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Act No. 48 of 2004 as made
An Act to amend the Migration Act 1958, and for related purposes
Administered by: Immigration and Citizenship
Originating Bill: Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003
Date of Assent 21 Apr 2004
Table of contents.

 

 

 

 

 

 

Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004

 

No. 48, 2004

 

 

 

 

 

An Act to amend the Migration Act 1958, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 1

Schedule 1—Amendments                                                                                                 1

Part 1—Amendments                                                                                                      1

Migration Act 1958                                                                                                     1

Part 2—Application and transitional provisions                                                     1

 


 

 

Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004

No. 48, 2004

 

 

 

An Act to amend the Migration Act 1958, and for related purposes

[Assented to 21 April 2004]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

21 April 2004

2.  Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

1 July 2004 (Gazette 2004, No. GN23)

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendments

Part 1Amendments

Migration Act 1958

1  Section 275

Insert:

high visa refusal rate, in relation to a visa of a particular class, has the meaning given by section 306AC.

2  Section 275 (definition of registered agent)

Repeal the definition.

3  Section 275

Insert:

registered migration agent means an individual registered as a migration agent under section 286.

4  Section 275 (definition of registration application fee)

After “imposed by”, insert “section 4 of”.

5  Section 275

Insert:

registration status charge means charge imposed by section 10 of the Migration Agents Registration Application Charge Act 1997.

6  After subsection 276(2)

Insert:

          (2A)  For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

                     (a)  preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person); or

                     (b)  advising the other person about making such a request.

7  Subsection 276(3)

Omit “subsections (1) and (2)”, substitute “subsections (1), (2) and (2A)”.

8  At the end of section 277

Add:

             (4)  A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person).

9  Paragraph 278(a)

Omit “employed by”, substitute “an employee of”.

10  At the end of section 278

Add:

Regulations

             (2)  For the purposes of this Part, an individual is also related by employment to another individual in any other prescribed circumstance.

Expanded meaning of employee

             (3)  In this section:

employee includes a person engaged as a consultant or as an independent contractor.

11  Subsection 280(1)

After “registered”, insert “migration”.

12  Subsection 280(1) (penalty)

Omit “50”, substitute “60”.

13  At the end of subsection 280(1)

Add:

Note:          See also paragraph 504(1)(ja) (which deals with the payment of penalties as an alternative to prosecution).

14  At the end of subsection 280(2)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

15  At the end of subsection 280(3)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

16  At the end of subsection 280(4)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

17  Subsection 280(5)

Repeal the subsection, substitute:

             (5)  This section does not prevent an individual from giving immigration assistance of a kind covered by subsection 276(2A) if the assistance is not given for a fee or other reward.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

          (5A)  This section does not prevent a close family member of a person from giving immigration assistance to the person.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

          (5B)  This section does not prevent a person nominating a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

          (5C)  This section does not prevent a person sponsoring a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

18  At the end of subsection 280(6)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

19  Subsection 280(7)

Insert:

close family member has the meaning given by the regulations.

20  Subsection 281(1)

After “registered”, insert “migration”.

21  Subsection 281(2)

After “registered”, insert “migration”.

22  At the end of subsection 281(3)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

23  Subsection 282(1)

After “registered”, insert “migration”.

24  Subsection 282(2)

After “registered”, insert “migration”.

25  At the end of subsection 282(4)

Add:

               ; or (e)  on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to that person), about the request.

26  Subsection 283(1)

After “registered”, insert “migration”.

Note:       The heading to section 283 is altered by inserting “migration” after “registered”.

27  Subsection 283(2)

After “registered”, insert “migration”.

28  Subsection 284(1)

After “registered”, insert “migration”.

29  At the end of subsection 284(2)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

30  At the end of subsection 284(3)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

31  At the end of subsection 284(4)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

32  Subsection 285(1)

After “registered”, insert “migration”.

33  At the end of subsection 285(2)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

34  At the end of subsection 285(3)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

35  At the end of subsection 285(4)

Add:

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

36  Subsection 287(2)

After “registered” (first occurring), insert “migration”.

36A  Paragraph 287(2)(h)

Omit “under paragraph 303(c)”.

37  At the end of subsection 287(2)

Add:

              ; and (i)  particulars of any other prescribed matter.

38  Paragraph 287(3)(b)

Repeal the paragraph, substitute:

                     (b)  particulars of any cancellation or suspension of a registered migration agent’s registration or of any caution given to such an agent.

38A  After subsection 287(3)

Insert:

          (3A)  The Authority may publish, in the prescribed way, a list of the names of former registered migration agents, their former migration agent registration numbers and the date they ceased to be registered. The Authority must remove a person’s details from the list at the end of the prescribed period.

39  At the end of section 287

Add:

Removal of disciplinary details

             (5)  The Authority must remove from the Register the following details:

                     (a)  particulars of any suspension of a registered migration agent’s registration (if the suspension is no longer in effect);

                     (b)  particulars of any caution given to such an agent (if the caution is no longer in effect).

Time for removal

             (6)  The Authority must remove the details within the period worked out in accordance with the regulations.

             (7)  The regulations may prescribe different periods in relation to details about suspensions or cautions.

40  Section 288

Repeal the section, substitute:

288  Application for registration

             (1)  An individual may apply to the Migration Agents Registration Authority to be registered as a registered migration agent.

Publishing requirement

             (2)  The individual must satisfy 1 of 2 publishing options set out in section 288A (unless he or she has been registered at some time in the 12 months immediately before making the application).

Form of application

             (3)  A registration application is to be in a form approved in writing by the Authority and contain such information relevant to the application as is required by the form.

Note:          The applicant may be required to make a statutory declaration, or to answer questions, in relation to the application: see section 288B.

Time of application

             (4)  The day on which a registration application is taken to have been made is the day worked out in accordance with the regulations.

Registration application fee

             (5)  The Authority must not consider a registration application unless the applicant has paid the registration application fee (if any) on the application.

Evidence of publication

             (6)  If the applicant is required under this section to satisfy 1 of 2 publishing options, the Authority must not consider the application unless the applicant has:

                     (a)  satisfied one of those options; and

                     (b)  given the Authority evidence of the publication concerned.

Proceedings finalised about previous registration

          (6A)  If:

                     (a)  the applicant has been registered at some time before making the application; and

                     (b)  the Authority made a decision to suspend or cancel the applicant’s registration; and

                     (c)  the applicant made an application (the review application) for review of the decision under the Administrative Appeals Tribunal Act 1975 or for judicial review of the decision;

then the Authority must not consider the registration application unless it is satisfied that all proceedings (including any appeals) resulting from the review application have been finalised.

Withdrawal of application

             (7)  The applicant may withdraw an application by giving notice in writing to the Authority. However, the applicant is not entitled to a refund of the registration application fee paid in relation to the application.

288A  Publishing requirement

             (1)  For the purposes of subsection 288(2), this section sets out an individual’s 2 publishing options.

Individual publication

             (2)  The first option is for the individual to publish in the prescribed way a notice:

                     (a)  stating his or her intention to apply for registration; and

                     (b)  stating that anyone may give the Migration Agents Registration Authority a written objection to his or her registration within the period of 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).

Joint publication

             (3)  The second option is for the individual and one or more other individuals, who are all employees of the same employer and who all intend to apply for registration, to publish in the prescribed way a single notice:

                     (a)  stating their intention to apply for registration; and

                     (b)  stating that anyone may give the Migration Agents Registration Authority a written objection to registration of any one or more of them within the period of 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).

