MIA’s Regulator Role About to End
It looks like the Migration Institute of Australia will lose its role as the board of the Migration Agents Registration Authority. The Final Report of the 2007–08 Review of Statutory Self-Regulation of the Migration Advice Profession, dated May 2008 concludes that self-regulation of the industry should end. It is understood the Minister for Immigration & Citizenship has decided that the MIA board will no longer also be the board of MARA.
The report’s full text is found at: http://www.immi.gov.au/gateways/agents/pdf/2007-08-migration-advice-profession-review-report.pdf
Here are the reports key findings:
• there was overwhelming opposition to the profession moving to self-regulation.
• the current arrangement whereby the MIA operates the MARA has created perceived andpotential conflicts of interest resulting in a lack of consumer confidence, and the governmentshould consider establishing a regulatory body separate from the MIA.
• there is dissatisfaction amongst stakeholders regarding the handling of complaints againstmigration agents. The Review has found that the regulatory body needs additional powers and needs to work in closer cooperation with the department and other bodies such as the Law Council of Australia (LCA) and the Australian Competition & Consumer Commission (ACCC) in order to address these issues.
• there needs to be significant changes made to the entry requirements in order to improve professional standards. Recommended changes include: the Graduate Certificate be replaced by a Graduate Diploma; the English language requirements be increased and newly qualified migration agents be required to undertake a year of supervised practice.
• legislation relating to migration agents needs to be substantially revised to remove confusion.
• to minimise consumer confusion, lawyer agents should continue to be included in the regulatoryscheme, although revisions to the regulatory scheme would provide further concessions to lawyer agents.
• the Continuing Professional Development (CPD) requirements need to be simplified and streamlined – especially for experienced migration agents with good track records.
• priority processing should be provided to decision ready applications – whether they are submitted by a migration agent or an applicant directly.
The report was actually written by DIAC but with the assistance and ‘guidance of an External Reference Group (ERG). Here is how the report describes the process of the review:
Like the previous 3 reviews into the regulatory framework, the current Review was conducted by the department under the guidance of an ERG.The ERG was chaired by the Hon John Hodges. Mr Hodges, a former Federal Minister for Immigration and Ethnic Affairs. Other members of the ERG were:
• Mr Glenn Ferguson, a Queensland solicitor & registered migration agent, who is a memberof the executive of the Law Council of Australia (LCA), current President of the ImmigrationLawyers Association of Australasia (ILAA) & a former President of the Qld Law Society
• Ms Helen Friedmann, a registered migration agent with her own consultancy & a former departmental officer
• Mr Len Holt, a registered migration agent, former Queensland State President of the MIA.
Here are the full recommendations:
Chapter 4 – Role of the MIA as industry regulator1. That the Professional Standards & Registration Committee (PSRC) or any future body charged with decision making regarding professional standards, registration and the sanctioning of migration agents comprise representation across a range of interests including the MIA, LCA (Law Council), community representation and the Commonwealth.
2. That the Board of the new regulatory body should be appointed by the Minister and consist of no more than 7 members. The Board should comprise a diverse range of representatives including:
• a consumer advocate
• a community representative
• a nominee from the LCA
• a nominee from the MIA.
3. That the government consider addressing any remaining concerns regarding potential orperceived conflicts of interest by establishing the new Board in an independent regulatory body separate from the MIA.Chapter 5 – The MARA’s performance as the industry regulator
4. That criteria on which the regulatory body will decide to investigate complaints be made publicly available.
5. That all relevant complainants be provided with explanations of why the regulatory body decides not to formally investigate their complaint when a decision of ‘No further action’ is made.
6. That the regulatory body disclose relevant details of complaints which are being investigated or being considered for investigation to the migration agent in question, as long as such disclosure does not compromise the investigative process.
7. That quality assurance procedures be implemented to ensure consistency in the complaints handling processes of the regulatory body.
8. That an easily identifiable channel for making a complaint against the way the regulatory body handles investigations be developed.
9. That migration agents be made aware of relevant aspects of relevant complaints against them that are not further investigated at that time and requested to take appropriate action to avoid future complaints for similar issues.
