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Immigration Daily News Department Tolerating Huge Loophole for Overseas Migration AdvisersAustralian Immigration Daily News
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Department Tolerating Huge Loophole for Overseas Migration Advisers
The Migration Alliance has received a very disturbing report from a Registered Migration Agent concerning conduct by “offshore” persons who are not Registered Migration Agents involving communications with Departmental officers concerning visa applications.
As all Registered Migration Agents will be very well aware, section 280 of the Migration Act makes it a criminal offence, subject to a penalty of 80 penalty units (currently $180), or $14,400 for a person who is not a RMA to give immigration assistance. And section 281 further provides that a person who is not a RMA may not ask for or receive any fee or other reward for giving migration assistance, and that doing so may result in a sentence of imprisonment of 10 years.
Perhaps less familiar is section 282, which further provides that a person who is not a RMA must also not ask for or receive a fee or other reward for making “immigration representations”. Likewise, such conduct is subject to a penalty of 10 years in prison.
Subsection 282(4) provides that a person makes “immigration representations” if he or she either makes representations, or otherwise communicates with the Minister, a member of the Minister’s staff, or with the Department about a range of migration matters.
Among other things, section 282(4) prohibits a person who is not an RM from communicating with the Department on behalf of a visa applicant concerning a visa application; on behalf of a person seeking review of a decision to cancel a visa; on behalf of a person who is seeking to nominate or sponsor a prospective visa applicant; or on behalf of a person seeking Ministerial Intervention.
Notwithstanding these very clear and express prohibitions, our colleague reports to us that the Department apparently tolerates and condones communications between Department officers and overseas persons who are not RMAs concerning visa applications and other migration matters.
Apparently, the Department takes the view that the prohibitions in the Migration Act cannot be enforced “extra-territorially” against persons who are overseas.
Indeed, Department policy, PAM3, goes so far as to state as follows:
“Regulating the industry cannot be enforced outside Australia because the scheme is underpinned by criminal sanctions and it would be contrary to the principles of international law for the Authority to coercively investigate the actions taken overseas by foreign agents.
Consequently, both in and outside Australia, the department must deal with any third party who may provide documents to the department on behalf of clients, and/or that the client nominates as their authorised recipient. This includes migration agents not registered with the Authority.”
As our colleague has correctly pointed out, the Criminal Code Act 1995 provides that when “electronic communications” (such as emails) are sent to Australia from overseas, that conduct is taken to occur “partly in Australia”. So it would appear that it is at least arguable that the prohibitions against persons who are not RMAs from communicating with the Department would indeed extend to and apply against persons who are overseas.
It does seem that the Department’s policy is creating a gigantic loophole in the regulatory framework, large enough to drive a monster truck through (or a freight train, ocean liner, rocket ship, asteroid or other celestial body, take your pick!)
In other words, under Department policy as it now stands, the Department apparently has no problem with people setting themselves up offshore and offering immigration assistance for fee or reward, and apparently no problem with allowing Department officers to engage in ongoing communication with such persons concerning migration matters.
Notwithstanding that unlike RMAs, such persons may have no knowledge whatsoever of Australia’s migration legislation, may have inadequate proficiency in English, and have not been required to provide background information to establish that they are fit and proper persons and persons of integrity.
Does this policy by the Department, which basically amounts to opening the door to possibly widespread circumvention of the scheme for regulation of persons providing immigration assistance not appear to be literally insane?
Is it not totally unfair to RMAs whose practices are based in Australia and who are subject to strict regulation and oversight?
Does it not place unsuspecting visa applicants at risk, not only of losing significant visa application fees as a consequence of unregistered overseas persons not sufficiently understanding the migration legislation, but also at risk of being subject to exclusion periods as a result of PIC 4020 problems?
What do you think? Shouldn’t the Department be rethinking this issue? Yesterday?
Comments
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Wednesday, 02 November 2016That's a very interesting observation. While I agree with the menaces related to the practice of representing applicants overseas by persons with a limited understanding of the immigration legislation and poor English proficiency, there is a practical problem with disallowing overseas representations by the DIBP.
Despite, many such persons not being RMAs many of them have established their expertise with scores of successful applications as compared to some professionals who may not have even handled a sizeable number of applications or obtained positive outcomes for their client despite being RMAs.
More importantly, it would make sound sense for the DIBP to subject overseas persons to similar stringent criteria [as in the case with the RMAs] if the DIBP frames a set of criteria for overseas persons to attain a status equivalent to that of an RMA. Since overseas migration agents cannot be eligible to become an RMA owing to their not being Australia residents. Clearly, it would not be fair to presume that only Australian residents should have the privilege of representing applicants with the DIBP. Unfortunately, an Australian citizenship or permanent residence, being a pre-requisite for becoming an RMA cannot possibly allow an overseas professional to be eligible to seek a membership with the MARA or the MIA.
As for an applicant considered to be partly in Australia for the emails being sent out electronically from overseas, I find the argument unconvincing. If this were to be so, should such applicants also be subject to the GST while calculating their fee as all applications are sent electronically from overseas?