288B  Requiring applicants to make statutory declarations or to answer questions

             (1)  The Migration Agents Registration Authority may require an applicant who, on the day the application is taken to have been made, is not a registered migration agent:

                     (a)  to make a statutory declaration in relation to information or documents provided by the applicant in relation to the application; or

                     (b)  to appear before one or more individuals specified by the Authority and to answer questions in relation to the application.

             (2)  If an applicant is required under this section to make a statutory declaration or to answer questions, the Authority must not further consider the application until the applicant does so.

41  Subsection 289(1)

Omit “section 290, 290A, 291, 292, 292A, 293 or 294”, substitute “this Part”.

42  Subsection 289(1) (note)

Omit “because of one or more of those sections”.

43  Subsection 289(2)

After “Authority”, insert “must”.

44  Subsection 289(3)

Omit “If the applicant was required to publish notice of his or her intention to apply for registration”, substitute “However, if the applicant was required under section 288 to satisfy 1 of 2 publishing options”.

45  Paragraph 289(3)(a)

Omit “notice, despite subsection (2)”, substitute “notice concerned”.

46  Paragraph 289(3)(b)

Omit “section 290, 291, 292, 293 or 294 prohibits registration of”, substitute “to register”.

46A  Subsection 289(4)

Omit “subsection 300(3)”, substitute “subsection 300(6)”.

47  After section 289

Insert:

289A  Applicant must not be registered if does not satisfy registration requirements

                   An applicant:

                     (a)  who has never been registered; or

                     (b)  who is applying to be registered more than 12 months after the end of his or her previous registration;

must not be registered unless the Migration Agents Registration Authority is satisfied that he or she:

                     (c)  has completed a prescribed course within the prescribed period and has passed a prescribed exam within the prescribed period; or

                     (d)  holds the prescribed qualifications.

48  Paragraph 290(2)(b)

Repeal the paragraph.

49  Paragraph 290(2)(f)

Omit “a professional association is taking, or has taken,”, substitute “is being taken, or has been taken,”.

50  Paragraph 290(3)(d)

Omit “a professional association is taking, or has taken,”, substitute “is being taken, or has been taken,”.

51  At the end of section 290

Add:

             (4)  To avoid doubt, this section applies to all applicants (not just first time applicants).

52  Section 290A

After “not met”, insert “, within the prescribed period,”.

53  Section 290A

After “registered” (last occurring), insert “migration”.

54  After section 290A

Insert:

290B  Applicant must not be registered if any unpaid registration status charge

                   An applicant must not be registered if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.

55  At the end of section 291

Add:

             (2)  To avoid doubt, this section applies to all applicants (not just first time applicants).

55A  After section 291

Insert:

291A  Applicant must not be registered if suspension would be in effect

                   If:

                     (a)  an applicant has been registered (the previous registration) at some time before making the application; and

                     (b)  the Migration Agents Registration Authority decided to suspend the previous registration (whether or not that decision was stayed); and

                     (c)  the previous registration ended on or after the suspension decision;

then the applicant must not be registered during a period in which the previous registration would have been suspended had the previous registration not already ended.

Example 1: A registered migration agent’s registration is suspended for a period. The agent is deregistered under section 302 so the suspension of the registration ends. The agent cannot be re‑registered until the suspension period ends.

Example 2: The Migration Agents Registration Authority suspends a registered migration agent’s registration. The agent applies for review of the decision and a stay order is made in relation to the decision. The agent continues to practise, while the stay order is in force, until the agent’s registration ends. Subsection 288(6A) prevents the agent from being re‑registered until the review proceedings are finalised. The agent cannot be re‑registered if the suspension decision is affirmed on review and the suspension would not have ended (had the registration continued).

Example 3: Under section 300, a registered migration agent’s registration is continued after the expiry day of the agent’s registration. The Migration Agents Registration Authority makes a decision to suspend the agent’s registration until the agent complies with a condition, and so the registration ends because of subsection 300(4). The agent cannot be re‑registered until the agent complies with the condition.

56  Section 292

Repeal the section, substitute:

292  Applicant must not be registered if registration cancelled in past 5 years

                   An applicant whose registration has been cancelled under section 303, 306AG or 306AGAC must not be registered within 5 years of the cancellation.

57  Section 292A

After “subsection 311A(1)”, insert “or 311L(1)”.

58  Paragraph 292A(a)

After “registered”, insert “migration”.

58A  After section 292A

Insert:

292B  Applicant must not be registered unless he or she holds appropriate professional indemnity insurance

             (1)  An applicant must not be registered unless the Migration Agents Registration Authority is satisfied that he or she has professional indemnity insurance of a kind prescribed by the regulations.

             (2)  To avoid doubt, this section applies to all applicants (not just first time applicants).

59  At the end of section 294

Add:

             (2)  To avoid doubt, this section applies to all applicants (not just first time applicants).

60  Subsection 299(1)

Omit “302 and 303”, substitute “302, 303, 306AG and 306AGAC”.

61  Subsection 299(1)

After “registered”, insert “migration”.

62  Subsection 299(3)

After “registered”, insert “migration”.

63  Section 300

Repeal the section, substitute:

300  Automatic continuation of registration

When agent’s registration is automatically continued

             (1)  Subsection (4) applies to continue a registered migration agent’s registration beyond the last day (the expiry day) of the agent’s registration if, before the end of the expiry day:

                     (a)  the agent made a registration application; and

                     (b)  the agent paid the registration application fee (if any) in respect of the application; and

                     (c)  the Migration Agents Registration Authority had not decided the application.

Exception—suspension

             (2)  However, subsection (4) does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to suspend the agent’s registration, unless:

                     (a)  the suspension had been completed before the end of the expiry day; or

                     (b)  there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled.

Exception—cancellation

             (3)  Subsection (4) also does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to cancel the agent’s registration, unless:

                     (a)  there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or

                     (b)  there was a decision of the Administrative Appeals Tribunal or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.

Period of continuation of registration

             (4)  The agent’s registration is taken to continue after the expiry day until the earliest of the following:

                     (a)  the Authority decides the application;

                     (b)  the Authority decides to suspend the agent’s registration;

                     (c)  the Authority decides to cancel the agent’s registration;

                     (d)  the end of the period of 10 months beginning on the day after the expiry day.

Application granted if no decision within a certain period

             (5)  If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:

                     (a)  decided the registration application; and

                     (b)  decided to suspend the agent’s registration; and

                     (c)  decided to cancel the agent’s registration;

then the application is taken to have been granted at the end of that period.

When registration takes effect

             (6)  If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), the registration is treated as having taken effect at the end of the expiry day.

Example:    An agent’s registration is due to end on 31 October (the expiry day). On 20 October the agent applies to be registered again. The Authority has not decided the application by the end of 31 October.

                   The agent’s registration continues automatically past 31 October until the Authority decides the application.

                   On 15 November the Authority grants the application. The new 12 month registration is treated as having taken effect at the end of 31 October.

When Authority makes decision

             (7)  For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.

64  Section 301

Omit “One month”, substitute “At least 30 days”.

65  Section 301

After “registered” (first occurring), insert “migration”.

66  Subsection 302(1)

After “registered”, insert “migration”.

67  Paragraph 303(a)

After “registered”, insert “migration”.

Note:       The heading to section 303 is replaced by the heading “Disciplining registered migration agents”.

68  Section 303 (note)

Repeal the note, substitute:

Note 1:       The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent’s registration in certain circumstances: see Division 3AA.

Note 2:       If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.

69  At the end of section 303 (after the note)

Add:

Unpaid registration status charge

             (2)  The Authority may also suspend the registration of a registered migration agent if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.

