Australian Immigration Daily News

The role of the Office of the MARA is very important, as it protects the vulnerable. 

1. Subsequent to an agent facing disciplinary proceedings there is a right of review before the Administrative Appeals Tribunal (the Tribunal). 

1. The process of presenting witnesses and obtaining documents in support at the Tribunal includes the following: 

Draft Summons have to be filed.  The Tribunal has the discretion to grant the Summons.  The admissibility of evidence requested is a matter for the Tribunal’s discretion.  The Agent can only hope the evidence requested will be approved.

Currently OMARA has extraordinary power.  For example, a recent decision enables supervision to extend to the provision of alleged “indirect immigration assistance”, that is not directassistance.  This may include, for example, hearsay allegations from persons the former Agent has never met.  The basis of an allegation may be a statement by a third party, not the Complainant about what the Agent has allegedly done.  The whole issue of regulation of “indirect immigration assistance” may open a Pandora’s box. The obvious question is what are the parameters – the limits – of the power examining the behaviour of the Agent with respect to the provision of such alleged “indirect assistance”?

OMARA has also acted upon the basis of complaints made by the Department in circumstance where the purported complainants are unaware as to the existence of any complaint and in circumstance where a person’s matter has not been “finally determined”.

Further, OMARA has acted on behalf of persons who complain on behalf of an alleged victim. On a number of occasions, having located the alleged victim, they have then asserted they were not aware of the complaint or significant particulars provided - or all of the complaint -are incorrect. Such scenario may raise serious issue with respect to the use of client information, issues of privacy and procedures adopted upon hearsay.

As a result of the discovery process at the Tribunal I have identified extraordinary material significantly supportive of the disciplined Agent. For example, this material has been located in Departmental files.

The above raises three issues of concern that may be recognised as follows:

i)       OMARA ascribe significant evidentiary weight to any representation (written, oral, phone call, etc) made by the Agent to them.  Such representation may constitute the evidentiary foundation leading to the Agent’s licence cancellation. 

ii)     It is a matter of grave concern that the conclusions made upon the basis of such representation appear to be, may have been, or were formulated in the absence of consideration of the contents of the Complainant’s Departmental File and other relevant documentary material. 

iii)   It is respectfully submitted that it should be a mandatory procedure for OMARA to examine the Departmental File and provide to the Agent supportive information (known as exculpatory evidence) prior to the formulation of any disciplinary decision.  That is to assert the Departmental File may contain supportive relevant material fact capable of exonerating the Agent.  It may be viewed as manifestly unsatisfactory that such material fact only becomes apparent subsequent to cancellation of the Agent’s licence. 

iv)   The remaining issue is based upon the devastating personal damage (emotional, financial, psychological) of widespread publicity attendant to the publication of disciplinary decisions.  On occasions this has been accompanied by Ministerial Press Release (not covered by Parliamentary Privilege), which has the effect of further insulting and irrevocably destroying the life of the cancelled Agent.  It is a matter of grave concern that such publications can be made in the absence of any hearing and prior to the commencement of any process of discovery.  For example, where the Department’s files possibly (dependant upon Tribunal discretion) can be obtained and witness and alleged complaints can be investigated.  I have used information discovered in the Departmental file in support of an Agent (post cancellation of his licence). 

v)     What may be a matter of grave concern is that as a result of subsequent investigation at the Tribunal it may be that the character of the published cancellation decision and Ministerial Press Release is capable of being challenged by virtue of material OMARA and the Department had access to prior to the commencement of any investigation.