This amendment omits subsections 311C(1) and (2), contained in item 137 of the Bill, and inserts new subsection 311C(1).

 

28.     In broad terms, new subsection 311C (1) allows the MARA to publish details about discretionary disciplinary action taken under section 311A against a former registered migration agent as soon as possible, provided that the former agent has been given notice of the decision.

 

29.     New subsection 311C(1) is similar to new subsection 311P(1), as amended by proposed amendment (34), which relates to the publication of mandatory disciplinary action taken against former registered migration agents. It is also similar to new subsections 305A(1) and 306AL(1), as amended by proposed amendments (10) and (22), which relate to current registered migration agents.

 



Amendment (26)

 

30.     This amendment amends the third note below section 311H, contained in item 142 of the Bill, to point out that both the Minister’s decision to refer a former agent to the MARA for having a high visa refusal rate, and the MARA’s mandatory decision to take disciplinary action against the agent, are reviewable by the AAT.

 

31.     This amendment is consequential to amendment (32), which amends new section 311M to provide that the MARA’s decision to sanction an agent under section 311L is reviewable by the AAT.

 

Amendment (27)

 

32.     This amendment inserts new subsection 311H(2) at the end of section 311H, contained in item 142 of the Bill.

 

33.     New subsection 311H(2) requires the Minister to take into account any matter prescribed by the regulations when deciding whether a former agent should be referred to the MARA for having a high visa refusal rate. The purpose of new subsection 311H(2) is to ensure that agents are aware of what considerations will be taken into account by the Minister when deciding whether to refer a former agent to the MARA.  

 

34.     It is envisaged that the regulations will prescribe that the Minister must take into account  the following matters, when deciding whether or not to refer a former registered agent to the MARA for mandatory sanctioning:

 

·          whether the agent's client failed to meet the relevant visa criteria at the time of decision for grant of a visa, despite having been able to meet those time of decision criteria at the time of application;

·          whether the agent's client failed to meet the relevant visa criteria due to a change in the criteria set out in legislation or policy between the time of application and the time of decision;

·          whether the circumstances in a country of origin have changed sufficiently to cause the agent's client to have been refused a Protection visa;

·          whether any of the agent's clients' applications refused at primary or review stage have subsequently been granted, following judicial review proceedings or intervention by the Minister; and

·          any other matter that the Minister considers relevant.



Amendment (28)

 

1.       This amendment amends paragraph 311J(1)(b), contained in item 142 of the Bill, to also require the Minister to invite a former agent to make a written submission on the period the agent should be barred from being registered if the Minister decides to refer the agent to the MARA for sanctioning. An agent will be invited to make this submission at the same time the agent makes a submission concerning whether he or she should be referred to the MARA for having a high visa refusal rate.

 

2.       The purpose of this amendment is to ensure that a former agent is also given an opportunity to be heard on the issue of what barring period should be imposed in a particular case.

 

3.       It is envisaged that when the Minister invites a former registered agent to make a submission on the disciplinary action to be taken against him or her, the Minister will also advise the agent in writing that this will be the only opportunity that the agent will be given to make such a submission. It will be explained to the agent that he or she will not be given an opportunity to make a submission directly to the MARA, as the MARA will not be required to investigate the agent's conduct further and will simply need to decide on the appropriate level of sanction, with reference to the information provided by the Minister.

 

Amendment (29)

 

4.       This amendment amends paragraph 311J(1)(c), contained in item 142 of the Bill, to extend the period within which a former agent may make a written submission to the Minister giving reasons for the high visa refusal rate or in relation to any other relevant matter. This amendment extends the period from 14 days to 21 days.

 

Amendment (30)

 

5.       This amendment inserts new subsection 311K(2A) to require the Minister to give the MARA a copy of any submission made by a former registered migration agent under subsection 311J(1) at the same time the Minister gives the MARA written notice of a decision to refer the agent for having a high visa refusal rate

 

Amendment (31)

 

6.       This amendment replaces section 311L, contained in item 142 of the Bill, with new subsection 311L. This amendment is similar to amendment (17), which applies to registered migration agents.