10. That options be developed to facilitate the better integration and coordination of the regulatory body and departmental complaints handling functions.
11. That the regulatory body work in partnership with relevant bodies such as the Office of the Legal Services Commissioner (OLSC) & the Australian Competition & Consumer Commission(ACCC) in order to progress the investigation of complaints and to ensure that the results of complaints are known by relevant regulators and that these organisations also take appropriate action.
12. That the regulator review and appropriately revise any existing training program for complaints handling staff or if such a program is not in existence, that it develop a new, appropriately robust training program for these staff.
13. That as soon as practicable, the Graduate Certificate as the knowledge requirement for entry to the profession be replaced with a Graduate Diploma level course.
14. That the regulatory body be empowered to require migration agents who are subject to repeated complaints about their knowledge and those sanctioned for a lack of sound knowledge to undertake some or all of the units that make up the prescribed course prior to sanctions being lifted or being re-registered.
15. That a system of registration be implemented involving a year of supervised practice for newlyqualified migration agents.
16. That new and re-registering migration agents be required to prove that they have Englishlanguage proficiency of at least International English Language Testing System (IELTS) 7.
17. That in order to be eligible for repeat registration, migration agents be required to prove that they meet conditions as determined by the regulatory body.
18. That the regulatory body be able to impose further conditions on migration agents applying for repeat registration after being sanctioned. Such conditions could include that the agent:
• operates under the supervision of another migration agent
• is restricted to a particular type of work
• undertakes specific training.
19. That an independent review of the MARA’s communications activities be undertaken and that a comprehensive communications strategy be developed and published electronically. A separate and distinct budget should be allocated for the implementation of the strategy and the expenditure of this budget should be similarly reported separately.
20. That a fidelity fund not be established.
21. That if practicable, migration agents ensure that clients pay Visa Application Charges (VACs) directly to the department.
22. That if it is not practicable for VACs to be paid by clients directly to the department, that migration agents hold funds in trust accounts that are managed according to trust accounting standards.
23. That the regulatory body be granted additional emergency powers including, but not limited to, the power to:
• suspend a migration agent
• retrieve client files
• appoint an administrator
• seek a court order to appoint a receiver.
24. That in developing protocols for the use of emergency powers, the following should be considered to ensure there are suitable ‘checks and balances on such powers:
• the tribunals and courts should be consulted
• the regulatory body to be indemnified in case tribunals later determine powers should not have been exercised
• an appropriate governance framework be developed to ensure that the decision making process regarding the invoking of emergency powers is impartial and transparent.
25. That the regulatory body be more responsible for legal matters pertaining to its operations. Chapter 6 – The regulatory framework.
26. That Part 3 of the Act be simplified with details moved to Regulations where appropriate. In simplifying this legislation, where practicable, previously agreed changes should be effected.
27. That the definition of immigration assistance be amended to remove references to court related work and to ensure that the definition does not lead to the practising of law by migration agentswho are not qualified to do so.
28. That the definition of immigration assistance be amended to:
• ensure that it applies to immigration assistance provided to all clients, not just visa applicants or cancellation review applicants
• clarify the difference between immigration assistance and migration advice
• define the context in which the client/advisor relationship arises.
29. That consideration be given to enable certain bodies to provide immigration assistance without this assistance being provided by registered migration agents. Decisions on exemptions to be made at ministerial level based on exceptional circumstances.
30. That to help address the issue of unregistered agents acting as authorised recipients, strategies be developed to increase the availability of non-commercial migration agents in the communitysector.
31. That the department’s Form 956 Appointment of a migration agent or exempt agent or other authorised recipient be revised to clearly distinguish between the appointment of a migrationagent and an authorised recipient, to be more client friendly and to include both client anddepartmental obligations.
32. That with significant input from the profession, the Code should be re-written in simple English,strengthened, and ethical issues dealt with separately. The Code should remain in Regulations.
