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The good that Registered Migration Agents do
Exploring the good that Australian Registered Migration Agents do.
The Registered Migration Agent profession is an important profession.
It is often asked "Does Australia really need another Registered Migration Agent?" or "Why do we need so many Registered Migration Agents?" or "And why do we have an increase in the number of Registered Migration Agents Annually?"
The picture of Registered Migration Agents (RMAs) as Tribunal and Ministerial Intervention Unit (MIU) gladiators fails to capture the way most RMAs work.
Registered Migration Agents are needed because case officers exist. You may ask what this means.
Dean Robert Clark of Harvard Law School has aptly called this type of concept 'normative ordering'. RMAs, like other intermediaries between individuals and the state, help protect visa applicants from the danger of tyranny of the majority (DIBP). RMAs create a form of public responsiblity that preserves democracy and diversity. What does this mean?
Today many Australian visa applicants are distrustful of the Australian Department of Immigration and Border Protection (DIBP). There is little wonder why this is the case when it, or a part of it, is set to change it's name on 1 July 2015 to the 'Australian Border Force'. People wishing to migrate to Australia are suspicious about big government, DIBP bureauocracy and the sheer number of public servants held within it.
The DIBP is a heavily centralised government control. There is the interesting flaw. The DIBP is only the first level of 'control' of Australian borders. That control is, in reality, quite feeble. The DIBP would like the public to think that they are the first and the last gate and that nobody gets into Australia but by them. This DIBP-created perception is nothing short of a complete farce. The reality is that the DIBP component is the weakest lnk in the system. It is simply the first line of visa application. It is where public servants with very little training assess visa applications from non-citizens, day in and day out. There are many levels above the DIBP.
Let's have a look at the facts. DIBP case officers (public servants) don't go through the same complex training as RMAs. DIBP officers are trained occasionally in an 'offline' situation, but normally they are trained as they go along on the job. DIBP case officers do not undergo a university course like RMAs need to. DIBP case officers do not undergo annual complex Continuing Professional Development (CPD) training for re-registration like a RMA must do every year. This means that in comparison to an RMA, a DIBP officer is very under-trained, under-experienced and under-educated. This is not their fault and this is not a put-down or an attempt to belittle DIBP officers, but is a true and accurate comparison between RMAs and DIBP officers. There are some great officers within the DIBP ranks and great sectional managers, but these people are few and far between.
The question needs to be asked, "If put to the test, how many case officers would pass the sound knowledge test?"
All one needs to look to is the percentage of visa refusals based on incorrect, incomplete or poor decision making by DIBP officers, which then get referred back to DIBP from the Tribunals. When an Australian visa applicant, (generally with the help of a qualified RMA) appeals DIBP's decision to cancel or refuse their visa, the referral rate back to the DIBP from the MRT-RRT has traditionally be very high.
As an experienced RMA, I can say with authority that DIBP officers and their supervisors do not take too much notice and/or don't really care about the number of overturned cases based on poor decisions made on the visa applications. It is my experience that DIBP officers believe it is merely a normal course of action that Tribunals regularly overturn DIBP decisions.
Feedback to the DIBP officers occurs if there is a decision made by judicial review, which is almost always done with the assistance of a Registered Migration Agent. In effect, Registered Migration Agents agitate for the rights of their Australian visa applicant clients. RMAs, by appealing for their immigration clients, ask the Tribunals and the Australian courts to exercise immigration law correctly. By listening to and heeding the advice of Registered Migration Agents, visa applicants can, in effect, regulate the DIBP.
Visa applicants and their RMAs can, and have totally bulldozed DIBP decisions. They do this by having the DIBP decisions heard in Tribunals and Courts which sit above the DIBP, where suitably qualified and competent persons can assess the merits of the case. It is through this process that cases refused by DIBP officers are then remitted back to the DIBP. Then the DIBP usually overturn their original decision and it then becomes a visa approval.
However in the High Court case of Berenguel, even when the High Court found against the DIBP and their interpretation of the law concerning the timing of English language tests, DIBP continued bizarrely that the High Court had got it wrong. When RMAs appeal matters for their clients through MIU and the Federal Court, precendents are set and DIBP must conform.
