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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 2016Hi Diamond...
"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"....seriously??????
Are you suggesting that an unregistered operative in India will be able to demonstrate competencies at the same level as a Registered Migration Agent?
I did not find you details on the OMARA register of agents. And I am completely against Aus Immigration dealing with unregistered agents in any part of the world.
For example, Canadian Immigration only deals with CSIC registered agents. -
Wednesday, 02 November 2016
Diamond Sodhi, http://www.caanwings.com/immigration/australia.html ...unregistered Agent with DEPARTMENT OF IMMIGRATION & CITIZENSHIP AUSTRALIA [DIAC] OFFSHORE AGENT ID: 3010546
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Wednesday, 02 November 2016
The answer is simple. The department 'likes' the hacks from offshore. They are limited in what they can do (they cannot take a matter to appeal, for example, as their clients - victims - are offshore and do not have review rights).
We - on the other hand - can and do often show up 'mistakes' that the department makes (mistakes that are invariably to our client's detriment) and the department doesn't like the 'embarrassment' - it would rather have (manufacture) statistics that say it is doing an 'exemplary' job.
This started a long time ago. We have been slow in responding. -
Wednesday, 02 November 2016
Unfortunately this is a mentality in Australia - country that I love - that there is no respect for common sense within most governmental agencies, including DIBP. The real blame for this is the week Judicial System, inaccessible for most Australians (too costly), too lenient, too week.
Australians ( I am one of them now) are not as professional as they could, everything is not refined.
Forget about complaining to the Minister, or to your local MP, won't fix the problem.
RMA's (via Migration Alliance) should suit the Federal Government (if this is possible) and seek damages for the maladministration of DIBP, for the poor decisions that cause so much grief and financial loss to clients, for the huge delay in processing applications, for allowing RCB's (187 visas) to operate at their will, without any limits whatsoever.
DIBP case officers (my experience), disregard the Privacy Act, issue so many decisions knowing to be against the best interests of the migration system (they should be dismissed in accordance to the Public Servant Act).
I am on this industry for a long time now and preparing to leave as I will not fight the Dragon (this is for our friend Chris) without support from the Judicial System.
Now, if the Alliance (and RMA's) REALLY decide to fight a good fight against the unprofessional management of DIBP, I am in. -
Friday, 04 November 2016
Case in point. Is this the calibre of English that our onshore RMA's exhibit? We are dealing with law in an English speaking country. Incorrect spelling and poor grammar does not reflect well on the profession. There is a difference between "week" and "weak".
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Wednesday, 02 November 2016
Take the cue from Canada. Only Canada citizens can be immigration advisers. Only applicants themselves or Immigration advisers are eligible to lodge applications or communicate with the Immigration authorities.
It gives a psychological barriers for dodgy agents as applicants will usually not approach and agent who cannot direct act on behalf of the applicant.
By allowing non citizens/PR holders to communicate with DIBP, DIBP is doing a great disservice to Australian visa applicants. -
Wednesday, 02 November 2016
As it is against the Australian Law to give Migration advice unless you are a RMA, and anyone "helping" a person who is in breach of the law is regarded as a conspirator, does it means that the delegate who accepts communication from such an agent is guilty of an offense? If not why not? The mere fact that someone gets away from breaking the law, and gets help from an Australian government official to continue doing so is wrong. I can accept that the law cannot be enforced overseas, but the Australian official should not be allowed to accept that communication.
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Wednesday, 02 November 2016
Michael has yet again exposed another problem with DIBP/OMARA operations and policy. There should be no mistake in understanding that OMARA is part of DIBP and hence the same entity. What Michael failed to mention is that DIBP also allows non MARA registered Education Agents to act as RMAs who, whilst not necessarily charging for their services, none the less profit by way of commissions paid by education providers.
As a RMA who interacts with many other RMAs and Immigration Specialist Lawyers, I and most of my peers are perplexed as to how so many sanctions and punishments can apply to those who pass the standards whilst leaving those with no responsibility can do as they please. Why does DIBP choose to continue to participate in communications with those who are obviously in breech of Migration Act Section 282[4]? Would this not make any DIBP officer who chooses to do so complicit in committing an act that is expressly disallowed by the the legislation that he/she is empowered to operate under?