 



Section 311L       Taking of disciplinary action

 

7.       The main difference between existing subsection 311L(1) of the Bill and new subsection 311L(1) is that new subsection 311L(1) gives the MARA the discretion to determine the period (being not for more than 5 years) for which a former agent should be barred from being registered as a migration agent, whereas existing subsection 311L(1) required the MARA to make a mandatory decision depending on whether the former agent had previously been referred to the MARA for having a high visa refusal rate. The MARA will still however be required to make a sanction decision once a referral decision is made.

 

8.       New subsection 311L(2) provides that the MARA must take the Minister’s findings of fact in relation to the referral decision to be correct.

 

9.       New subsection 311L(3) limits the matters that the MARA must take into account in making its decision as to how long a former agent should be barred from being registered. It provides that the MARA must take into account:

 

·          any submission made by the former agent under subsection 311J(1);

·          the Minister’s findings of fact in relation to the referral decision; and

·          the grounds given by the Minister for deciding to refer the former agent to the MARA.

 

1.       New subsection 311L(4) provides that section 311J and sections 494A to 494D, which relate to the giving of documents by the Minister, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the MARA’s decision under subsection 311L(1).

 

2.       New subsection 311L(5) requires the MARA to make its decision as to the period for which a former agent should be barred from being registered as a migration agent as soon as possible, but no later than 14 days after receiving the Minister’s notice of the referral.

 

3.       New subsection 311L(6) is similar to subsection 306AG(6) of the Bill, and requires the MARA to give the former agent written notice of its decision. New subsection 311L(6) also requires the MARA to set out reasons for its decision. 

 

4.       New subsection 311L(7) provides that the decision takes effect at the time the former agent is given written notice of it. The note at the end of new subsection 311L(7) points out that the former agent is taken to have been given the notice in accordance with new section 332H, which is contained in item 170 of the Bill.

 

5.       These provisions have been inserted to ensure that a former agent is given the opportunity to comment on any referral or mandatory decisions. 

 

6.       The purpose of these provisions is also to enable the MARA to make a mandatory decision without having to seek further submissions from an affected former agent, who has already stated their case to the Minister, or having to re-investigate the relevant issues. S311K (2A) requires the Minister to provide the MARA with a copy of any submission received from an affected former agent at the same time the Minister gives the MARA written notice of a decision to refer a former agent. Thus, the MARA will be able to take into account the affected agent's submissions when deciding what level of sanction it is appropriate to impose. It is inappropriate for the disciplinary process to be delayed further, leaving consumers at risk, to allow affected agents to make their case a second time.

 

Amendment (32)

 

7.       This amendment amends new section 311M, contained in item 142 of the Bill, to provide that the MARA’s mandatory decision to take disciplinary action against a former agent, as well as the Minister’s decision to refer a former agent to the MARA for having a high visa refusal rate, are reviewable by the AAT. MARA’s mandatory decision is now subject to review because amendment (31) introduces a discretion for the MARA to determine to the period for which a former agent should be barred from being registered as a migration agent.

 

Amendment (33)

 

8.       This amendment deletes new section 311N, contained in item 142 of the Bill. The purpose of new section 311N was to allow a Tribunal or court to make orders in relation to the MARA’s mandatory decision under section 311L if a former agent sought review of the Minister’s referral decision.

 

9.       Since amendment (32) has the effect that both the Minister’s referral decision and the MARA’s mandatory decision will be reviewable by the AAT, new section 311N is no longer necessary.

 

Amendment (34)

 

10.     This amendment omits subsections 311P(1) and (2), contained in item 142 of the Bill, and inserts new subsection 311P(1).

 

11.     In broad terms, new subsection 311P(1) allows the MARA to publish details about mandatory disciplinary action taken under section 311L against a former registered migration agent as soon as possible, provided that the former agent has been given notice of the decision.

12.     New subsection 311P(1) is similar to new subsection 311C(1), as amended by proposed amendment (25), which relates to the publication of discretionary disciplinary action taken against former registered migration agents. It is also similar to new subsections 305A(1) and 306AL(1), as amended by proposed amendments (10) and (22), which relate to current registered migration agents.

 



Amendment (35)

 

13.     This amendment replaces subsection 312A(1) inserted by item 149 of the Bill with new subsection 312A(1).

 

14.     The purpose of new subsection 312A(1) is to make it clear that a registered migration agent is only required to notify the Department if he or she gives immigration assistance to a person in relation to a visa application, after having agreed to represent the person. An agent need not notify the Department in relation to preliminary advice given to a person wishing to apply for a visa to enter or remain in Australia. 