70  Subsection 304(1)

After “registered”, insert “migration”.

71  After section 304

Insert:

304A  Conditions for lifting cautions

                   The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent.

Note:          Particulars of cautions are shown on the Register: see section 287.

72  Sections 305 and 305A

Repeal the sections, substitute:

305  Notice of disciplinary decision

Notice to agent

             (1)  The Migration Agents Registration Authority must give a registered migration agent written notice of a decision made under section 303 in relation to the agent.

             (2)  The notice must set out the reasons for the decision.

When decision takes effect

             (3)  The decision takes effect at the time the agent is given written notice of it.

Note:          Section 332H sets out when the agent is taken to have been given the notice.

305A  Making disciplinary details publicly available

             (1)  If a registered migration agent is given notice of a decision under section 303, then the Migration Agents Registration Authority:

                     (a)  must as soon as possible make available in the prescribed way a statement that sets out the decision and specifies the grounds for the decision; and

                     (b)  may prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the decision.

Content of statement

             (3)  A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Protection from civil proceedings

             (4)  No action or other proceeding for damages lies against a person for publishing in good faith:

                     (a)  a copy of; or

                     (b)  an extract from; or

                     (c)  a summary of;

a statement under this section.

73  Before section 306

Insert:

305B  Providing disciplinary details to clients

             (1)  If the Migration Agents Registration Authority makes a decision under section 303 in relation to a registered migration agent, the Authority or the Secretary may inform one or more of the clients of the agent about any one or more of the following:

                     (a)  the making of the decision;

                     (b)  whether or not the agent has applied for review of the decision;

                     (c)  the status of any such review.

             (3)  In this section:

client has the meaning given by section 306C.

305C  Requiring registered migration agents to give information or documents

             (1)  This section applies if the Migration Agents Registration Authority is considering:

                     (a)  refusing a registration application from a registered migration agent; or

                     (b)  making a decision under section 303 to cancel or suspend such an agent’s registration or to caution such an agent.

             (2)  The Authority may, by written notice given to the agent, require him or her to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner.

             (3)  A period specified in a notice under this section must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the agent is taken to have been given the notice.

Offence

             (4)  A person commits an offence if:

                     (a)  the person is subject to a requirement under this section; and

                     (b)  the person contravenes the requirement.

Penalty:  60 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Self‑incrimination

             (6)  A person is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.

             (7)  However:

                     (a)  any information or document provided in response to a requirement under subsection (2); and

                     (b)  any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (2);

is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

74  At the end of Division 3 of Part 3

Add:

306AA  Stay orders

                   If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.

75  After Division 3 of Part 3

Insert:

Division 3AADisciplining registered migration agents for engaging in vexatious activity

Subdivision ADefinitions

306AB  Definitions

                   In this Division:

mandatory decision means a decision of the Migration Agents Registration Authority under paragraph 306AG(1)(a), (b) or (c) or subsection 306AGAC(1).

referral decision means a decision of the Minister under subsection 306AC(1) or 306AGAA(8).

Subdivision BReferral of registered migration agents for disciplinary action

306AC  Minister may refer registered migration agent to the Migration Agents Registration Authority

Referral

             (1)  The Minister may refer a registered migration agent to the Migration Agents Registration Authority if the agent has a high visa refusal rate in relation to a visa of a particular class.

Note 1:       If the Minister is considering doing so, the Minister must invite the agent to make a submission on the matter and must consider any submission that is made: see section 306AE.

Note 2:       If the Minister refers an agent, the Authority must consider whether to discipline the agent: see section 306AG.

Note 3:       The Minister’s decision and any decision of the Authority to discipline the agent are reviewable by the Administrative Appeals Tribunal: see section 306AJ.

High visa refusal rate

             (2)  This is how to work out if the agent has a high visa refusal rate in relation to a visa of a particular class:

Method statement

Step 1.   Work out the number of:

               (a)     valid applications for a visa of that class; and

               (b)     applications for review by a review authority of a decision to refuse to grant a visa of that class;

              made during a period determined by the Minister under this Division in respect of which the agent has given immigration assistance to the applicants concerned.

                   Note:             Subsections (3) and (4) provide for certain applications not to be counted.

Step 2.   Work out if the number at step 1 is equal to or greater than the number determined by the Minister under this Division.

Step 3.   If it is, work out in respect of the applications covered by step 1 the number of decisions to refuse to grant a visa that are standing at the end of all the proceedings (including any appeals) resulting from such decisions.

Step 4.   The agent has a high visa refusal rate in relation to a visa of that class once the number at step 3 expressed as a percentage of the number at step 1 is equal to or greater than the percentage determined by the Minister under this Division in relation to that class of visa.

Immigration assistance at visa application stage and review stage

             (3)  If:

                     (a)  the agent gives immigration assistance to a person in respect of a valid application by the person for a visa of a particular class; and

                     (b)  the agent later gives immigration assistance to the person in respect of an application (the review application) by the person for review by a review authority of a decision to refuse to grant that visa;

then the review application is not to be counted for the purposes of step 1 of the method statement.

Immigration assistance in a prescribed capacity

             (4)  An application of a kind covered by step 1 of the method statement is not to be counted if the agent gave the immigration assistance in a prescribed capacity.

Minister to have regard to any matter prescribed by the regulations

             (5)  In deciding whether or not to refer a registered migration agent to the Migration Agents Registration Authority under this section, the Minister must have regard to any matter prescribed by the regulations.

306AD  Ministerial determinations

Period for making applications

             (1)  The Minister may, by writing, determine a period for the purposes of step 1 of the method statement in section 306AC.

Minimum number of applications

             (2)  The Minister may, by writing, determine a number for the purposes of step 2 of that method statement.

Refusal percentage

             (3)  The Minister may, by writing, determine a percentage for a specified class of visa for the purposes of step 4 of that method statement.

Disallowable instruments

             (4)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

306AE  Registered migration agent may make submissions

             (1)  If the Minister is considering referring a registered migration agent to the Migration Agents Registration Authority under section 306AC, the Minister must give the agent a written notice:

                     (a)  stating that the Minister is considering making such a decision and the reasons for it; and

                     (b)  inviting the agent to make a written submission to the Minister:

                              (i)  on the reasons for the agent having a high visa refusal rate in relation to the class of visa concerned; and

                            (ia)  on the disciplinary action that may be taken against the agent if the Minister decides to refer the agent; and

                             (ii)  on any other matter the agent considers relevant; and

                     (c)  stating that any submission must be made within the period (the objection period) of 21 days after the notice is given.

Extension

             (2)  Before the end of the objection period, the agent may, by notice in writing, request an extension of that period.

             (3)  The Minister must grant an extension of 14 days if the notice contains reasons for the request.

Minister to consider any submission

             (4)  The Minister must consider any written submission received within the objection period (or that period as extended).

306AF  Notice of referral decision under section 306AC

Notice to Migration Agents Registration Authority

             (1)  The Minister must give the Migration Agents Registration Authority written notice of a decision under section 306AC to refer a registered migration agent to the Authority.

             (2)  The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.

          (2A)  The notice must be accompanied by a copy of any submission made to the Minister under subsection 306AE(1).

Notice to agent

             (3)  The Minister must give the registered migration agent written notice of the decision to refer him or her to the Authority.

             (4)  The notice must be given to the agent on the same day that notice of the referral is given to the Authority.

             (5)  The notice given to the agent must set out the grounds for the referral.

