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OMARA notice of approved activities
This email was received by an individual today:
I have received a course credit from ANU for the final course of the Graduate Certificate in Australian Migration Law and Practice. This course is about office management, client files, trust accounts, etc, and includes a client interview (just like the PRC).
I have received the course credit on the basis of extensive prior fomal learning, as required by ANU's Credtit Policy. In order to receive the course credit, I had to provide evidence of having attained the learning outcomes and competencies of the course, including my knowledge and ability to conduct client interviews, a skill which I have acquired though my legal traineeship and honed through my pactice as a legal practitioner in Germany and Australia.
Before I had a chance to apply for registration as a migration agent, I received an unsolicited phone call and email from OMARA telling me that because of the course credit for the final course, I had not passed 'the prescribed examination', and that I would not receive a refund of the application fee ($1760) if I applied for registration and my application was rejected.
Under section 289A Migration Act, regulation 5 Migration Agents Regulations and IMMI 12/097, applicants who do not hold an Australian legal practicing cetificate must have
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passed 'a prescibed course', which in turn requires applicants to complete the Graduate Certificate, and
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passed 'a prescribed exam', which in turn requires applicants to satisfy the common assessment items of the Graduate Certificate.
The 4 univesities entrusted with the Graduate Certificate appear to have turned this into a requirement for applicants to pass an invigilated exam at the end of each course, even though there is no pescribed exam at the end of the final course.
OMARA appears to have made up a Notice of Approved Activities published on its websites. According to said Notice,
[f]or the puposes of Regulation 9G(3) and clause 7A of Schedule 1 of the Migration Agents Regulations (Regulations), activities identified in the attached Schedule are approved activities under Regulation 9E(1)(a) of the Regulations [...].
The Schedule attached to the Notice identifies the 4 courses of the Graduate Certificate as approved activities and distinguishes between mandatory and non-mandatory acivities. The final course is purported to be a mandatory activity whereas the first 3 courses are purported to be non-mandatory.
Regulation 9E Migration Agents Regulations authorises the Minister to approve activities in relation to the continuing professional development of registered migration agents.
Regulation 9E Migration Agents Regulations pertains to the Minister's decision to approve activities of continuting professional development and enumerates aspects which he may take into account.
Clause 7A of Schedule 1 Migration Agents Regulations authorises the Minister to declare, by instrument in writing, that specified activities are mandatory for certain registered migration agents [...].
On the other hand, the initial education of migation agents is governed by section 289A Migration Act,
Regulation 5 Migration Agents Regulations and IMMI 12/097.
In my view, OMARA has, without legislative authority, pescribed the final course of the Graduate Certificate as a requirement for registration as a migration agent.
In my view, such a requirement it contrary to the law pertaining to the registration of migration agents which provides, for the sake of innovation, productivity and flexibity (which is also the purpose of ANU's Credit Policy), for the recognition of course credit granted to applicants (as an applicant must have satisfied, in no specific manner, and not have passed, the common assessment items).
OMARA apepars to take the same view when it purports the first 3 courses of the Graduate Certificate to be non-mandatory, suggesting that it would accept course credit granted in relation to these courses but not the final course.
I have written to ANU, OMARA and the Minister about this. I have ask the CEO of OMARA to instruct his officers that there is no requirement for me to have passed 'the prescribed examination'. In response, Mr Ingram has advised me that I appeared unlikely to meet the requirements of 'the prescribed course', that is, the Graduate Certificate, which I must have completed, and which I have completed.
With a view to OMARA's anticipated assessment of my application, I have requested a clear and unambiguous statement from Mr Ingram which I am yet to receive.
I thought it would be useful for the Migration Alliance to know about this should there be any further applicants for registration as a migration agent in my situation out there. Feel free to use the essence of my email, if you agree with my view of the law, but please do not disclose any personal details.