Michael, I would appreciate your opinion on my comments. -
Wednesday, 02 November 2016
I don't agree with Diamond. We represent Australian migration. I think the Government has an obligation to restrict the profession to Australian residents. Do I, as an Australian citizen, have the right to provide migration advice to other country nationals about migration legislation in other countries? No, and I wouldn't expect to be able to do so.
Our profession has been tarnished by unscrupulous operators - both registered and unregistered. I see rampant abuse of visa applicants. I see incredible negligence and appalling English language skills displayed by some RMAs in Australia. To allow foreign nationals to give migration advice unrestricted and unregulated would be neither fair nor wise. It provides opportunity for abuse and corruption. I hear if so many cases of RMAs charging exorbitant fees and providing no receipts - insisting on cash only. I hear of threats to clients and have witnessed first hand the tragic circumstances that result from incompetent advice. Allowing foreign nationals access to provide migration advice would only further exacerbate the existing issues.
I believe further restriction is required. In many cases RMAs onshore leave a lot to be desired when it comes to English language competence. We are dealing with law here - and people's lives. An IELTS of 6.0 is inadequate to make a legal submission on behalf of a client.
I agree that maintaining registration is an incredibly expensive exercise and it is unfair that, as RMAs, we pay such high costs when foreign nationals are neither required to study a relevant course or pay to maintain registration. -
Wednesday, 02 November 2016
Another loophole is that non RMA can set up a company and employ RMA providing migration service with fees. This include many previous RMA whose license were cancelled or suspended , still continue giving migration assistance, sometimes using subcontractor RMA (with their registration number) to lodge visa applications or for advertisement purposes. I believe non- RMA should not be sharing fees with RMA.
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Wednesday, 02 November 2016
Pathetic MARA is aware numerous agents rent out their agent numbers overseas or sign off on work completed by someone else . They have done nothing , as usual
Code needs to be urgently amended to stop this deception . -
Wednesday, 02 November 2016
As an RMA who does many appeals, I see applications by overseas visa businesses with constant and direct communications with the Department. In a recent one, the notes by the officer included a warning to a manager that the visa business was in a high risk category, the visa was refused. I believe I can win on appeal, it was a reasonable relationship. The DIBP in all overseas posts have regular and direct communications with businesses taking fees. I believe the DIBP is breaching the Act and Regulations by doing so and a case could be made by Australian agents/lawyers against the DIBP based on the Act. NZ and Canada successful restrict all non-registered businesses lodging. Is there someone with some b*lls, skill and time to do this?
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Wednesday, 02 November 2016
I also have seen a case this week of a visitor visa granted to someone overseas, who would have no chance if assessed properly. I met him, he is now planning to apply for a protection visa, hopeless. He told me directly, he paid someone who then paid a visa officer. DIBP have a lot wrong with their processes, especially overseas.
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Wednesday, 02 November 2016
So this is how Citizenship and Immigration Canada (CIC) approach the subject of "authorized representatives"
Paid representatives:
Only some people can charge a fee or receive any other type of payment to represent or advise you on a Canadian immigration or citizenship proceeding or application. These are:
lawyers and paralegals who are members in good standing of a Canadian provincial or territorial law society,
notaries who are members in good standing of the Chambre des notaires du Québec and
citizenship or immigration consultants who are members in good standing of the Immigration Consultants of Canada Regulatory Council.
These people are called “authorized” representatives.
CIC will not deal with representatives who charge for their services and are not members of one of the above groups.
WHY can't DIBP take this approach? Surely it's not that hard to implement? -
Wednesday, 02 November 2016
this situation is about 15 years old. The Departments attitudethen was that in fact of the applications they received from off shore ["agents' were quite often better than those from Australia. The issue died for some time but obviously it still exists. It is easily rectified if the Dept wishes, and is for them to refuse to accept applications from unregistered agents. I am of the opinion [without being a lawyer] that this situation could challenged in court somehow as it is not fair and not reasonable. [Hows that for a non-lawyer!!]