306AG  Migration Agents Registration Authority’s decision after a referral under section 306AC

             (1)  If the Minister refers a registered migration agent to the Migration Agents Registration Authority under section 306AC, the Authority must:

                     (a)  caution the agent; or

                     (b)  suspend the agent’s registration; or

                     (c)  cancel the agent’s registration; or

                     (d)  decide not to discipline the agent if the Authority is satisfied that there are special circumstances that justify it making the decision.

Findings of fact

             (2)  In making its decision under subsection (1), the Authority must take the findings of fact made by the Minister in relation to the decision to refer the agent to be correct.

Matters Authority must take into account

             (3)  The Authority must take only the following matters into account in making its decision under subsection (1):

                     (a)  any written submission made to the Minister under subsection 306AE(1) by the agent;

                     (b)  the findings of fact made by the Minister in relation to the decision to refer the agent;

                     (c)  the grounds given by the Minister for the decision to refer the agent.

Natural justice hearing rule

             (4)  This section, section 306AE and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.

Note:          Section 306AE requires the Minister to give the agent an opportunity to make a submission before the Minister refers the agent. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.

Time of decision

             (5)  The Authority must make its decision under subsection (1) as soon as possible, but not later than 28 days, after receiving notice of the referral.

Note:          Section 494C sets out when the Authority is taken to have received notice of the referral.

Notice to agent

             (6)  The Authority must give the agent written notice of its decision. The notice must set out the reasons for the decision.

             (7)  The decision takes effect at the time the agent is given written notice of it.

Note:          Section 332H sets out when the agent is taken to have been given the notice.

Decision to take no disciplinary action

             (8)  If the Authority decides not to discipline the agent, the Authority must give the Minister written notice of its decision. The notice must set out the reasons for the decision. It must be given to the Minister on the same day that notice of the decision is given to the agent.

306AGAA  Minister may refer agent again if Migration Agents Registration Authority takes no disciplinary action

             (1)  If the Migration Agents Registration Authority decides not to discipline a registered migration agent under section 306AG, the Minister must decide whether or not to refer the agent to the Authority for disciplinary action under section 306AGAC.

Minister to consider Authority’s reasons

             (2)  In making his or her decision, the Minister must consider the reasons given by the Authority for its decision not to discipline the agent.

Minister must invite and consider submissions from agent

             (3)  If the Minister is considering referring the agent to the Authority for disciplinary action, the Minister must give the agent a written notice:

                     (a)  stating that the Minister is considering making such a decision and the reasons for it; and

                     (b)  inviting the agent to make a written submission to the Minister:

                              (i)  in relation to the reasons given by the Authority for its decision not to discipline the agent; and

                             (ii)  on the disciplinary action to be taken against the agent if the Minister decides to refer the agent; and

                            (iii)  on any other matter the agent considers relevant; and

                     (c)  stating that any submission must be made within the period (the objection period) of 14 days after the notice is given.

             (4)  Before the end of the objection period, the agent may, by notice in writing, request an extension of that period.

             (5)  The Minister must grant an extension of 14 days if the notice contains reasons for the request.

             (6)  The Minister must consider any written submission received within the objection period (or that period as extended).

             (7)  The Minister must also consider any written submission made to him or her under subsection 306AE(1) in relation to his or her decision to refer the agent to the Authority under section 306AC.

Minister’s decision to refer agent

             (8)  After considering the matters mentioned in subsections (2), (6) and (7), the Minister may refer the agent to the Authority for disciplinary action.

Note 1:       If the Minister refers the agent, the Authority must discipline the agent: see section 306AGAC.

Note 2:       The Minister’s decision and the Authority’s decision are reviewable by the Administrative Appeals Tribunal: see section 306AJ.

306AGAB  Notice of referral decision under section 306AG

Notice to Migration Agents Registration Authority

             (1)  The Minister must give the Migration Agents Registration Authority written notice of a decision under section 306AGAA to refer a registered migration agent to the Authority for disciplinary action.

             (2)  The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.

             (3)  The notice must be accompanied by a copy of any submission made to the Minister under subsection 306AGAA(3).

Notice to agent

             (4)  The Minister must give the agent written notice of the decision to refer him or her to the Authority for disciplinary action.

             (5)  The notice must be given to the agent on the same day that notice of the referral is given to the Authority.

             (6)  The notice given to the agent must set out the grounds for the referral.

306AGAC  Migration Agents Registration Authority’s disciplinary decision after a referral under section 306AGAA

             (1)  If the Minister refers a registered migration agent to the Migration Agents Registration Authority under section 306AGAA for disciplinary action, the Authority must:

                     (a)  caution the agent; or

                     (b)  suspend the agent’s registration; or

                     (c)  cancel the agent’s registration.

Findings of fact

             (2)  In making its decision, the Authority must take the findings of fact made by the Minister in relation to the following decisions (the referral decisions) to be correct:

                     (a)  the decision to refer the agent under section 306AC;

                     (b)  the decision to refer the agent under section 306AGAA.

Matters Authority must take into account

             (3)  The Authority must take only the following matters into account in making its decision under subsection (1):

                     (a)  any written submission made to the Minister under subsection 306AE(1) or 306AGAA(3) by the agent;

                     (b)  the findings of fact made by the Minister in relation to the referral decisions;

                     (c)  the grounds given by the Minister for the referral decisions.

Natural justice hearing rule

             (4)  This section, section 306AGAA and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.

Note:          Section 306AGAA requires the Minister to give the agent an opportunity to make a submission before the Minister refers the agent for disciplinary action. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.

Time of decision

             (5)  The Authority must make its decision under subsection (1) as soon as possible, but not later than 28 days, after receiving notice of the referral.

Note:          Section 494C sets out when the Authority is taken to have received notice of the referral.

Notice to agent

             (6)  The Authority must give the agent written notice of its decision. The notice must set out the reasons for the decision.

             (7)  The decision takes effect at the time the agent is given written notice of it.

Note:          Section 332H sets out when the agent is taken to have been given the notice.

306AGA  Cautions or suspensions

Cautions

             (1)  If the Migration Agents Registration Authority cautions a registered migration agent under section 306AG or 306AGAC, the Authority may set one or more conditions for the lifting of the caution.

Note:          Particulars of cautions are shown on the Register: see section 287.

Suspensions

             (2)  If the Authority suspends a registered migration agent’s registration under section 306AG or 306AGAC, the Authority may:

                     (a)  set a period of suspension of not more than 5 years; or

                     (b)  set a condition or conditions for the lifting of the suspension.

             (3)  If 2 or more conditions are set under paragraph (2)(b), one of them may be that at least a set period of suspension has ended.

Subdivision DReview

306AJ  Review by the Administrative Appeals Tribunal

             (1)  An application may be made to the Administrative Appeals Tribunal for review of a referral decision or a mandatory decision.

Timing rules for review of a referral decision

             (2)  However, an application for review of a referral decision may only be made:

                     (a)  if a mandatory decision is made as a result of the referral decision; and

                     (b)  within the period within which an application for review of the mandatory decision may be made.

             (3)  Accordingly, paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 does not apply to an application for review of a referral decision.

306AK  Stay orders

                   If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 306AG or 306AGAC to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.

Subdivision EMaking disciplinary details available

306AL  Making disciplinary details publicly available

             (1)  If a registered migration agent is given notice of a mandatory decision, then the Migration Agents Registration Authority:

                     (a)  must as soon as possible make available in the prescribed way a statement that:

                              (i)  sets out the mandatory decision; and

                             (ii)  sets out the referral decision to which the mandatory decision relates; and

                            (iii)  specifies the grounds for the referral decision; and

                     (b)  may prepare a statement about the mandatory decision and the referral decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the mandatory decision or the referral decision.