However, your concerns are grave at the same time. There should be a policy put in place by the DIBP for regulating the overseas migration agents so that their affiliation to any structure set up should be subject to criteria parallel to the one for RMAs [with the exception of the requirement for being an Australian citizen or permanent resident] and for the purposes of putting their conduct under the scanner. -
Wednesday, 02 November 2016
I am an Australian registered MA, and operate overseas offices - no problem.
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Wednesday, 02 November 2016
you know this is not new right?
this has been going on since you could lodge visa applications.
chinese education and property agents routinely do applications and have huge businesses to cater for the market.
who cares?
you live in australia = you are under australian jurisdiction.
live abroad = no australian jurisdiction.
just because you send an email overseas does not mean australia has "some" jurisdiction. -
Wednesday, 02 November 2016
Nothing prevents DIBP to make a policy that would prohibit unregistered overseas agents from representing applicants. Take the example of New Zealand and they are explicit in their policy that agents must be registered even if overseas.
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Wednesday, 02 November 2016
It is not only the offshore persons. Some people are doing it openly even in Australia. Check this out https://www.facebook.com/tejinder.kalra.35
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Wednesday, 09 November 2016
Isn't she just a student recruiter?
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Wednesday, 02 November 2016
If NZ can specify why cant Australia?
Any individual providing New Zealand immigration advice either in New Zealand or offshore must be licensed unless explicitly exempt under the Immigration Advisers Licensing Act 2007 (the Act).
If you use your knowledge of or personal experience in immigration matters to advise, assist, direct or represent a person, you will be providing ‘immigration advice’. This could include, for example:
•using publicly available information to advise a person on an immigration matter
•advising a person what visa they qualify for
•advising a person how best to answer a question in the application form, or what additional information might best be included with the application
•writing a covering letter to accompany the application
•acting as their representative.
If you have concerns that you may be providing ‘immigration advice’ without a licence, you should seek independent legal advice or consider obtaining a licence.
Read the Act
Definition of immigration advice
Section 7 of the Act states that immigration advice ‘means using, or purporting to use, knowledge of or experience in immigration to advise, direct, assist, or represent another person in regard to an immigration matter relating to New Zealand, whether directly or indirectly and whether or not for gain or reward’.
Section 7 has three key elements, which define immigration advice:
•The person is using or purporting to use knowledge of or experience in immigration.
•Knowledge or experience is used to advise, direct, assist or represent another person.
•The advice, direction, assistance or representation is provided in regard to an immigration matter relating to New Zealand.
The Act’s definition of immigration advice specifically excludes:
•Providing information that is publicly available or that is prepared by the Ministry of Business, Innovation & Employment
•Directing a person to the Minister of Immigration, or to an immigration officer or a refugee and protection officer (within the meaning of the Immigration Act 2009), or to a list of licensed immigration advisers
•Carrying out clerical work, translation or interpreting services or settlement services.
Publicly available information
Providing information from a publicly available source is not immigration advice. Examples of a publicly available source include the Immigration New Zealand website.
Providing information becomes giving immigration advice when you tailor it to the particular circumstances of an individual or give guidance or assistance to the individual.
Clerical work
Clerical work relates to the provision of services in relation to an immigration matter, or to matters concerning sponsors, employers, and education providers, in which the main tasks involve all or any combination of the following:
•The recording, organising, storing, or retrieving of information.
•Computer or data entry.
•Recording information on any form, application, request, or claim on behalf and under the direction of another person.
Translation and interpreting services
Providing translation or interpreting services is not giving immigration advice.
Settlement services
Settlement services mean all or any of a range of targeted support services provided for migrants, refugees, protected persons, and their families to settle into the community, learn the language and to find out how to access essential community services. For example, this may include assisting migrants to find housing, schools for their children or information on public transport. -
Wednesday, 02 November 2016
I have examined the extra-territorial aspect in detail. I am a lawyer who also practises in private international law and cross-border issues.
One big driver is the relationship between DIBP and the Indian service provider who are going so far as to set up offices that look like official DIBP offices and have an inside channel to DIBP including promotion on DIBP and embassy websites.
There is a big disadvantage to any registered agent practicing overseas because MARA try to say that the code of ethics applies to the person wherever they practise, but does not apply at all to unregistered agents.
there is a real legal basis to this position as the act is currently framed, but the same legal logic would say that the Act is not intended to deal with immmigration decisions made outside Australia - now that would upend the DIBP administration....
Where is the govt desire to promote Australian service businesses in all of this?· Mimi (Mireille) Dewalheyns likes this comment. -
Wednesday, 02 November 2016
If only we had a Representative body that could effectively lobby on our behalf with respect to this matter.
Maybe one day. -
Wednesday, 02 November 2016
As an RMA residing in Vietnam I obtained my qualifications on line through ANU. Why aren't all overseas persons wishing to represent clients with DIBP subject to the same qualification requirement. The expertise of an RMA is, after all, related to a detailed knowledge of the Australian laws on immigration. DIBP is making a mockery of its own compliance systems by allowing this loophole to exist - and inviting corrupt practices.