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Wednesday, 02 November 2016
Liana and all
The Department. OMARA and the National Assessment Authority are incompetent and reluctant to act to investigate unregistered practice, unlawful money laundering practice and attempt to defraud the department to obtain business with the complicity of a ex PMO and a SC 163 visa holder. These allegations were evidenced by concrete evidence of captured email.
The DIBP refuses to advise why it has not taken any action . I even had my local MP to raise the issue and he too was shut out. No only the ABC media is looking into it. -
Wednesday, 02 November 2016
No jurisdiction is a load of baloney... the easy solution is: If the person is not the applicant, sponsor, RMA or eligible nominated person via form 956, DIBP will not engage with that person. You do not need to prosecute them, just cut their shonky line of business. If they want to act for clients, tell them to get registered!
For DIBP to engage with unregistered (overseas) migration agents means they condone these shonky business dealings. Any clients that have been misled, deceived, or provided unprofessional migration services should be able to sue DIBP as an accomplice to shonky dealings because, DIBP knew the agent was unregistered but continued / were encouraged to continue to engage with them. -
Wednesday, 02 November 2016
In addition to above, funniest and dangerous part is about 10 years back DIBP has issued several Offshore Agent IDs for unregistered Migration agents operating overseas with the intention of monitoring and introducing separate registration for Migration Agents in overseas countries.
However those agents with offshore agent IDs publically advertise and charge fees from clients for handling their migration processers. In these cases clients have no protection at all as neither MARA nor Department regulate these agents. Though Department announces not to use unregistered agents and mentioned small part in form 956 “Non Registered Migration Agents Outside Australia”, how many clients in overseas countries read this part? On the other hand Department indirectly encourage these Offshore Agents by allowing them to publicly publish advertisements with their Offshore Agent Number. How many clients or new Migration agents know the difference between Registered Migration Agent and Offshore Agent? What level of management/monitoring/administration work done by the Department in this regards so far? Has Department ever cancelled any Offshore Agents? If so on what channel does the Department list those Agents for the clients to see in that particular offshore location/country? These Offshore Agents have unlimited immunity and they act as though they are registered with the Department (Of course they are registered with the Department as DIBP has only issued the agent numbers to them without any fee or regulatory framework) . Knowingly or unknowingly Departmnet has put offshore clients at huge risk by indirectly endorsing these offshore agents by providing a separate number for them. Unfortunately public/clients that use these agents have no place to complaint or a place/authority to regulate these agents. On top of that as far as I know the Department has never terminated any of these agents as there is no expiry date for these registrations which was given to them free of charge. But these agents charge any fee as they wish from clients. Department should either terminate these agents and make an announcement to the general public in those respective countries through Australian High Commissions and media or enroll them with a fee and under proper regulatory scheme.
As MA always represents and protect its’ members and general public, MA should bring this up with top management of DIBP and the Minister as damages done by these agents to the industry are immense. Otherwise Registered Migration Agents operating in overseas countries should demand the Department to issue an Offshore Agent ID and exempt them from paying their hard earn money on CPD, annual registration, subscriptions and most importantly allow them to have the international immunity from being Sanctioned by MARA under any circumstances. -
Wednesday, 02 November 2016
I wonder if a legal eagle or a gutsy organisation like the MA in Australia has considered applying for an injunction on the DIBP to stop them interacting with unregistered visa businesses overseas. NZ and Canada have stopped this practice. By doing this the DIBP are facilitating breaches of the laws in place to stop unregistered people accepting fees to prepare visas. Perhaps there is an independant Senator who will take up this case for a Senate inquiry. A simple FOI of stats showing how many visa applications prepared by unqualified businesses might be surprising. Mmmm worth considering.
Immigration blog
The point of this article is that it's not something up for discussion - it is a CRIMINAL OFFENCE for overseas unregistered agents to communicate with DIBP. That means it's also a CRIMINAL OFFENCE for any DIBP officers that "aid" (ie. reply to or provide immi accounts to) these unregistered agents because they're aiding a person to commit a criminal offence.