Content of statement

             (3)  A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Protection from civil proceedings

             (4)  No action or other proceeding for damages lies against a person for publishing in good faith:

                     (a)  a copy of; or

                     (b)  an extract from; or

                     (c)  a summary of;

a statement under this section.

306AM  Providing disciplinary details to clients

             (1)  If the Migration Agents Registration Authority makes a mandatory decision in relation to a registered migration agent, the Authority or the Secretary may inform one or more of the clients of the agent about any one or more of the following:

                     (a)  the making of the mandatory decision;

                     (b)  the making of the referral decision that resulted in the making of the mandatory decision;

                     (c)  whether or not the agent has applied for review of the referral decision or the mandatory decision;

                     (d)  the status of any such review.

             (3)  In this section:

client has the meaning given by section 306C.

76  Division 3A of Part 3 (heading)

Repeal the heading, substitute:

Division 3ADocuments relating to clients of inactive migration agents and deceased migration agents

77  Paragraph 306A(a)

After “inactive” (first occurring), insert “migration”.

78  Paragraph 306A(b)

After “deceased”, insert “migration”.

79  Paragraph 306A(c)

After “obtain”, insert “originals or”.

80  Paragraph 306A(c)

After “inactive”, insert “migration”.

81  Paragraph 306A(c)

After “deceased”, insert “migration”.

82  Paragraph 306A(d)

After “give the”, insert “originals or”.

83  Paragraph 306B(a)

After “registered” (first occurring), insert “migration”.

Note:       The heading to section 306B is altered by inserting “migration” after “Inactive”.

84  Subparagraph 306B(a)(i)

After “inactive”, insert “migration”.

85  Subparagraph 306B(a)(ii)

After “inactive”, insert “migration”.

86  Subparagraph 306B(a)(ii)

After “registered”, insert “migration”.

87  Subparagraph 306B(b)(i)

After “inactive”, insert “migration”.

88  Subparagraph 306B(b)(ii)

After “inactive”, insert “migration”.

89  Subparagraph 306B(b)(ii)

After “registered”, insert “migration”.

90  Paragraph 306B(c)

After “section 303”, insert “, 306AG or 306AGAC”.

91  Subparagraph 306B(c)(i)

After “inactive”, insert “migration”.

92  Subparagraph 306B(c)(ii)

After “inactive”, insert “migration”.

93  Paragraph 306B(d)

After “section 303”, insert “, 306AG or 306AGAC”.

94  Subparagraph 306B(d)(i)

After “inactive”, insert “migration”.

95  Subparagraph 306B(d)(ii)

After “inactive”, insert “migration”.

96  Paragraph 306B(e)

After “registered”, insert “migration”.

97  Subparagraph 306B(e)(i)

After “inactive”, insert “migration”.

98  Subparagraph 306B(e)(ii)

After “inactive”, insert “migration”.

99  Section 306C

Repeal the section, substitute:

306C  Clients

                   For the purposes of this Division, if a registered migration agent gave, or anticipated giving, immigration assistance to another person:

                     (a)  the other person is a client of the registered migration agent and, if the registered migration agent dies, the other person remains a client of the deceased registered migration agent; and

                     (b)  if the registered migration agent becomes an inactive migration agent—the other person remains a client of the inactive migration agent and, if the inactive migration agent dies, the other person remains a client of the deceased inactive migration agent.

100  Subsection 306D(1)

After “inactive” (first occurring), insert “migration”.

Note:       The heading to section 306D is replaced by the heading “Power to obtain documents from inactive migration agent”.

101  Paragraph 306D(1)(a)

After “inactive”, insert “migration”.

102  Paragraph 306D(1)(a)

After “registered”, insert “migration”.

103  Paragraph 306D(1)(b)

After “inactive”, insert “migration”.

104  Subsection 306D(2)

Repeal the subsection, substitute:

             (2)  The Migration Agents Registration Authority may, by written notice given to the inactive migration agent, require him or her:

                     (a)  to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

                     (b)  to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the agent by, or on behalf of, those clients.

Note:          An example of a document provided to a registered migration agent is a client’s passport.

105  At the end of section 306D

Add:

Note:          Section 332H sets out when the inactive migration agent is taken to have been given the notice.

106  Subsection 306E(1)

After “inactive” (wherever occurring), insert “migration”.

Note:       The heading to section 306E is replaced by the heading “Power to obtain documents from representative of deceased inactive migration agent”.

107  Paragraph 306E(1)(a)

After “registered”, insert “migration”.

108  Paragraphs 306E(2)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

                     (b)  to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.

109  At the end of subsection 306E(2)

Add:

Note:          An example of a document provided to a registered migration agent is a client’s passport.

110  At the end of section 306E

Add:

Note:          Section 332H sets out when the legal personal representative is taken to have been given the notice.

111  Subsection 306F(1)

After “registered” (wherever occurring), insert “migration”.

Note:       The heading to section 306F is replaced by the heading “Power to obtain documents from representative of deceased registered migration agent”.

112  Paragraphs 306F(2)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

                     (b)  to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.

113  At the end of subsection 306F(2)

Add:

Note:          An example of a document provided to a registered migration agent is a client’s passport.

114  At the end of section 306F

Add:

Note:          Section 332H sets out when the legal personal representative is taken to have been given the notice.

115  Subsection 306H(1) (penalty)

Omit “30”, substitute “60”.

116  Section 306J

Repeal the section, substitute:

306J  Self‑incrimination

             (1)  An individual is not excused from producing a document under section 306D, 306E or 306F on the ground that the production of the document may tend to incriminate the individual or expose the individual to a penalty.

             (2)  However:

                     (a)  any document so produced; and

                     (b)  any information or thing (including any document) obtained as a direct or indirect result of a document so produced;

is not admissible in evidence against the individual in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

117  Paragraph 306K(1)(a)

Omit “a copy of”.

Note:       The heading to section 306K is altered by omitting “copies of”.

118  Paragraphs 306K(1)(a) and (b)

After “inactive”, insert “migration”.

119  Paragraph 306K(1)(c)

Repeal the paragraph, substitute:

                     (c)  give the document to:

                              (i)  the client; or

                             (ii)  if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and

120  Paragraph 306K(1)(d)

After “registered”, insert “migration”.

121  Paragraph 306K(2)(a)

Omit “a copy of”.

122  Subparagraph 306K(2)(a)(i)

After “inactive”, insert “migration”.

123  Subparagraph 306K(2)(a)(ii)

After “registered”, insert “migration”.

124  Paragraph 306K(2)(b)

After “deceased”, insert “migration”.

125  Paragraph 306K(2)(c)

Repeal the paragraph, substitute:

                     (c)  give the document to:

                              (i)  the client; or

                             (ii)  if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and

126  Paragraph 306K(2)(d)

After “registered”, insert “migration”.

127  Subsection 308(1)

After “registered”, insert “migration”.

Note:       The heading to section 308 is altered by inserting “migration” after “registered”.

128  Paragraph 308(1)(b)

After “individual”, insert “or individuals”.

129  Subsection 308(2)

Repeal the subsection, substitute:

             (2)  If a registered migration agent appears before one individual to answer questions, that individual must record the questions and answers and give the record to the Authority.

          (2A)  If a registered migration agent appears before 2 or more individuals to answer questions, one of them must record the questions and answers and give the record to the Authority.

130  Subsection 308(3)

After “registered”, insert “migration”.

