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Controversy! Law Council's Recommendations Regarding RMAs
The Law Council of Australia has recently published (on 11 May 2018) a set of submissions to the Australian Parliament’s Joint Standing Committee on Migration regarding the efficacy of current regulation of Australian migration agents.
These submissions from the Law Council will be of interest to lawyers practising in the field of migration law as well as to Registered Migration Agents, as it is possible that these submissions may result in or influence future changes to the regulatory regime governing the practice of RMAs.
The submissions from the Law Council can be accessed by clicking on this link, while submissions from other interested persons can be accessed here.
A summary of the proposals contained in the Law Council’s submission follows.
Our colleagues Mark Northam and Monica Gruszka have brought the Law Council’s submission to our attention through their very useful Immigration Law Newsletter, and we thank them for their assistance in circulating notice of the submissions.
Mark and Monica’s newsletter describes these proposals as: “the most severe limitation of migration agents implemented since the profession was organized over 20 years ago” and describes them as “shocking”.
Please read below and use the comments section to state your thoughts about the Law Council’s submission. Are they truly shocking? Do they go too far? Not far enough? Or are they “just right”?
Recommendation 1: English Language Proficiency – IELTS of At Least 7.5
The Law Council’s recommendation suggests that all entry –level migration agents be required to achieve an English language proficiency of at least 7.5 under the Academic version of IELTS.
The justification for this recommendation is that the work undertaken by migration agents can be linguistically taxing and that agents need to have high-level English language skills to perform tasks such as understanding and interpreting complex legislation; explaining documentation and correspondence that is in English; drafting documents in English; and interacting with the Department and other authorities.
Thus, the LCA recommendation is that Registered Migration Agents should be required to demonstrate the same level of English language proficiency as a lawyer. (The LCA notes that foreign lawyers seeking admission in Australia must achieve minimum scores of 8.0 for writing, 7.5 for speaking, and 7.0 for reading and listening).
Recommendation 2: Supervision of Entry-Level Migration Agents
The LCA recommends that all entry-level agents be required to satisfactorily complete a period of supervised practice before being permitted to practice on their own account or as a principal of a migration agency.
The LCA’s suggestion is that the supervision might be provided by a mentor or supervisor with at least 5 years of experience and that the supervisor be required to complete a statutory declaration confirming that the supervision has occurred and detailing evidence of completed work, such as types of visas worked on.
Recommendation 3: Two-Stage Registration System
The LCA recommendation is that there be a two-stage registration system so that all entry-level migration agents be subject to a period of conditional registration during which they must have supervision and obtain practical experience required for “unconditional” practice as a Migration Agent.
Recommendation 4: Advocacy Work Before Review Authorities
This is undoubtedly the strictest of the LCA’s recommendations, and represents a huge change from current practice.
The recommendation is that only Australian legal practitioners be authorized to represent applicants before a court or a review authority such as the AAT or the Immigration Assessment Authority.
It is, of course, currently commonplace for RMAs to represent applicants before the AAT.
The LCA’s rationale for this proposal – to allow only lawyers to represent applicants before the Tribunal and the IAA – is that proceedings before the review authorities are complex, they require a deeper understanding of the law (including rapidly evolving case law), represent an applicant’s last chance to present evidence on factual issues, and fundamentally shape the prospects for a judicial review application.
Recommendation 5: Migration Litigation
The LCA’s recommendation is that RMAs should not be engaged in providing advice to clients about the commencement of migration litigation in the Federal Courts, or certification of the prospects for success of such litigation,
The LCA states that the reason for this recommendation is that migration agents who are non-lawyers have been providing legal advice to clients on how to prepare and complete an application for judicial review to the Federal Circuit Court and have then been advising clients to proceed in the Federal Circuit Court as self-represented litigants, something which the LCA (quite reasonably, in my view) describes as carrying significant risk to applicants.
So what do you think? Are these recommendations too harsh and restrictive?
Comments
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Tuesday, 05 June 2018I think the Law Council of Australia should have written a submission addressing the issues of unregistered migration agents who are representing clients from overseas and the department of immigration are lawfully accepting these type of representations.
The majority of newly registered agents stays up to 5 years in the business due to the low income and the tough market out there. I think migration agents can hardly make ends meet and these type of submissions will not add any value to this profession while unregistered migration practice still exist. -
Tuesday, 05 June 2018
Just some personal observations. My background is in philosophy and linguistics.
English language requirements
1. If the government is using language requiring more than "competent" or even "proficient" English when dealing with migrants and their representatives perhaps they should simplify their use of language.
2. Many of my applicants who are native speakers of English including those in professional occupations have been unable to achieve more than proficient results in General IELTS (particularly writing). I suspect many professional Australians would have similar difficulties, but would still have the English ability to do the job.
3. Many migration agents are immigrants themselves which is of benefit to the profession and to applicants who come from similar backgrounds. Disqualifying them from the profession because of such high language requirements would be detrimental to the industry and diversity in general.
4. Has evidence been provided that significant errors have occurred due to miscommunication caused by the poor English skills of RMA's? If not, then what is the basis of the recommendation?