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Wednesday, 02 November 2016
Most of them also claim that they are authorised agents from DIBP, Australia and they have an agent ID
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Wednesday, 02 November 2016
The issue of overseas agents has been discussed for a great many years. But consider, the client is overseas (mainly) so is the agent, so is the application. He/she cannot be governed by Australian law, unless we go the Canadian way, which we wont! It is up to us as Australian agents to get sufficient recognition that we excel above overseas agents, that overseas applicants recognize there is an advantage in using a MARA agent. If we don't, that is it then. I argued and won, with a Dept officer that where I had sent documents relating to a client who did not have an agent, had done his own application, when I sent documents and was told that I didn't have a 956. I said that the 956 ONLY related to the department liaising with me, that they are prevented in dealing with me and that they had to accept the documents regardless of who sent them. Remember guys, the Dept has never liked us agents, never has and never will. So don't expect this to change and for them to protect us.
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Wednesday, 02 November 2016
DIBP are being complicit in a breach of the law by facilitating representations by unregistered representatives.
Perhaps Div 11.2 of the Criminal Code Act 1995:
11.2 Complicity and common purpose
(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(3A) Subsection (3) has effect subject to subsection (6).
(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.
(6) Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(7) If the trier of fact is satisfied beyond reasonable doubt that a person either:
(a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or
(b) is guilty of that offence because of the operation of subsection (1);
but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence. -
Wednesday, 02 November 2016
In onshore there are still large number of unethical "Education Agents" and they are doing the same job as a Registered Migration Agent to charge fees to help international students to apply for student visa or partner visa in Australia. The trick is that they give all advice of immigration matter and help them to fill in all paper work to DIBP. These unethical education agents made up an excuse to tell the clients that they cannot put the details of education agent on the visa application forms otherwise they will charge the full fees to the students. What can we do?
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Wednesday, 02 November 2016
We should start a petition and get it signed from all registered migration agents, and hand it in to the Immigration minister. Requesting to band any communication between the DIPB and any unregistered agents, (any visa applications lodged by unregistered agents shouldn’t be accepted by the departments). We need to follow the Canadian framework for dealing with migration agents.
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Wednesday, 02 November 2016
Back when I was on the board of the MIA and the MARA we put forward suggestions to DIAC and it was knocked on the head.
I think the industry needs to get a panel of experienced agents together to present a paper and seek a meeting with the Minister and the Secretary,.
Simply put if all overseas posts were stopped from communicating with un-registered agents this would fix the problem until a point in time when off shore registration became law.
as stated above “Regulating the industry cannot be enforced outside Australia because the scheme is underpinned by criminal sanctions and it would be contrary to the principles of international law for the Authority to coercively investigate the actions taken overseas by foreign agents.
Consequently, both in and outside Australia, the department must deal with any third party who may provide documents to the department on behalf of clients, and/or that the client nominates as their authorised recipient. This includes migration agents not registered with the Authority.”
Policy can be changed and all I see at the moment is a huge conflict with the laws of Australia and the Policy created by DIBP. Why not just advise all offshore clients that the DIBP can deal directly with the visa applicant but not any other person unless they are registered with the MARA. -
Thursday, 03 November 2016
In my view -“Regulating the industry cannot be enforced outside Australia because the scheme is underpinned by criminal sanctions and it would be contrary to the principles of international law for the Authority to coercively investigate the actions taken overseas by foreign agents. " is an incorrect statement of international law. There are many examples recognized as quite consistent with international law by which Australian government authorities investigate activities of people overseas with respect to matters criminal by Australian law. people smuggling is a good example, securities or identity fraud is another. That reason is simplyu ignorance of international law and a pathetic beuraucratic excuse for inaction as most people (including RMAs and most lawyers) are not trained or experienced in international law at all. There is very much a relevant nexus to Australia in that it would be possible to regulate and criminalise if necessary the dealings between foreigners including agents and DIBP - they just haven't done it.
· Mimi (Mireille) Dewalheyns likes this comment. -
Thursday, 03 November 2016
John, putting a submission to the Minister isnt going to work. It is a weak approach the organisations tend to do, with respect. It will take a legal challenge. As an RMA seeing the rotten outcomes from overseas businesses, I am putting a submission to a cross bench Senator to call for a Senate inquiry into the routine administration of DIBP. It is a shambles and a big part of it is the overseas issues.
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Wednesday, 02 November 2016
Well the immigration policy is direct revenue for Australia which translates into Centrelink payments, roads, parks, etc. The dept has to decide the case on the merit and not on whether the client paid an agent or did it himself.19000 visas X 7200 for a family of 4 is aud 13.68 billion. 15000 RMAs are nothing compared to this revenue. Not including the 25000 aud minimum that each migrant spends in the first year setting up his life.
All we need to do is create awareness in the market and get the 100clients per year to have a
Good revenue of 300 to 500 k per year.
Immigration blog
Not only that, i question what it is that we are paying for in terms of fees, professional library etc, i am overseas and the cost of maintaining my MARA registration is ridiculous, i am aware of multiple businesses operating without any registrations overseas, of any kind, yet i am put through the ringer to maintain my accreditation (and paying $$$). I am now considering leaving the profession as i am fed up with fighting this situation.