131  Subsection 308(4)

After “registered”, insert “migration”.

132  Subsection 309(1)

Omit “the Board”, substitute “it”.

133  Subsection 309(2)

Omit “the cancellation or suspension of a registered agent’s registration, or the cautioning of the agent,”, substitute “making a decision under section 303 to cancel or suspend a registered migration agent’s registration, or to caution such an agent,”.

134  Division 4A of Part 3 (heading)

Repeal the heading, substitute:

Division 4ADisciplining former registered migration agents

Subdivision AComplaints about provision of immigration assistance

135  Subsection 311A(1)

After “registered” (wherever occurring), insert “migration”.

Note:       The heading to section 311A is altered by inserting “migration” after “former registered”.

136  Subsection 311A(1) (note)

After “registered”, insert “migration”.

137  Sections 311B and 311C

Repeal the sections, substitute:

311B  Notice of disciplinary decision

Notice to former agent

             (1)  The Migration Agents Registration Authority must give a former registered migration agent written notice of a decision made under section 311A in relation to the former agent.

             (2)  The notice must set out the reasons for the decision and the period that the former agent is barred from being a registered migration agent.

When decision takes effect

             (3)  The decision takes effect at the time the former agent is given written notice of it.

Note:          Section 332H sets out when the former agent is taken to have been given the notice.

311C  Making disciplinary details publicly available

             (1)  If a former registered migration agent is given notice of a decision under section 311A, then the Migration Agents Registration Authority:

                     (a)  must as soon as possible make available in the prescribed way a statement that sets out the decision and specifies the grounds for the decision; and

                     (b)  may prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the decision.

Content of statement

             (3)  A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Protection from civil proceedings

             (4)  No action or other proceeding for damages lies against a person for publishing in good faith:

                     (a)  a copy of; or

                     (b)  an extract from; or

                     (c)  a summary of;

a statement under this section.

138  Subsection 311D(1)

After “registered”, insert “migration”.

Note:       The heading to section 311D is altered by inserting “migration” after “registered”.

139  At the end of subsection 311D(1)

Add:

Note:          Section 332H sets out when the former agent is taken to have been given the notice.

140  Paragraph 311D(4)(b)

After “registered”, insert “migration”.

141  After section 311E

Insert:

311EA  Requiring former registered migration agents to give information or documents

             (1)  This section applies if the Migration Agents Registration Authority is considering making a decision under section 311A to bar a former registered migration agent from being a registered migration agent for a period.

             (2)  The Authority may, by written notice given to the former agent, require him or her to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner.

             (3)  A period specified in a notice under this section must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the former agent is taken to have been given the notice.

Offence

             (4)  A person commits an offence if:

                     (a)  the person is subject to a requirement under this section; and

                     (b)  the person contravenes the requirement.

Penalty:  60 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Self‑incrimination

             (6)  A person is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.

             (7)  However:

                     (a)  any information or document provided in response to a requirement under subsection (2); and

                     (b)  any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (2);

is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

142  At the end of Division 4A of Part 3

Add:

Subdivision BEngaging in vexatious activity

311G  Definitions

                   In this Subdivision:

mandatory decision means a decision of the Migration Agents Registration Authority under section 311L.

referral decision means a decision of the Minister under section 311H.

311H  Minister may refer former registered migration agent for disciplinary action

             (1)  The Minister may refer a former registered migration agent to the Migration Agents Registration Authority for disciplinary action if, in relation to his or her provision of immigration assistance while he or she was a registered migration agent, he or she had a high visa refusal rate in relation to a visa of a particular class.

Note 1:       If the Minister is considering doing so, the Minister must invite the former agent to make a submission on the matter and must consider any submission that is made: see section 311J.

Note 2:       If the Minister does refer a former agent, the Authority must discipline the former agent: see section 311L.

Note 3:       The Minister’s decision and the Authority’s decision are reviewable by the Administrative Appeals Tribunal: see section 311M.

             (2)  In deciding whether or not to refer a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Minister must have regard to any matter prescribed by the regulations.

311J  Former registered migration agent may make submissions

             (1)  If the Minister is considering referring a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Minister must give the former agent a written notice:

                     (a)  stating that the Minister is considering making such a decision and the reasons for it; and

                     (b)  inviting the former agent to make a written submission to the Minister:

                              (i)  on the reasons for the former agent having a high visa refusal rate in relation to the class of visa concerned; and

                            (ia)  on the period the former agent is to be barred from being a registered migration agent if the Minister decides to refer the former agent; and

                             (ii)  on any other matter the former agent considers relevant; and

                     (c)  stating that any submission must be made within the period (the objection period) of 21 days after the notice is given.

Extension

             (2)  Before the end of the objection period, the former agent may, by notice in writing, request an extension of that period.

             (3)  The Minister must grant an extension of 14 days if the notice contains reasons for the request.

Minister to consider any submission

             (4)  The Minister must consider any written submission received within the objection period (or that period as extended).

311K  Notice of referral decision

Notice to Migration Agents Registration Authority

             (1)  The Minister must give the Migration Agents Registration Authority written notice of a decision to refer a former registered migration agent to the Authority for disciplinary action.

             (2)  The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.

          (2A)  The notice must be accompanied by a copy of any submission made to the Minister under subsection 311J(1).

Notice to former agent

             (3)  The Minister must give the former registered migration agent written notice of the decision to refer him or her to the Authority for disciplinary action.

             (4)  The notice must be given to the former agent on the same day that notice of the referral is given to the Authority.

             (5)  The notice given to the former agent must set out the grounds for the referral.

311L  Taking of disciplinary action

             (1)  If the Minister refers a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Authority must bar him or her from being a registered migration agent for a period of not more than 5 years starting on the day that the Authority’s decision takes effect.

Findings of fact

             (2)  In making its decision, the Authority must take the findings of fact made by the Minister in relation to the referral decision to be correct.

Matters Authority must take into account

             (3)  The Authority must take only the following matters into account in making its decision under subsection (1):

                     (a)  any written submission made to the Minister under subsection 311J(1) by the former agent;

                     (b)  the findings of fact made by the Minister in relation to the referral decision;

                     (c)  the grounds given by the Minister for the referral decision.

Natural justice hearing rule

             (4)  This section, section 311J and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.

Note:          Section 311J requires the Minister to give the former agent an opportunity to make a submission before the Minister refers the former agent for disciplinary action. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.

Time of decision

             (5)  The Authority must make its decision under subsection (1) as soon as possible, but not later than 14 days, after receiving notice of the referral.

Note:          Section 494C sets out when the Authority is taken to have received notice of the referral.

Notice to agent

             (6)  The Authority must give the former agent written notice of its decision. The notice must set out the reasons for the decision.

             (7)  The decision takes effect at the time the former agent is given written notice of it.

Note:          Section 332H sets out when the former agent is taken to have been given the notice.

311M  Review by the Administrative Appeals Tribunal

                   An application may be made to the Administrative Appeals Tribunal for review of a referral decision or a mandatory decision.

311P  Making disciplinary details publicly available

             (1)  If a former registered migration agent is given notice of a mandatory decision, then the Migration Agents Registration Authority:

                     (a)  must as soon as possible make available in the prescribed way a statement that:

                              (i)  sets out the mandatory decision; and

                             (ii)  sets out the referral decision to which the mandatory decision relates; and

                            (iii)  specifies the grounds for the referral decision; and

                     (b)  may prepare a statement about the mandatory decision and the referral decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the mandatory decision or the referral decision.