 

15.     For example, preliminary advice may include advising a person, who then decides not to proceed with an application, or providing a second opinion to a person who has already lodged a visa application and is represented by another agent.  In contrast, an agent will be subject to the notification requirements where he or she provides advice to a client, who then decides to proceed with lodging an application, or to a person, who has already lodged a visa application with the assistance of another agent, but wishes to be represented by a new agent.

 

Amendment (36)

 

16.     This amendment replaces subsection 312B(1) of the Bill with new subsection 312B(1).

 

17.     The purpose of new subsection 312B(1) is to make it clear that a registered migration agent is only required to notify the relevant tribunal if he or she gives immigration assistance to a person in relation to a review application, after having agreed to represent the person. An agent need not notify the relevant tribunal in relation to preliminary advice given to a person wishing to apply for review of a decision to refuse to grant a visa.

 

18.     For example, preliminary advice may include advising a person, who then decides not to proceed with a review application, or providing a second opinion to a person who has already lodged a review application and is represented by another agent.  In contrast, an agent will be subject to the notification requirements where he or she provides advice to a client, who then decides to proceed with lodging a review application; or to a person, who has already lodged a review application with the assistance of another agent, but wishes to be represented by a new agent.

 

Amendment (37)

 

19.     This amendment inserts an application provision consequential to new subsection 287(3A) (proposed to be inserted by item 38A).

 



Item 173A           Application - list of former registered migration agents

 

20.     The effect of this item is that the MARA may publish a list of former registered migration agents after the commencement of item 38A, whether or not the former agents ceased to be registered before or after commencement, provided that the period prescribed in the regulations for removing a person’s details from the list would not have already passed.

 

Amendment (38)

 

21.     This amendment inserts an application provision consequential to new subsection 288(6A) (proposed to be inserted by item 40).

 

Item 175A           Application - proceedings finalised about previous registration

 

22.     This item provides that new subsection 288(6A), inserted by item 40, only applies in relation to suspension or cancellation decisions made after the commencement of that item.

 

23.     The effect of this item is that the MARA must not consider an application for re-registration if a decision to suspend or cancel the agent’s previous registration was made after the commencement of item 40, and review proceedings relating to that decision have not been finalised.

 

Amendment (39)

 

24.     This amendment inserts application provisions consequential to new sections 291A, 292 and 300 (proposed to be inserted by items 46A, 55A, 56 and 63).

 

Item 179A           Application - automatic continuation of registration

 

25.     This item provides that new section 300, and the corresponding consequential amendment to subsection 289(4), only apply if an agent’s 12 month registration period ends after the commencement of items 46A and 63. In addition, these items do not apply in relation to suspension or cancellation decisions made before that commencement.

 

26.     For example, new subsection 300(2) only applies to prevent an agent’s registration from being automatically continued because the MARA has suspended the agent’s registration, if the decision to suspend was made after commencement. As another example, new paragraph 300(4)(c) only applies to end an agent’s continued registration if the agent’s registration has been taken to continue after the commencement of item 63 and the cancellation decision is also made after commencement.

 

Item 179B           Application - no registration if suspension not completed

 

27.     This item provides that new section 291A only prevents an applicant from being registered if the application for registration and the suspension decision were made after commencement of item 55A.

 

28.     The effect of this item is that an applicant must not be registered if the application for registration was made after commencement of item 55A, and any suspension of his or her previous registration was also made after that commencement and would still be in effect if the registration had not already ended.

 

Item 179C           Application - no registration if cancellation in past 5 years

 

29.     This item provides that new section 292 applies in relation to registration applications made after the commencement of item 56, whether or not the cancellation decision was made before or after that commencement.

 

30.     The effect of this item is that if an application for registration was made after the commencement of item 56, and the applicant’s previous registration had been cancelled under section 303 or 306AG, then the applicant must not be registered within 5 years of the cancellation. It does not matter if the cancellation decision was made before or after commencement.

 

Item 179D           Application -professional indemnity insurance

 

31.     This amendments provides that new section 292B applies in relation to registration applications made after the commencement of item 58A.

 

32.     The effect of this item is that the MARA is only required to be satisfied that an applicant for registration as a migration agent has professional indemnity insurance as prescribed by the regulations in relation to registration applications (initial or repeat) made after the commencement of item 58A.