In this article, we’ll explore sections 280 to 282 of the Migration Act, which provides for the rules on immigration assistance restrictions in Australia and why they are essential. We’ll also discuss the risks of using unqualified immigration assistance providers and how to protect yourself from fraud.
Navigating the Australian immigration system can be complex and daunting, even for those well-versed in the law. With its ever-changing regulations and requirements, it’s no wonder that many people turn to immigration assistance providers for help.
But what happens when those who offer immigration assistance are not qualified?
In Australia, there are strict immigration assistance restrictions and rules on who can provide such assistance. Only registered migration agents, Australian legal practitioners, and certain exempt persons can give immigration advice and representation. Those who do so without the proper qualifications are breaking the law and are subject to immigration assistance restrictions.
What Is Immigration Assistance?
The Migration Act 1958 provides that an individual is engaging in “immigration assistance” when they perform the following activities:
- Providing advice or information about visa applications, cancellations, or other migration-related matters.
- Preparing, lodging, or helping with the preparation or lodgment of visa applications or other migration-related documents.
- Representing a visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation.
Section 280: Immigration Assistance Restrictions
The law restricts persons not registered as a migration agent to give immigration assistance. The penalty for the violation of such restriction is 60 penalty units.
Section 280 lists the persons who are not prohibited or prevented from giving immigration assistance:
- Parliamentarians
- Australian legal practitioners, in connection with legal practice.
- Officials, in the course of his or her duties.
- Individuals, as long as the assistance is an act of preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations if the assistance is not given for a fee or other reward.
- Close family members
Moreover, this section does not prevent a person from giving immigration assistance to the visa applicant when it is a:
- Nomination of a visa applicant for the purposes of the regulations.
- Sponsorship of a visa applicant for the purposes of the regulations
A person assisting in his or her capacity as a member of a diplomatic mission, a consular post, or a member of an office of an international organisation has no prohibition from doing so.
Section 281: Immigration Assistance Restrictions – Charging of Fees
The Courts may impose a penalty of imprisonment for 10 years if a person who is not a registered migration agent asks for or receives any fee or other reward for giving immigration assistance. This is what section 281 of the Act prohibits.
Moreover, a person who asks or receives any fee or other reward for the giving of immigration assistance by another person who is not a registered migration agent is also punishable with the same penalty.
This section allows:
- An Australian legal practitioner from asking for or receiving a fee or other reward for giving immigration assistance in connection with legal practice; or
- A person from asking for or receiving a fee or other reward for the giving of immigration assistance by an Australian legal practitioner in connection with legal practice.
Section 282: Immigration Assistance Restrictions – Representations
Aside from the charging of fees and unauthorised giving of immigration assistance, immigration representations are only made by registered agents. Violation of this prohibition will lead to imprisonment for 10 years.
Section 282 considers a person making an act of immigration representation if he or she makes representations to or otherwise communicates with the Minister or a member of the Minister’s staff or Department on behalf of:
- A visa applicant about the application for the visa,
- A cancellation review applicant about the cancellation review application,
- A person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination,
- A person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship,
- A person who has made (or is proposing to make) a request to the Minister to exercise his or her power to:
- substitute a more favourable decision (sections 351 and 417)
- refuse or cancel a protection visa
- grant a detainee visa
- determine whether a detainee shall reside in a certain place rather than in a detention centre
- revoke or vary the residence determination, or
- A person who has made (or is proposing to make) a representation to the Minister to exercise the power to revoke a decision to refuse to grant, or to cancel, a visa (whether or not the decision relates to that person).
Get Legal Advice from a Migration Lawyer
If you are considering immigrating to Australia or if you are facing any immigration challenges, it is a good idea to consult with a qualified migration lawyer. If you are considering using immigration assistance, it is important to choose a qualified provider.
When those who offer immigration assistance in Australia are not qualified, it can have serious consequences for their clients. These consequences can include:
- Visa applications being rejected. Unqualified immigration assistance providers may not be familiar with the latest immigration laws and regulations, which can lead to the DHA rejecting visa applications. This can be a costly and time-consuming setback for clients.
- Clients being misled or misinformed. Inaccurate or misleading information regarding the Australian immigration system may be provided to customers by unqualified immigration aid providers. This may cause clients to make choices that are not best for them.
- Clients being exposed to fraud. These agents may extort money out of their clients or even steal it. They could also exaggerate their capacity to assist consumers in obtaining Australian immigration by making untrue promises.
- Clients being deported. If the DHA rejects a client’s visa application or they find false or misleading information, they can deport them from Australia. This can have a devastating impact on their lives and the lives of their families.
In addition to the consequences for clients, unqualified immigration assistance providers can also face serious penalties themselves. As discussed in this article, it is a criminal offence to provide immigration assistance without being qualified to do so. Parties providing unqualified immigration assistance can receive fines, imprisonment, or both.
At JB Solicitors, our migration lawyers are qualified to provide immigration assistance and advice on other legal matters you may need throughout your visa application.
Contact us today if you want to know more about immigration assistance restrictions.
