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

HIRSCH, Mr Asher, Senior Policy Officer, Refugee Council of Australia

[13:22]

CHAIR: Welcome. 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 procedures 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 today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussions. Thank you.

Mr Hirsch : Thank you very much for having me. I'm here on behalf of the Refugee Council of Australia. The Refugee Council is the national umbrella body for refugees, people seeking asylum and the organisations who work with them. We represent over 190 organisations and thousands of individual members. The Refugee Council promotes the adoption of a humane, lawful and constructive policies by government and communities in Australia and internationally. We consult regularly with our members, and this submission is informed by their views. We thank the committee for your time today and appreciate being able to provide some comments on this inquiry.

Migration agents play a vital role in assisting refugees and people seeking asylum to gain protection in Australia and to reunite with separated loved ones. Often their support can mean life or death for a person or their loved ones. However, there has been a marked decrease in the level of funding available for migration agents to provide this support. This decrease in funding for migration agents has forced people who cannot afford a migration agent to rely on family and community members to assist them with their visa applications, resulting in incomplete or inadequate applications.

Migration and refugee law is incredibly complex. I've brought with me today—and the secretariat's handed up an example of this—two different application forms. One is the 866 form for asylum seekers to apply for protection in Australia and the other one is the 842 form for people who want to reunite with their family members. As you can see, they are quite detailed. There are over 30 pages. There are many questions. It would be quite onerous for someone to complete without a migration agent's support. I can come back to that in a second if you have any questions on that.

Many Australians would find these forms complex, but for people who are new to Australia—refugees who have come from many different experiences, may still be learning English and are unaware of our legal processes—the forms can be almost impossible for them to complete by themselves. Further, the desperation of people seeking asylum in Australia with the decrease in migration agent funding has also pushed people to fall into the hands of unscrupulous migration agents, either registered migration agents or those who are claiming to be migration agents. These agents may offer to fast-track their visa application or guarantee an outcome which they have no ability to provide. Further, there might be migration agents who have no experience in refugee law who may provide the support. They may be people who do business or family visas but who have no understanding of the refugee system, which can result in inadequate applications as well.

The office of the Migration Agents Registration Authority has no power to recover fees or remedy any error in the application for either dodgy agents or those who are holding out to be experts in an area in which they are not. We believe that the key way to address unethical practices of migration agents and to stop people resorting to using their friends and family for assistance is to adequately fund expert migration advice through community legal centres and other expert providers. I thank the committee for your time today.

CHAIR: Thanks very much for that. You said MARA does not have any ability to force a migration agent—and it would have to be a migration agent because an unregistered one would be potentially prosecuted—to make a refund. Can you give an example of where someone may have paid money? Do you have an example you could give us?

Mr Hirsch : Yes, I have one case. A few years ago someone came to our office in a quite desperate situation. We are not a legal provider ourselves, but he came asking for help. It turned out that he had given $30,000 to $40,000 to someone who he believed to be a migration agent. They were promising that he could get his family here through the Community Support Program, which had actually closed a few months beforehand. It turned out that the person claiming to be a migration agent had sent money offshore and bought property in another country. He complained to MARA, who said that he wasn't able to get the money back and that they were investigating the migration agent.

CHAIR: Was he a migration agent or an unregistered agent?

Mr Hirsch : I never found out exactly, but this example applies to both people who are unregistered and people who are migration agents.

CHAIR: So either way you'd at least want the applicant to be able to get a refund if an unregistered agent has given wrong advice as determined by MARA. If it were an unregistered agent, you'd want them to be prosecuted and be forced to give a refund.

Mr Hirsch : For an unregistered agent the whole issue there would be taking them to court—

CHAIR: For sure.

Mr Hirsch : through a civil procedure, which often costs a lot of money and people are unable to afford a lawyer to do that. In the example I was talking about we eventually got him pro bono assistance through the Consumer Action Law Centre, who tried to get some funds back through the legal process.

CHAIR: I apologise because I can't remember who gave us the evidence, but their concern was with filling in applications. They didn't have an issue with family members completing the forms. Their concern was when you get a so-called dodgy or unregistered person making numerous applications on behalf of a community. To stop that practice the department would need to do regular audits to find out if someone who is unregistered has submitted 10 applications for 10 different people. I'm trying to work out the concern that not allowing a family member or friend to fill in an individual application would place a financial burden on that applicant. I heard you talk about putting more money into community legal advice, but, with the high number of inquiries about immigration matters in Australia every day, I think that would be very difficult.

Mr Hirsch : The issue is, I guess, twofold. If you are filling in your name, date of birth et cetera a family member can help; that is assistance filling in the form. But to give you advice about how you tell your story if you are claiming protection and what details you need to provide to go through the process in detail you need to have an expert to help you with it. Otherwise, you get forms that just say, 'I don't want to go back to my country,' and that's it. And then you submit it, it is refused and the person has very limited recourse after that. You need someone to help the person explain in more detail why they feel persecution. Family and friends are okay to fill in basic information about the person but not to give them advice; that's where you need a proper migration agent or migration lawyer.