33. That in revising the Code, consideration be given to including:
• clarification of the role of supervising migration agents
• the adoption of trust accounting regulations in relation to the management of client accounts and referral to a comprehensive inspection scheme
• acknowledgement of the role of Regional Certifying Bodies
• clear conflict of interest guidelines regarding conflicts that may arise from a migration agent’sconnection with a recruitment or training organisation
• a comprehensive definitions & interpretation section
• provisions for migration agents working within different business structures
• a set of rules that must be satisfied before a change can be made and a procedure for changing the Code.
34. That the penalty provisions under section 306 be changed to exempt inactive migration agentsfrom the penalty when non-compliance is beyond the agent’s control, for example when the agent is incapacitated.
35. That consideration be given to the deletion of Division 5 from the Act except for providing for the need for a registered migration agent to conduct himself or herself in accordance with the Code of Conduct. Details previously provided in Division 5 could then be covered in Regulations.
36. That the definition of ‘client’ in Regulations be amended to specify the context in which immigration assistance is provided including defining that an individual officially becomes a ‘client’ when a contract for services is signed.
37. That further guidance be provided on the definition of ‘fit and proper person’ in s. 290.
38. That amendments be made to ensure that provisions apply to all businesses (not justindividuals) that are involved in the provision of immigration assistance.
39. That legislation be revised mindful of relevant standards established in ILO Conventions 181 (Private Employment Agencies) and 143 (Migrant Workers – Supplementary provisions) that areconsistent with government policy.Chapter 7 – Costs and benefits of the scheme.
40. That the department and the regulatory body continue to make information available to industry associations, labour hire organisations and employers (including small businesses) on the regulatory framework, service charters, fees, and the complaints mechanism.
41. That providers of the Graduate Certificate of Migration Law and Practice, and the MIA as the industry association, investigate the possibility of providing a number of scholarships to studentswho make a commitment to practice in the non-commercial sector.
42. That the providers of CPD activities be encouraged to offer migration agents operating in the non-commercial sector greater discounts on CPD activity fees.
43. That the department consider providing non-commercial migration agents with further discounts on access to LEGENDcom.
44. That consideration be given to the CPD scheme to provide additional incentives for experienced migration agents to provide pro-bono services.
45. That the department consider extending the Immigration Advice and Application Assistance Scheme (IAAAS) to provide funding for advice and application assistance both for onshore and offshore visa applications, including to proposers of offshore humanitarian visas. Chapter 8 – Inclusion of lawyer agents in the regulatory scheme.
46. That lawyer agents continue to be included in a revised regulatory scheme.
47. That complaints about lawyer agents be referred to relevant Legal Services Commission/Ombudsman for investigation. Resulting decisions from investigations to be subject to review by the migration advice regulator. As the requirement of the migration advice regulator to allocate resources to address complaints about lawyer agents would decrease, that registration fees payable by lawyer agents be decreased as appropriate.
48. That the public register of migration agents provide for all migration agents to have relevant qualifications listed.Chapter 9 – Continuing Professional Development (CPD).
49. That the CPD system be modified to provide more flexibility regarding the activities undertaken.
50. That the process of approving CPD activities be revised to ensure that more flexibility is provided in the CPD activities that can be undertaken and to address concerns about the onerous nature of the current approval process.
51. That migration agents with over 3 years experience, who have good track records (as determined by the regulator) be able to undertake CPD on an honour basis.
52. That CPD activities be developed that involve greater interaction between departmental staff and migration agents; for example, the provision of presentations by departmental staff to migration agents and vice versa. Chapter 10 – Priority processing.
53. That a priority processing scheme be implemented that awards priority to complete, decision ready applications, regardless of who lodges them.
54. That consideration be given to the establishment of a stakeholder committee to identify strategies to further streamline procedures by which departmental offices receive applications and documents from migration agents and provide services to them.
55. Pending consideration of more cost effective options to encourage high quality decision-ready applications, that a rating scheme not be implemented. Chapter 11 – Capacity of the profession to move to self regulation.
56. That the migration advice profession not move to self-regulation.
57. That statutory self-regulation be discontinued. There is no formal response from the Minister at this stage.