Content of statement

             (3)  A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Protection from civil proceedings

             (4)  No action or other proceeding for damages lies against a person for publishing in good faith:

                     (a)  a copy of; or

                     (b)  an extract from; or

                     (c)  a summary of;

a statement under this section.

143  Division 5 of Part 3 (heading)

Repeal the heading, substitute:

Division 5Obligations of registered migration agents

144  Subsection 312(1)

After “registered”, insert “migration”.

145  Subsection 312(1)

Omit “as soon as is reasonably possible”, substitute “in writing within 14 days”.

146  After paragraph 312(1)(e)

Insert:

                    (ea)  if he or she paid, in relation to his or her current period of registration, the charge payable under regulation 5 of the Migration Agents Registration Application Charge Regulations 1998—he or she begins to give immigration assistance:

                              (i)  on a commercial, or for‑profit, basis; or

                             (ii)  as a member of, or a person associated with, an organisation that operates on a commercial, or for‑profit, basis;

147  After paragraph 312(1)(f)

Insert:

                    (fa)  he or she becomes a member of a partnership and will give immigration assistance in that capacity;

148  At the end of section 312

Add:

             (3)  The day on which the event mentioned in paragraph (1)(ea) occurs is to be worked out in accordance with the Migration Agents Registration Application Charge Regulations 1998.

149  After section 312

Insert:

312A  Notification of giving of immigration assistance to visa applicants

             (1)  If:

                     (a)  a registered migration agent gives immigration assistance to a visa applicant in relation to the visa application; and

                     (b)  the agent gives the assistance after having agreed to represent the applicant;

the agent must notify the Department in accordance with the regulations and within the period worked out in accordance with the regulations.

Penalty:  60 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

312B  Notification of giving of immigration assistance to review applicants

             (1)  If:

                     (a)  a registered migration agent gives immigration assistance to a person in respect of a review application made by the person; and

                     (b)  the agent gives the assistance after having agreed to represent the person;

the agent must notify the review authority concerned in accordance with the regulations and within the period worked out in accordance with the regulations.

Penalty:  60 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  In this section:

review application means an application for review by a review authority of a decision to refuse to grant a person a visa.

150  Subsection 313(1A)

Repeal the subsection.

151  Subsection 313(1)

After “registered”, insert “migration”.

152  Subsection 313(1)

Omit “an assisted person”, substitute “another person (the assisted person)”.

153  Paragraph 313(3)(a)

After “registered”, insert “migration”.

154  Paragraph 313(3)(c)

Omit “28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship that the immigration assistance related to”, substitute “the period worked out in accordance with the regulations”.

155  Subsection 314(2)

After “registered”, insert “migration”.

156  Subsection 316(1)

After “registered” (wherever occurring), insert “migration”.

157  Subsection 316(1A)

After “registered”, insert “migration”.

158  Subsection 316(1B)

After “registered” (wherever occurring), insert “migration”.

159  Section 318

After “registered”, insert “migration”.

160  Subsection 319(1)

After “registered” (wherever occurring), insert “migration”.

161  Subsection 319(2)

After “registered”, insert “migration”.

Note:       The heading to subsection 319(2) is altered by inserting “migration” after “registered”.

162  Subsection 319(2) (note)

After “registered” (wherever occurring), insert “migration”.

163  Subsection 319(3)

After “registered”, insert “migration”.

Note:       The heading to subsection 319(3) is altered by inserting “migration” after “registered”.

164  Subsection 319(3) (note)

After “registered” (wherever occurring), insert “migration”.

165  After section 319

Insert:

319A  Institute may delegate powers and functions

             (1)  While the Institute is appointed under section 315, the Institute may, by writing, delegate any or all of the Migration Agents Registration Authority’s functions or powers under this Part to:

                     (a)  a committee of the Institute; or

                     (b)  an officer of the Institute; or

                     (c)  an employee of the Institute.

Directions

             (2)  In performing a delegated function or exercising a delegated power, a delegate must comply with any written directions given by the Institute.

How committee to perform function or exercise power

             (3)  A function or power so delegated to a committee may be performed or exercised by a majority of the members of the committee and may not otherwise be performed or exercised under the delegation.

Note:       The heading to section 320 is altered by omitting “Delegation of” and substituting “Minister may delegate”.

166  After section 321

Insert:

321A  Disclosure of personal information by the Migration Agents Registration Authority

             (1)  The Migration Agents Registration Authority may disclose personal information about a registered migration agent, or an inactive migration agent, to any of the following (the recipient):

                     (a)  the Secretary or an authorised officer;

                     (b)  a review authority.

             (2)  However, the Authority may do so only in the prescribed circumstances.

             (3)  The regulations may prescribe circumstances in which the recipient may use or disclose personal information disclosed under subsection (1).

             (4)  In this section:

inactive migration agent has the meaning given by section 306B.

personal information has the same meaning as in the Privacy Act 1988.

167  Division 6A of Part 3 (heading)

Repeal the heading, substitute:

Division 6ARegistration application fees and registration status charges

168  Section 332A

Repeal the section, substitute:

332A  Collection of registration status charge

When charge due and payable

             (1)  Registration status charge is due and payable at the time worked out in accordance with a written determination made by the Migration Agents Registration Authority.

Disallowable instrument

             (2)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Recovery of charge

             (3)  Registration status charge that has become due for payment may be recovered by the Migration Agents Registration Authority, on behalf of the Commonwealth, as a debt due to the Commonwealth.

169  After subsection 332B(1)

Insert:

          (1A)  There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration status charges collected (including amounts recovered under section 332A) while an instrument under section 315 appointing the Institute is in force.

170  At the end of Part 3

Add:

Division 7Other things

332C  Removing disciplinary details—registered migration agents

             (1)  The Migration Agents Registration Authority must remove any of the following details that are made available by electronic means under this Part:

                     (a)  any statement relating to the cancellation or suspension of a registered migration agent’s registration;

                     (b)  any statement about the cautioning of such an agent.

Time for removal

             (2)  The Authority must remove the details within the period worked out in accordance with the regulations.

             (3)  The regulations may prescribe different periods in relation to details about cancellations, suspensions or cautions.

332D  Removing disciplinary details—former registered migration agents

             (1)  The Migration Agents Registration Authority must remove any statement that is made available by electronic means under section 311C or 311P.

             (2)  The Authority must remove the statement within the period worked out in accordance with the regulations.

332E  Protection from civil proceedings

Complaints about registered migration agents

             (1)  No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

                     (a)  the making of a complaint to the Migration Agents Registration Authority in relation to the provision of immigration assistance by a registered migration agent;

                     (b)  the making of a statement to, or the giving of a document or information to, the Authority in connection with the investigation of such a complaint.

Complaints about persons who are not registered migration agents

             (2)  No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

                     (a)  the making of a complaint to the Department in relation to the provision of immigration assistance by a person who is not a registered migration agent;

                     (b)  the making of a statement to, or the giving of a document or information to, the Department in connection with the investigation of such a complaint;

                     (c)  the investigation of such a complaint.

Institute etc.

             (3)  The Institute, or an officer or employee of the Institute, is not liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:

                     (a)  the performance or purported performance of any function conferred on the Migration Agents Registration Authority under this Part;

                     (b)  the exercise or purported exercise of any power conferred on the Authority under this Part.

Commonwealth etc.

             (4)  None of the following:

                     (a)  the Commonwealth;

                     (b)  the Minister;

                     (c)  an officer;

                     (d)  any other person;

is liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:

                     (e)  the performance or purported performance of any function conferred on the Minister under this Part;

                      (f)  the exercise or purported exercise of any power conferred on the Minister under this Part.