Ms VAMVAKINOU: Among your clients, have there been any instances of people using unregistered migration agents? Is it a big problem? We have just had a discussion around education agents and so-called studying in colleges. Have you come across any use of education agents in the process of filling out refugee and protection visas?

Mr Hirsch : As we are the peak body we don't have any clients directly.

Ms VAMVAKINOU: Your member organisations?

Mr Hirsch : Firstly people are turning to family, friends and other community members because of their desperation. They get told by the department: 'You have 60 days to fill in this form and get it back to us.' They do not understand English. They cannot afford a lawyer. That is what forces them to use family members or community members. That is a huge problem—and it is a growing problem when the government has almost cut migration advice both for people who are seeking asylum in Australia and people who want to bring their family members to Australia. That is one issue. The other issue is that people are promising things they can't deliver, promising to get their family here quickly.

Ms VAMVAKINOU: So there is an exchange of money, a rogue element within that space?

Mr Hirsch : Yes, there are people who are saying they can bring your family here for $20,000 or $30,000. The refugee family here, who wants to sponsor their family, might go and get a payday loan to get that money or something like that out of desperation. Because their family members are in conflict overseas—they are facing war zones and could die any minute—they want to get them out. So this desperation means they will do anything.

Ms VAMVAKINOU: Is that a common thing that you are hearing?

Mr Hirsch : It is common. I do not have statistics on it. I think it would be very hard to get statistics on it. But we hear it quite regularly. We do consultations every year with 50 groups around Australia and it comes up very often and continues to happen. The reason this happens is the lack of professional funding for migration agents.

Mr NEUMANN: You are suggesting that OMARA should have the power to recover funds—from registered migration agents, I presume, who engage in unethical practices?

Mr Hirsch : Yes.

Mr NEUMANN: You are not suggesting that OMARA should have the power to prosecute those rogue people?

Mr Hirsch : I don't think so. Maybe it is. I haven't consulted enough people to find out the process of that, so I haven't thought about that.

Mr NEUMANN: Could you think about that and let us know what you think.

Mr Hirsch : Okay.

Mr NEUMANN: Someone has to initiate sanction, penalty and the like. Someone has to take responsibility for this. We need to know who you think that should be. In the same way, we asked questions of the previous submitter about who is to sanction the institution, the CEO of that institution or whoever has been engaging in that sort of behaviour. So far in this inquiry we seem to have got a lot of evidence about people complaining about a whole range of things, but evidence on the actual guts of where we need to go to clamp down on people like that has not come through this inquiry. It is quite clear. We have a lot of reforms and changes that we can do. The Refugee Council is uniquely positioned with authority to give advice about where we need to go in this area. If you could you consult with your peers, superiors and colleagues and get back to us about that, that would be great. We could close the inquiry now and make some great recommendations to the government, bipartisanship recommendations. But for the rogue stuff we are hearing about in our daily hearings we haven't got the pathway forward.

Mr Hirsch : So you want to know whether we and our members would support the idea of OMARA prosecuting on behalf of individuals?

Mr NEUMANN: Do they? I do not know whether that is the right institution to do so. But where do you do it? Should Home Affairs take a stronger stance? Should this go out to some policing body or something like that? Who should do it? Who should initiate it? With illegal migration, you will see media reports from the Lockyer Valley or the Brisbane Valley where the Fair Work Ombudsman and Immigration and Border Protection officers have rounded up people engaged in agricultural centres. We see that all the time. It is great that the government does that. I think it is fantastic that they clamp down on those dodgy industrial practices. It is good when they do that. But who should sanction that, who should initiate that? How do we clamp down on this? Otherwise, we will have people legitimately complaining.

CHAIR: To follow up on that: if it is immigration, it falls under OMARA; if it is education visas, it falls under the education department. But as we heard today people overseas are giving education advice which is actually immigration advice. In Australia, that is illegal. Should both fall under the one umbrella? Is it too messy having them separate? Is there not enough emphasis being placed on young people coming into Australia on education visas, as we have heard today?

Mr NEUMANN: Following up on the chair's point: we have some good recommendations in the inquiry so far in relation to extra things that OMARA can do in terms of the publication of fees on websites, information and transparency to the public to improve consumer rights et cetera. All that stuff is great reform that we could potentially recommend, but we are talking about the most outrageous and disgraceful breaches and the exploitation of vulnerable people. What should we do? What should we recommend to government?

CHAIR: Thank you for your attendance here today. If the committee has any further questions, they will be put to you in writing. You will be sent a copy of the transcript of evidence and have an opportunity to request corrections to transcription errors. Thank you so much.