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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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Thursday, 03 November 2016It should be tested rather than assuming this. A smart lawyer may be able to find a way plus the publicity could help. Never say never
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Thursday, 03 November 2016
Go for it. explain the vibe of it. good luck. As a lawyer skilled in the area my advice is don't you will lose and lose your money, there is simply no legal basis for an injunction. I have sued DIBP personally in the Federal Court of Australia and won costs where appropriate (they took my passport when attempting to leave Australia with my family), I'm not gun shy. Hope you find a "smart" lawyer.
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Thursday, 03 November 2016
Greg, I am not being smart about this, there is a serious issue, it needs a solution. Publicity can often get action even if the case is lost. The stakes for RMAs and Immigration lawyers are very high. The stakes for failed applicants are very high.
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Thursday, 03 November 2016
It is an interesting observation but hardly new. I am Registered but work permanently overseas and compete with non registered persons who dont have the MARA expenses or "code" to worry about. It is very difficult; they can undercut me on costs and efficiencies of procedure (eg no contract, no holding accounts, no final accounts, etc etc) and some of them have many many years of successful experience and can easily compete with me on knowledge.
Canada seems to have no problem...their immigration department in a roundabout way doesnt process effectively (or not at all) any applications that arent through approved agents or self it seems (and issues fines, feel free to correct if that is wrong). If Dept Immi put this policy out they would very quickly bias the applicants into two streams - self and registered agents, if they truly wanted to exclude non registered agents - but they dont.
The main offenders I find are not unregistered migration agents with plentiful knowledge but education agents and travel agents giving non student and non visitor visa advice.
I too am seriously considering dropping my registration.
My conspiracy theory mind says Dept Immi dont actually want skilled registered migration agents, we know too much and give them a hard time with their subjective decisions, they would much rather an unskilled pseudo agent to deal with so actively encourage non registered agents. Those of you who deal with African applicants will know this all to well, with the African Dept Immi offices' "alliance" with several African companies. -
Thursday, 03 November 2016
money grab is all it is. Every failed application is money in the bag.
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Thursday, 03 November 2016
All agents should immediately write to Senators and their local Federal Member about this issue.
Get cross-benchers to force the issue in parliament. It's not like anyone is actually 'in control' in there right now so NOW is the right time to get this in. Senator Hanson-Young would be a good start. -
Thursday, 03 November 2016
Hanson-Young would not be my choice. She is against immigration period. But contacting non-govt, non-Labour, non-Green Senators is a good idea. Labour thru Shorten will take it into gutter politics, Greens will focus on refugees and the LNP wont want it opened up. Contacting Senators is a good idea, but pick your mark. Focus on the cost of the Dept for its poor admin and the unfair loss by potential applicants.
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Thursday, 03 November 2016
I am considering using a "sensible" cross bench Senator to push for a Senate inquiry into the many many administrative and process issues the DIBP have including this. It needs to be opened up. It isn't just the current government, it is longstanding but it needs the massive cost consequences to clients and the public purse opened up for scrutiny. Forget the refugee and religious issues we see in the media, it is an appallingly shambolic routine Department processes that needs a top down re-build.
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Thursday, 03 November 2016
This issue is not a new one.
The simple point to consider is that our close neighbor New Zealand has successfully implemented the law that, anywhere in the world, only Licensed Immigration Advisers can provide advice or professional assistance to (or represent) a client. Australia can do this easily if the authorities wanted to do so. In my mind I am convinced that Australia intentionally does not want to implement this due to some political reasons. It is as simple as this: once the the legislation is amended to cover the whole world (instead of only onshore coverage), DIBP should not accept applications or representations from any one not lawfully registered as a migration agent. Period. -
Thursday, 03 November 2016
Xenophon has power so let's go for Xenophon.
Email
senator.xenophon@aph.gov.au
Websites
Personal website
Alternative URL
http://www.aph.gov.au/Senator_Xenophon -
Thursday, 03 November 2016
This has just been put on twitter by Liana Allan who was tweeting at Nick Xenophon!....
Migration Alliance
@lianaallan
Unregistered Practice aided and abetted by the DIBP killing Australian businesses @Nick_Xenophon and other Senators
1:56 PM - 3 Nov 2016 -
Thursday, 03 November 2016Migration Alliance has sent this story and comments in relation to this story to the following politicians so far:
1. Senator Nick Xenophon senator.xenophon@aph.gov.au
2. Senator Jacqui Lambie senator.lambie@aph.gov.au
3. Alex Hawke (Assistant Immigration Minister) alex.hawke.mp@aph.gov.au
If RMAs would like to contact Senators by State / Territory then a full list of contact details by State / Territory is available here:
http://www.directory.gov.au/directory?ea0_lf99_120.&organizationalUnit&3c534f4b-1cd8-4b40-a36e-884c478e5cdf -
Thursday, 03 November 2016
Hello I am Suresh,
I operate a visa student service in India and have many client,I usually send in around 45,000 applications a year, this year number rise more because easy visa process. I charge around $4000 US per application. Many ppl don't use Australian agent because many are not smart and are useless. I have many employe in Sydney and Melbourne and we make business in that city for visa, they have no licence. We have no problem with government. You are all complain for nothing -
Friday, 04 November 2016
Of course, you're the only smart one! You make money unlawfully from our country. How dare you.
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Friday, 04 November 2016
+1 great comment Sites. If migration agents were so good there wldnt be a market for ppl like you.
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Friday, 04 November 2016
The only reason true RMA's cannot compete is because we are ethically bound to not make fraudulent or misleading representations, We are bound by the Code of Conduct. In addition, to remain financially sustainable, we cannot undercut our industry as we have the overheads of maintaining a professional library, yearly registrations, compulsory professional development, etc... all of which "Pretend" Agents do not.
And yes, there is a great market for registered migration agents, it's just undermined by a poor Australian regulatory system that aides and abets criminal activity, does not support local business and generally doesn't have a head for finance and economics.
Imagine how much $$ the government will make if they refuse to deal with unregistered migration agents? Does the Australian government really think we will lose business in the Student Visa arena? We are a fantastic country to go to, if students realize they cannot get a visa through a unregistered migration agent, they will look for a registered migration agent. All the shonky ones will have to get registered to stay in business, do the maths and calculate the fees the Australian government will receive via professional library, registrations and every thing else it costs to maintain our registration to be a migration agent.
They say the student visa system is a cash cow... now imagine the revenue it would bring to "Australia" if all dealings were only permitted via registered migration agents. All that income would be tax revenue for the government. I ask, how much tax revenue is the government receiving from offshore unregistered agents? By cutting off Unregistered migration agents, essentially, it is not only support local business, it is padding the government tax revenue because all migration agents need to be Australian Citizens or Permanent residents. -
Thursday, 03 November 2016
What about the rort where an Overseas Agent makes up an email address pretending to be the client....and just lodges applications online. DIBP don't care at all.
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Thursday, 03 November 2016
Simple solution is for DIBP or Australian Embassy/Consulate to say we will not accept instructions if you are not registered migration agent.
DIBP doesn't have to monitor overseas 'agent' just simply say we will not accept any communication -
Friday, 04 November 2016
Guys please read Suresh M's comment.
Immigration blog
An injunction would fail. The conduct you propose to injunct is not unlawful. The RMA regime does not apply extra-territorially as a matter of both policy and law.
What is unlawful and not policed is companies in Australia providing immigration assistance through employment of RMAs.