For the unwitting public who think that the DIBP are a good source of information regarding visa applications, think again. The information on the DIBP website is paraphrased, based largely on 'policy' rather than the actual 'law' and is not complete or 100% correct. The only correct information available can be found in a Professional Library. A professional library contains the Migration Act, Migration Regulations and Schedules 1-8. It also contains the Gazette Notices and the Procedures Advice Manuals. RMAs all have a professional library.
If you are a vulnerable consumer and are considering submitting your own visa application then please, do not let anyone, including me, stop you. I don't take on clients any more and haven't done for a long time now so this is not an attempt by me to attract new clients. This is plain speaking about the reality of the Australian Immigration system. My suggestions to anyone attempting to lodge an Australian visa application are as follows:
1/ The DIBP website is a simplified and paraphrased version of reality. It's content misses important and integral information and does not include the actual law.
2/ The DIBP is not able to provide immigration advice, and case officers within the DIBP are the last people I would ask for expert Australian immigration law advice. After all, case officers have to use a 'policy' manual which interprets the law for them, dumbing it down so that they can understand what the law is trying to say. DIBP will say that the policy is there so that officers can take a consistent position where the law is 'unclear'. In short, the other way of looking at this is that DIBP officers are not skilled enough to read the legislation and interpret it using their own brains based on the case in front of them. This is why a RMA is important. We use the legislation and we force the DIBP officers to use it. We don't put up with 'policy speak'. If case officers can't cope then we simply ask that the matter be elevated to their manager until we finally get to someone who knows how to read the law. Sometimes even the Managers can't do this and this is when cases need to be reviewed outside the DIBP.
3/ Listen to your RMA. They are on your side. The DIBP is not there to help visa applicants get an approval. The DIBP is not your friend. The DIBP can be 'friendly' in their manner but they don't have an interest in the outcome. They are so neutral towards visa applicants that their apathy and lack of competence can lead to catastrophic results for visa applicants with no consequences for the case officer.
4/ Unregistered Migration Agents (people masquerading as RMAs) aren't trained or qualified but pretend to have contacts in the DIBP. Imagine how shocking that advice would be. The blind leading the blind. Always speak to a RMA and always ask them for their Migration Agent Registration Number. Always look them up on the Migration Agents Registration Authority website.
5/ If your DIBP case officer starts behaving in a contrary manner whilst assessing your visa application and you are self-represented then contact a RMA asap. You might have a malicious case officer, a bully or someone who is just plain incompetent. As a visa applicant you don't need any of those features in a case officer.
I have spoken to an Accredited Specialist Immigration Lawyer with over 25 years experience in this field.
He said:
"If DIBP was half-way competent and was capable of making a reasonable decision then I would have gone out of business 25 years ago. The fact is I have made my career off the back of DIBP inconsistency, intransigence and incompetence'.
Comments
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Friday, 30 May 2014excellence, Liana! I am going to print and put it in display for clients to see/read while waiting.
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Thursday, 05 June 2014
Regarding suggestion #2:
Actually the policy ie PAM is there for both RMA's and DIBP officers to interpret the legislation. Not just DIBP officers.
I can guarantee that most if not all RMA's read PAM to get an understanding of what the legislation means. To any RMA who doesn't, how did you determine what genuine, compassionate, compelling, exceptional circumstances means? If you don't read PAM, then I would be very concerned as to how you advise your clients on those tricky provisions.
While you may not accord credit to any DIBP officer for their knowledge, it is unfair to suggest that all DIBP officers need a dumbed down document, just as it is unfair that some DIBP officers may think that all RMA's rip their clients off or don't know anything. -
Thursday, 05 June 2014
Colin I agree with you in part. Some RMAs don't ever use the PAMs because the PAMs are simply a version of the legislation and not the actual legislation. Whilst some RMAs read it, it was designed so that DIBP officers can interpret the legislation in the way it was intended. Many RMAs, especially lawyers such as Chris Levingston, don't really care what the PAMs have to say because they interpret the law exactly how it suits them and use words in the legislation to suit. Sometimes the PAM is not reflective of the legsilation in a true sense so it should be ignored, and the agent has to be willing to take the matter up to a higher level such as MRT-RRT etc to get the law exercised by a person who doesn't restrict themselves by policy definitions. My advice, don't get stuck on the policy as it restricts your client's options. Policy is a single-minded view of the law.