5. Becoming an RMA already requires a Bachelor degree and successfully completing at least 12 months of further tertiary study in English in Australia. Australian trained lawyers do not need to do an English test, even if they were previously immigrants.. Asking RMAs to do so is burdensome and unnecessary.· Carl Smart likes this comment. -
Wednesday, 06 June 2018
Interestingly, case officers are not required to take an English test and I have spoken to some who have a very low level of English skill. They are required to read and understand the legislation and policy involved for each visa submitted.
When it comes to complicated situations they make mistakes as do lawyers and migration agents.
If this is the standard acceptable for the ministers representatives, then why would migration agents need a higher standard? -
Tuesday, 05 June 2018
Vested interest at play here; the strong correlation between English language profiency (oppps I should state Expert) and Professional Migration practice is laughable. So if I’m a qualified English language teacher, I must be a damn good migration adviser.
Someone should shout these people that visa grant is criteria based.
Some merit on representation in courts but with AAT it’s anyway a one way discussion with the appellant.
Just a nuisance distraction keeping someone busy. -
Tuesday, 05 June 2018
Why they allow Property Manager to attend before VCAT residential matters despite no qualifications at all
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Tuesday, 05 June 2018
Your thoughts: Is the holder of an Associate Degree in Law(such as one awarded by the Southern Cross University Lismore) be considered as a Sub-Solicitor (apart from being a Paralegal) (Compare the similarity with a Sub Inspector for instance).
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Tuesday, 05 June 2018
This is an extremely bias submission from the LCA. RMAs are successfully representing clients at the AAT , And IAA.
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Tuesday, 05 June 2018
Speaking of myself; I believe that experienced migrant agents can do much better job than lawyers who are not specialized in immigration Law.
But; I do support the proposal that new RMAs need to be supervised for a space of few years. -
Wednesday, 06 June 2018
RE:
The recommendation is that only Australian legal practitioners be authorized to represent applicants before a court or a review authority such as the AAT or the Immigration Assessment Authority.
It is, of course, currently commonplace for RMAs to represent applicants before the AAT.
The LCA’s rationale for this proposal – to allow only lawyers to represent applicants before the Tribunal and the IAA – is that proceedings before the review authorities are complex, they require a deeper understanding of the law (including rapidly evolving case law), represent an applicant’s last chance to present evidence on factual issues, and fundamentally shape the prospects for a judicial review application.
This assumes the AAT appeal will not be successful even if handled by a lawyer.
Re - "represent an applicant’s last chance to present evidence on factual issues" -
That is the basis of a visa applications and tribunal submissions are the same evidence and in some cases more if available depending on the issue at hand.
RE:
is that proceedings before the review authorities are complex, they require a deeper understanding of the law (including rapidly evolving case law)
Any migration agent submitting visa applications is expected to be up to date with current case law to enable their submission to Immigration to present the case for the applicant in the form of a submission.
What has changed - nothing - this is the case now and has always been the case.
Lawyers are not privileged to sole access to case law.
Personally I have hundreds of cases on file for use as required in complicated cases.
[/i]The Tribunal member, in many cases, does not allow representatives the right to talk during the AAT hearing and relies on the evidence provided and questioning the applicant and witnesses, so what benefit is a solicitor who cannot comment?
Proceedings before the AAT are based on factual evidence to support the claim Immigration has made an error or at the time of the hearing the applicant meets the criteria for the grant.
Since the Tribunal is not a court and is heard by non legal people who are appointed as Tribunal members where is the logic that it needs legal representation?
It is unfortunate that the Law Council of Australia is seeking to put itself on a pedestal.
One can cite the poor performance of lawyers taking the Graduate Certificate in Migration law where the majority of them fail the course.
2007 Victoria University - almost 100 in the class - more than 60 lawyers some accountants, people who worked for migration agents and a few others.
Virtually all the accountants passed, the people who worked for migration agents passed, most of the others passed and the majority of the lawyers failed the course. Pass rate was below 40%.
3 years later 100 students in the class, majority of the students = lawyers. 13 people passed most of whom were not lawyers.
If this is a representation of the ability of lawyers to understand migration law then the law council should be looking at all lawyers to ensure they have the requisite skills to submit visas -
Thursday, 07 June 2018
Tell you what: lawyers are really really jealous of the huge profit made by "some" country-oriented migration consultancy companies and wonder how to take a piece of pizza from the plate. LCA's submission tells the truth.
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Monday, 11 June 2018
How about ensuring that all lawyers have their English tested for all the 4 components, the academic version ? You think they can all clear the required results. Also stop all lawyers from acting as migration agents. They have not done a migration agency course or qualified in it, why should they be lodging visa applications, advising on visa options, etc. Make it compulsory for lawyers to sit for the grad cert in migration law. They should only handle matters when it goes to court because that is what they are qualified to do. Tribunal matters are based on merits and factual so where is law involved ? Even the tribunal member is not a lawyer. In an AAT matter, the representative is not allowed to talk other than helping to prepare the submission, what is the issue ? I am a lawyer myself but I don't agree with what is being proposed. There are other ways of improving their business than to be undermining the migration agents.
Immigration blog
They should call migration agent as migration lawyer, if all migration agents can meet those requirements. We want to be treated as lawyer but not only agent because we are professional. We had completed lots of exams and programs to become a registered migration agent.