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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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Friday, 04 November 2016The status quo will not change as the international student visa industry is too valuable and generates too much money. It is common knowledge that the student visa system has been corrupted and is seriously rorted as an easy pathway to an Australia visa for those with no intention of study. The feeders for this massive industry are predominantly unlicensed overseas operators. If you stop unlicensed overseas operators, the lucrative student visa industry grinds to a halt. This is the economic reality. The local legitimate Registered Migration industry is small potatoes in comparison to the student visa juggernaut.
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Friday, 04 November 2016
Suresh claims he puts in 45,000 applications at average of $US4000 so last year made $US 180 million. Call me cynical but I do not believe that. Many Australian agents may not be smart and may be useless but none I know are stupid enough to accept Suresh's claims of lodging 25% of all visa applications received in 2015. Any wonder so many overseas agents lack credibility!
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Friday, 04 November 2016
This is a little off the original topic, but in a similar vein. Please excuse me.
If you are worried about people who are not RMAs representing visa applicants, how much more worried ought you be about people who are neither Australian citizens nor members of the Australian Public service (with codes of conduct), making the actual decisions about who gets a visa and who doesn't.
Local hires invariably are not ultimately subject to Australian law and do not have the same education or standards as DIBP officers.
I would be up for running a legal challenge to that process, because the executive power of the commonwealth ought never be given to a foreigner. -
Friday, 04 November 2016Greg, this is a VERY interesting point. I think the best lawyer to run this matter would be Adrian Joel, if he would agree. Do you think the idea of a fighting fund, where all MA MARA agents and anyone else supporting this cause, puts money in to fight to have overseas DFAT employed locally-engaged staff removed?
What do you think of this idea?
We can also revisit S280 which was presented to the government when Chris Bowen was in (and he did nothing). From memory we also submitted S280 revisions (removing unregistered agents including HR Managers onshore) to Michaelia Cash when she was in but nothing was done.
Thanks
L -
Friday, 04 November 2016
I am sure Adrian is a good lawyer too, but I run my own firm.
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Friday, 04 November 2016
So sorry, Greg, I didn't know that you ran your own firm.
Would you be willing to run this matter if we could round up RMAs to create a fighting fund?
L -
Friday, 04 November 2016
Sure, my heart would be in it so it would be mates rates
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Friday, 04 November 2016
I'd be interested to know how many of Suresh's 45,000 (???) or so student visa applications were actually approved and how many students paid $4000.00 but never got a student visa?
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Friday, 04 November 2016
Hi Greg
DIBP claims otherwise: "All visa application decisions at overseas posts are made by Immigration officers working for DFAT" was once expressed to me from Bangkok office. I believe that this claim lacks credibility. What it may mean is some Immigration staffer signs off on decisions made by locals who base their "recommendation" to grant or refuse to grant on preconceived prejudices against their fellow nationals. -
Friday, 04 November 2016
Hi Robert - local hires are immigration officers working for DFAT, they are not however members of the Australian Public Service or necessarily Australian citizens (some are Aussies as at some posts they like to hire trailing spouses). They exercise power as delegate of the Minister, but are not part of the diplomatic mission and have no diplomatic immunity from local law (I have a client who is suing a local hire in local law for defamation in respect of official business to which they would be immune if a member of the Australian mission)
Jakarta post for example has many Indonesian women who undertake full decision-making under an instrument of delegation especially in respect of temporary visas, and who indeed are thought often to exhibit such prejudices or jealousies. -
Friday, 04 November 2016
Greg, I think the key point is not so much the delegations. As you say, it is about their ability to make reasonable and legally correct decisions. I have very difficult issues with several posts and it is clear a decision is often made without supervision by an Australian with knowledge. Having said that, decision-making in Australia is often very bad. It seems to me to be an overall lack of training, supervision and procedures that would avoid the problems. I feel sorry for case officers who I believe are often working well above their ability. It is a management issue.
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Friday, 04 November 2016
To all RMAs.
If you want to compete with non RMAS ( excluding the overseas Education Agents who are authorized to apply for Student visas only) then whats stopping you from going to India, putting ads in the local newspapers and actively educating the local population about the differences between RMA and non RMAs? Migration Alliance has a local rep in India, what stops each RMA to invest 1000 AUD and collectively advertise locally? IDP Australia does it with deadly effect and has made Australia a preferred destination for education.
The shonky students have been killed by the visa requirements of the new subclass 500 which now makes you declare that you understand that you cannot change your AQF level, you cannot apply for any visa other than a 500 or a 485.
We cannot sit in Australia and wait for people to magically search for the MARA registry and then choose agents. MARA in Hindi means I got beaten up
Where is the ad spend from MARA or at least a collective ad spend headed by MA and funded by RMAs? -
Saturday, 23 May 2020
Australian immigration matters only by Australia PR or citizens who are RMA ...they getting licence after the 1-year expertise course, clearing capstone by law society and English level test...so how an unqualified agent sitting in India compete with them...dont worry very soon the govt is implementing related process as bill in parliament...
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Saturday, 05 November 2016
It is interesting. The Productivity Commission did an audit of all visas from India a year or so ago. 40% had fake documents. Also, there are some in Unis there who can create a whole new profile for a student, fake again. This is one of the reasons why some countries including India are at the highest risk level with DIBP. It is proven less likelt to happen when an Australian Registered Agent is involved.
Re an action, I say focus on unlicenced businesses first, deal with overseas staff later. I would support an action against the DIBP against accepting visas from unlicenced operators. I guess Ed Agents if OK with the DIBP, are OK. -
Friday, 04 November 2016
I didn't know we were only talking about India!
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Friday, 04 November 2016
Ganesh
That is hilarious. MARA means 'I got beaten up'. Ahahahahaha!
It also stands for Morons And Retards Anonymous.
They are not even doing the needful.
Seriously if you had any idea how lame the staff are within the MARA you would want to puke all over yourself from disgust.
I guess what can we expect. If they had any talent they would get a real job, going somewhere. -
Friday, 04 November 2016
Ganesh
LOL!
LOL!
LOL!
In the mean time I have sent my email to my local senator.
Roger -
Friday, 04 November 2016
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Ganesh, I have just one thing to say about Suresh's comment. He is BS.