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Thursday, 05 June 2014
Well why wouldn't someone look in PAM, if not just to understand how a case officer is going to assess the application? It borders on negligence to not look at PAM if we need to address discretionary or obscure criteria.
Having said that, legislation always trumps policy, and I agree that if you can show that the case officer has not properly considered the full meaning of a legislative provision, then you will win. But I think the article casts an awful light on all DIBP officers as incompetent - it is simply how the department wants its employees to interpret the law.
if Chris Levingston or anyone else can show me published cases where obscure terms like genuine, compassionate, compelling, exceptional circumstances, were interpreted, or teach how to address discretionary criteria without ever looking at the PAM, then I'd definitely pay for the CPD if such a course was run! -
Thursday, 05 June 2014
Colin, it also borders on negligence to look at PAM and make a decision based on it, and not have the guts to get the application refused based on the TRUTH instead of some twisted version of it based on DIBP's reality. Can you see how it works both ways? Honestly I do think PAM is a dumbed version of law. I agree with you that a course in that discretionary criteria would be a good idea. I am going to write to LTA and ask them to run something. I know Chris thinks PAM is restrictive too. He said it in a CPD once. I agree with Colin 50%
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Saturday, 07 June 2014
The constant assertion that any Commonwealth Officer employed by DIBP is an incompetent buffoon that needs to be spoon fed legislation and decision making skills is getting very unhelpful and tiresome. Some of the comments I have read on this forum have bordered on slander/libel, though the posters have always been careful enough to leave the target unidentifiable. I will admit that I have previously been employed by DIBP so forgive me if this post seems defensive.
What I will not accept though is this constant allegation that most, if not all, of the 10,000 odd employees in DIBP are intellectually disabled dullards. Like any bureaucracy (similar to private industry) there are dunce employees (and that is regrettable and unfortunate), but for the most part they are dedicated, experienced and intelligent people that strive to serve the public to the best of their ability. To assert that they are in some way intellectually inferior to Registered Migration Agents (RMA) is not only factually incorrect but fundamentally (understandably in some cases) hostile.
I read this blog for the sole fact that I can identify that most of the people that post are respectable RMA’s who have a fantastic general (and in most cases probably area specific) knowledge of the Migration Act. The legal reasoning and interpretation that takes place within areas of DIBP every day is similarly amazing. I can assure you it is a far cry from the circus of unskilled, power hungry lunatics that you assume form the basis of DIBP’s general decision making staff.
I will conclude by stating that from my experience DIBP employees strive to interact with competent, qualified and realistic RMA’s. I understand that a lot of you have probably dealt with presumptive, ill-informed (and to be frank incompetent) DIBP officers but they should not skew you view of the Department or its staff in general. Similarly I can see how much you and your respected colleagues despise being associated with the actions of a minority of RMA’s (or non-registered MA’s) whose entire goal is to defraud the migration program (and usually their client as well). In my mind the integrity of the Migration Act is primarily upheld through the cooperative interaction between honest RMA’s and competent DIBP officers (both of whom form the majority in their respective areas). -
Saturday, 07 June 2014
Randy Marsh it's good to finally see DIBP participating and engaging on here. What you forgot to mention is that you not only used to work for the DIBP but still do. We as agents know other agents who used to work at the DIBP. We know from first hand conversation the contempt and hatred DIBP have for agents. This is because agents, using the full weight of the law, don't allow case officers to make lazy, biased or plain wrong decisions.
You are correct in your article above. Not all DIBP officers are inferior to agents. The fact and reality though is that agents have proven and quantifiable sound knowledge in Migration law and DIBP officers do not. The standards for employment at DIBP are low. Entry requirements are low. Training is done by other persons who have no proven sound knowledge and there is no testing of real knowledge against any alternative standard. Imagine an exam in immigration law where a group of 10 agents v 10 DIBP officers. The results would be a bloodshed. We as agents experience first- hand the poor level of skill at DIBP.
