This article will outline the topic of disciplining former registered migration agents under the Migration Act 1958. The Migration Act aims to protect the public from unscrupulous migration agents. One way the Act does this is by allowing the Migration Agents Registration Authority (MARA) to bar former registered migration agents from re-registration.
Read on to learn more about provisions for disciplining former registered migration agents.
Section 311A: Barring Former Registered Migration Agents From Being Registered for up to 5 Years
Section 311A of disciplining former registered migration agents allows MARA to bar a former registered migration agent. This can last for a period of up to 5 years. This can happen if MARA believes, after investigating a complaint about the former agent, that the complaint is made out.
The complaint must relate to the former agent’s provision of immigration assistance while they were a registered migration agent. Before making a decision to bar the former agent, MARA must invite them to make a submission. The period of barring can be up to 5 years starting on the day of MARA’s decision.
The Section 311A of disciplining former registered migration agents:
- Protects the public from former migration agents who have provided poor or unethical immigration assistance; and
- Ensures that the migration agent registration scheme is considered credible and trustworthy.
Section 311B: Notice of Disciplinary Decision
Section 311B sets out the requirements for giving notice to a former registered migration agent of a decision made under Section 311A. Here is a breakdown of Section 311B of disciplining registered migration agents:
1. MARA must give the former agent written notice of the decision. The notice must include the:
- Reasons for the decision; and
- Period that the former agent is barred from being a registered migration agent.
2. The decision takes effect at the time the former agent is given written notice of it.
Section 332H sets out when the former agent is taken to have been given the notice.
Section 311C: Making Disciplinary Details Publicly Available
The Section 311C of disciplining former registered migration agents outlines the requirements for making disciplinary details about former registered migration agents publicly available.
Section 311C(1) states that MARA must make a statement that sets out the decision. It should specify the grounds for the decision.
Section 311C(2) states that MARA may also prepare a statement about the decision and make it available to:
- One or more groups of persons; or
- One or more person
This could include making the statement:
- Available on MARA’s website; or
- Sending it to industry bodies or other relevant organisations.
Section 311C(3) states that a statement under this section need not:
- Set out the findings on material questions of fact; and
- Refer to the evidence or other material on which those findings were based
Lastly, Section 311C(4) provides protection from civil proceedings for people who publish a statement under this section in good faith.
Section 311D: Former Registered Migration Agent May Make a Submission Etc.
Section 311D of disciplining former registered migration agents allows a former registered migration agent to make a submission to MARA.
Moreover, Section 311D(1) states that MARA must give the former agent a written notice. This notice must state that:
- They propose to make a decision to bar them from re-registration and the reasons for the decision.
- They are inviting the former agent to make a written submission to MARA on the matter. They must make the written submission within 28 days after the notice is given. MARA must consider any written submission received within the 28-day period.
What if MARA does not receive a written submission? If this is the case, they may decide the matter based on the information before them. If MARA receives a written submission, they may either:
- Decide the matter based on the submission and the information before them; or
- Give the former agent the opportunity to appear before MARA and then decide the matter.
Section 311E: Authority Not Bound by Legal Forms Etc.
Section 311E of disciplining former registered migration agents states that MARA’s authority is not bound by legal forms.
Furthermore, Section 311E(a) states that MARA is not bound by technicalities, legal forms or rules of evidence. This means that MARA does not have to follow the same rules of evidence that a court would follow.
Section 311E(b) states that MARA must act according to substantial justice and the merits of the case. This means that MARA must make a decision that is fair and that is based on the merits of the case. MARA must consider all of the relevant factors, including the:
- Seriousness of the misconduct;
- Former agent’s previous record; and
- Likelihood of the former agent repeating the misconduct.
Section 311EA: Requiring Former Registered Migration Agents to Give Information or Documents
Section 311EA of disciplining former registered migration agents allows MARA to require a former registered migration agent to provide information or documents.
Additionally, Section 311EA(1) states that this section applies if MARA is considering making a decision under section 311A.
Section 311EA(2) states that MARA may, by written notice given to the former agent, require them to provide MARA with prescribed information or prescribed documents. The former agent must submit the information and documents within the specified period and in the specified manner.
Section 311EA(3) states that a period specified in a notice under this section must end at least 14 days after the notice was given.
Section 311EA(4) states that a person commits an offence if:
- They are subject to a requirement under this section; and
- They contravene the requirement
The penalty for this offence is 60 penalty units.
Section 311EA(5) states that an offence against subsection (4) is an offence of strict liability.
Section 311EA(6) states that a person cannot refuse to give information or provide a document because it might incriminate them. This means that the person cannot refuse to provide information or documents. This is because it might make them look guilty of a crime.
Lastly, Section 311EA(7) states that information or documents provided under section 311EA(2) cannot be used against the person in criminal proceedings.
Section 311F: Review by the Administrative Appeals Tribunal
The section states that the application must be made subject to the Administrative Appeals Tribunal Act 1975. This means that the application must comply with the rules and procedures set out in AAT Act.
The section also states that the application must be made within 28 days after the date of the decision.
Importance of Seeking Legal Advice About Disciplining Former Registered Migration Agents
Registered or debarred migration agents also have the right to seek legal help when legal matters arise. JB Solicitors has a team of experienced migration lawyers who can help you understand your rights and options. We can also represent you in any proceedings before the Administrative Appeals Tribunal.
Contact us today if you want to understand more about disciplining former registered migration agents.