332F  Disclosure of personal information by the Secretary

             (1)  The Secretary may disclose personal information about a registered migration agent, or an inactive migration agent, to a review authority.

             (2)  However, the Secretary may do so only in the prescribed circumstances.

             (3)  The regulations may prescribe circumstances in which the review authority may use or disclose personal information disclosed under subsection (1).

             (4)  In this section:

inactive migration agent has the meaning given by section 306B.

personal information has the same meaning as in the Privacy Act 1988.

332G  Disclosure of personal information by a review authority

Discretionary disclosure

             (1)  A review authority may disclose personal information about a registered migration agent, or an inactive migration agent, to the Secretary or an authorised officer.

             (2)  However, a review authority may do so only in the prescribed circumstances.

             (3)  The regulations may prescribe circumstances in which the Secretary or authorised officer may use or disclose personal information disclosed under subsection (1).

Mandatory disclosure

             (4)  If a registered migration agent notifies a review authority that the agent has given immigration assistance to a person in respect of a review application made by the person, the review authority must notify the Department, in accordance with the regulations, that the agent has given immigration assistance to the person in respect of the review application.

Definitions

             (5)  In this section:

inactive migration agent has the meaning given by section 306B.

personal information has the same meaning as in the Privacy Act 1988.

review application means an application for review by a review authority of a decision to refuse to grant a person a visa.

332H  Giving of notices under this Part

             (1)  If a provision of this Part requires or permits the Migration Agents Registration Authority to give a notice to a person (the recipient):

                     (a)  the Authority must give the notice to the recipient by 1 of the 4 methods set out in the following table; and

                     (b)  the time at which the recipient is taken to have been given the notice is the time set out in the table.

 

Giving of notices under this Part

Item

Methods of giving notices

Timing rule

1

Handing the notice to the recipient

When it is handed to the recipient

2

Handing the notice to another person who:

(a) is at the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices; and

(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c) appears to be at least 16 years of age

When it is handed to the other person

3

Dating the notice, and then dispatching it:

(a) within 3 working days (in the place of dispatch) of the date of the notice; and

(b) by prepaid post or by other prepaid means; and

(c) to:

(i) the last address for service provided to the Authority by the recipient for the purposes of receiving notices; or

(ii) the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices

(a) if the notice was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the notice; or

(b) in any other case—21 days after the date of the notice

4

Transmitting the notice by:

(a) fax; or

(b) e‑mail; or

(c) other electronic means;

to the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Authority by the recipient for the purposes of receiving notices

At the end of the day on which the notice is transmitted

             (2)  This section has effect despite any provision in the Electronic Transactions Act 1999.

171  After paragraph 504(1)(j)

Insert:

                     (ja)  enabling a person who is alleged to have committed an offence against subsection 280(1) to pay to the Commonwealth, as an alternative to prosecution, a penalty of 12 penalty units; and


 

Part 2Application and transitional provisions

172  Application—relation by employment

The amendments made by items 9 and 10 apply in relation to the consideration of registration applications made after the commencement of those items (regardless of whether the engagements occurred before or after that commencement).

173  Application—infringement notices

The amendments made by items 13 and 171 apply in relation to all offences (whether alleged to have been committed before or after those items commence) in respect of which no penalty has been imposed at the time of that commencement.

173A  Application—list of former registered migration agents

The amendment made by item 38A applies in relation to persons ceasing to be registered migration agents either before or after the commencement of that item.

174  Application—removal of disciplinary details

The amendment made by item 39 applies in relation to details entered on the Register either before or after the commencement of that item.

175  Transitional—removal of disciplinary details

(1)        This item applies in relation to:

                     (a)  particulars of a caution given to a registered migration agent that had been on the Register for at least 12 months before the commencement of this item; and

                     (b)  particulars of a suspension of a registered migration agent’s registration that had been on the Register for at least 5 years before the commencement of this item.

(2)        The Migration Agents Registration Authority must remove the particulars from the Register within 28 days after the commencement of this item.

175A  Application—proceedings finalised about previous registration

Subsection 288(6A) of the Migration Act 1958, as inserted by item 40, applies in relation to suspension or cancellation decisions made after the commencement of that item.

176  Application—withdrawal of applications

Subsection 288(7) of the Migration Act 1958, as inserted by item 40, applies in relation to registration applications made either before or after the commencement of that item.

177  Application—statutory declarations and answering of questions

Section 288B of the Migration Act 1958, as inserted by item 40, applies in relation to registration applications made after the commencement of that item.

178  Application—registration requirements

The amendments made by items 47 and 48 apply in relation to registration applications made after the commencement of those items (regardless of whether the previous registration occurred before or after that commencement).

179  Application—disciplinary action

The amendments made by items 49 and 50 apply in relation to the consideration of registration applications made either before or after the commencement of those items (regardless of whether the disciplinary action occurred before or after that commencement).

179A  Application—automatic continuation of registration

The amendments made by items 46A and 63 apply in relation to expiry days that occur after the commencement of those items. However, those amendments do not apply in relation to suspension or cancellation decisions made before that commencement.

179B  Application—no registration if suspension not completed

The amendment made by item 55A applies in relation to registration applications made after the commencement of that item. However, the amendment does not apply in relation to suspension decisions made before that commencement.

179C  Application—no registration if cancellation in past 5 years

The amendment made by item 56 applies in relation to registration applications made after the commencement of that item (regardless of whether the cancellation occurred before or after that commencement).

179D  Application—professional indemnity insurance

The amendment made by item 58A applies in relation to registration applications made after the commencement of that item.

180  Application—cautions

The amendment made by item 71 applies in relation to cautions given after the commencement of that item.

181  Application—disciplinary decisions

The amendments made by items 72, 74 and 137 apply in relation to decisions made after the commencement of those items.

182  Application—informing clients about disciplinary decisions

Section 305B of the Migration Act 1958, as inserted by item 73, applies in relation to decisions made either before or after the commencement of that item.

183  Application—high visa refusal rates

The amendments made by items 75 and 142 apply in relation to applications for visas, or applications for review, made after the commencement of those items.

184  Application—production of documents

The amendments made by items 104, 108, 109, 112, 113, 116, 117, 119, 121 and 125 apply in relation to documents created either before or after the commencement of those items.

185  Application—failure to comply with notice

The amendments made by items 115 and 116 apply in relation to notices given after the commencement of those items.

186  Application—notification obligations

The amendment made by item 145 applies in relation to events occurring after the commencement of that item.

187  Application—notification of giving of immigration assistance

The amendment made by item 149 applies in relation to applications for visas, or applications for review, made after the commencement of that item.

188  Application—disclosure of personal information

(1)        The amendment made by item 166 applies in relation to information obtained either before or after the commencement of that item.

(2)        Sections 332F and 332G of the Migration Act 1958, as inserted by item 170, apply in relation to information obtained either before or after the commencement of that item.

189  Application—removal of disciplinary details

Sections 332C and 332D of the Migration Act 1958, as inserted by item 170, apply in relation to details made available by electronic means either before or after the commencement of that item.

190  Application—protection from civil proceedings

Section 332E of the Migration Act 1958, as inserted by item 170, applies in relation to acts done after the commencement of that item.

191  Application—giving of notices

Section 332H of the Migration Act 1958, as inserted by item 170, applies in relation to notices given after the commencement of that item.


 

 [Minister’s second reading speech made in—

House of Representatives on 17 September 2003

Senate on 8 October 2003]

(146/03)