Liana does say that there are great officers and great sectional managers in DIBP. She's correct. There are. The issue here is that DIBP don't like being exposed. The era of controlling the message is over. Digital media and social enterprises like migration alliance hold government accountable. No longer can government assert one thing and do another. It's just as open to public scrutiny and judgement as any other business.
As for this being unhelpful, as you say, it's only unhelpful for the DIBP and it's public relations. The public deserve to know alternative views on the DIBP. It's up to the DIBP to manage it's profile. That includes managing relationships. I can tell that the DIBP put very little time and effort truly engaging with migration alliance because if it did, and if what you say is correct about DIBP, then surely these hostile articles would not be occurring.
Liana tells the truth from the perspective of most agents. It might not be digestible to the DIBP or it's former employees like you, but it's still true. DIBP have to be told how it really is. They don't, in my opinion, listen or care to fix problems readily. Nothing has changed after 20 years of my complaints about the same stuff. DIBP have seen itself as invincible.
The power and control the DIBP had over it's brand and message is dissipating.
DIBP need to take some responsibility for the hostility. Liana left out a lot of things other agents really think. DIBP and their lists A and B on agents is a good example.
Finally DIBP are regulating agents, disciplining them and sanctioning them. That doesn't create a great trust. It's a conflict of interest. It causes hostility.
Finally please check libel and slander law. Nothing on here is remotely close to libel or slander. Having an opinion about the DIBP isn't wrong or defamatory. It's called free speech. Something a previous communications branch officer LaLegale was sacked for at DIBP. We sit outside the DIBP and in private practice. This gives us real world perspective.
If you consider Liana's article is hostile then I can tell you the reality is much worse. I think she held back. It's a pity things are this way but reality intervenes.
Other former DIBP officers aren't as positive about their experiences working at DIBP as you. You do seem intelligent. This type of mentality is rare at DIBP which is probably why you left.
Again, thanks. -
Saturday, 07 June 2014"If Chris Levingston or anyone else can show me published cases where obscure terms like genuine, compassionate, compelling, exceptional circumstances, were interpreted, or teach how to address discretionary criteria without ever looking at the PAM, then I'd definitely pay for the CPD if such a course was run!"
Colin check out Austlii Federal Court decisions and do a boolean search using the terms you want.
Policy is simply a guide to certain terminology which is not defined in the statutory scheme. The purpose of the policy is to in effect create consistency in decision making by having an agreed position as to what stance DIBP will take on the matter. The inherent problem in this approach, apart from the risk of the policy being ultra vires the statutory scheme is that it does not encompass all situations.
Let me give an example, Condition 8503 'no further stay' is construed by policy as requiring a material change in circumstances post arrival which would warrant the waiver ( I paraphrase) the requirement for significant hardship. Policy provides examples of such hardship..that term is defined in settled cases.(Austlii) The problem arises when , for example, section 48 permits an applicant who does not hold a substantive visa to apply for a spouse Concessional visa onshore. Clearly that entitlement arises as an expression of the will of parliament through section 48 and an applicant with condition 8503 post a primary decision and refusal etc simply cannot avail themselves of the intended "right' conferred by section 48 without first seeking a waiver. The policy is applied over the top of the factual matrix and the applicant who says " am now married" is told by the policy that is not a circumstance beyond your control, neither is the fact of the spouse being pregnant. This policy constrains the intention of parliament that such persons be allowed to apply by the application of a rule or policy without regard to the merits of the case. Thus policy, in respect of condition 8503 constrains section 48 and the intention of parliament, in, i believe, in a completely unintended way and contrary to the ICCPR. Case officers are not rewarded for exercising sound judgement they are pulled into line by the 'policy'.
I hope you find this example helpful.
See you at CPD!
If that doesn't suit just send me an email and I will be glad to give you some advice. I am always to help. -
Tuesday, 17 June 2014
I will give you a hundred likes.
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Monday, 23 June 2014
Thank you It's often asked "Does Australia really need another Registered Migration Agent? It is really truth. http://www.newinki.com/emigrate-australia-need-know/
Immigration blog
Well said!