Christopher Levingston Blog

Agents have come to me reporting emails from the OMARA that look something like this:

Dear XXXXXXX (agent)

The Office of the MARA is monitoring the conduct of registered migration agents to verify agents' compliance with the Code of Conduct.

The Migration Agents Registration Authority is authorised under section 316 (b) of the Act to "... monitor the conduct of registered migration agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance"  and section 316 (g) of the Act to "... o monitor the adequacy of any Code of Conduct".

The objectives of the Monitoring program in the Office of the Migration Agents Registration Authority are:

• To assess RMA compliance with legislative requirements and the implementation and adequacy of the Code;
• To identify systemic shortcomings in the industry with a view to improving overall industry compliance with the Code.

The Authority would like to visit your premises for the purpose of a monitoring site visit.  Please note that you have been randomly selected as a NSW based migration agent.

The monitoring visit will include questions about your office, client and file management practices and an audit of one of your client files. To assist the client file audit, please provide the file for your client, XXXX XX (name removed to protect client ID), including the client ledger, client account, receipts and invoices issued.

The following are examples of some of the questions we are likely to ask:

• Can you demonstrate that your client files are kept in a lockable cabinet?
• Do you ordinarily charge on a per hour or per service basis?
• Do you have procedures for ensuring that employees are familiar with the Code of Conduct?

 Our visit will also provide an opportunity for you to provide feedback or guidance on the Code of Conduct requirements and the operations of the Office of the MARA, including the online registration process and communications from the Authority.

Monitoring visits are scheduled for Monday 24 November 2014 to Wednesday 26 November 2014 and Monday 1 December 2014 to Wednesday 3 December 2014. Visits will be scheduled for the morning and afternoon of those days.  It is expected that visits may take between 1.5 to 2 hours.

Could you please advise the Authority by Wednesday 19 November 2014, by return email, if you are able to participate in the monitoring exercise.  You should nominate a preferred time and date for the visit.

If you have any further questions the monitoring site visits, I can be contacted on the office telephone number below.

Yours sincerely,

XXXX  XXXXX

Assistant Director

Registration and Professional Development

Office of the Migration Agents Registration Authority

Ph   (02) 9078 XXXX

Fax (02) 9078 3591

My suggested response to the OMARA when they write to request a 'random audit':

Dear Mr / Ms XXXXXXXXX

I refer to your email to the effect of my having been selected for a random “monitoring site visit”.

I note that you have referred to  section 316 of the migration Act 1958.

The relevant section is as follows:

MIGRATION ACT 1958 - SECT 316

Functions of Migration Agents Registration Authority

             (1)  The functions of the Migration Agents Registration Authority are:

                     (a)  to deal with registration applications in accordance with this Part; and

                     (b)  to monitor the conduct of registered migration agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance; and

                     (c)  to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and

                     (d)  to take appropriate disciplinary action against registered migration agents or former registered migration agents; and

                     (e)  to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional        

                           associations for possible disciplinary action; and

                      (f)  to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and

                     (g)  to monitor the adequacy of any Code of Conduct; and

                     (h)  such other functions as are conferred on the Authority by this Part.

          (1A)  In performing its function under paragraph (1)(c), the Authority may start, or complete, an investigation of a complaint about a person at a time when he or she is no longer a registered migration agent.

          (1B)  However, the Authority can investigate a complaint about a former registered migration agent only if the complaint is received within 12 months after he or she ceased to be a registered migration agent.

             (2)  So long as the Institute is appointed under section 315, the Migration Agents Registration Authority also has the function of advising the Minister on the adequacy of any Code of Conduct.

You have specifically referred to section 316 (b) as the relevant statutory authority for a “monitoring site visit”.

With respect, I do not agree that section 316(b) permits the authority to randomly select RMA s and or Solicitors for  a “monitoring site visit”

You have stated that the purpose of the visit is to:

“The monitoring visit will include questions about your office, client and file management practices and an audit of one of your client files. To assist the client file audit, please provide the file for your client, XXXX XXXXXX, including the client ledger, client account, receipts and invoices issued.

The following are examples of some of the questions we are likely to ask:

• Can you demonstrate that your client files are kept in a lockable cabinet?
• Do you ordinarily charge on a per hour or per service basis?
• Do you have procedures for ensuring that employees are familiar with the Code of Conduct?

Our visit will also provide an opportunity for you to provide feedback or guidance on the Code of Conduct requirements and the operations of the Office of the MARA, including the online registration process and communications from the Authority.”

I have specific concerns that the Authority has specified a client XXXX  XXXX as the “random” client.

I am happy to respond to any enquiry form the Authority concerning my general compliance with the code but I can indicate now that I do not have a client called XXXXX XXXXX and under the circumstances I have a duty to maintain the confidentiality of my client records unless the authority is formally exercising powers of compulsion as provided for under the Code of Conduct.

This duty arises both in my capacity as a Solicitor and under the Code of Conduct as an RMA.

The fact of their being to all intents and purposes no independence between the OMARA and DIBP I decline the invitation to participate in this activity.

Yours Sincerely

XXXXX XXXXXX (your name)

Any agents who would like me to send them a draft for use in their own personal situation please contact me and I will be happy to help.