What are the obligations of registered migration agents under the Migration Act 1958? In Australia, registered migration agents are professionals who have authority to provide immigration advice and assistance. The Office of the Migration Agents Registration Authority (OMARA) regulates these professionals.
The OMARA is the regulatory body responsible for ensuring that migration agents meet the necessary standards of professionalism and ethical conduct. Under the Migration Act, a registered migration agent is someone who is registered with the OMARA. They must:
- Have a sound knowledge of Australian migration law and procedures; and
- Adhere to a Code of Conduct that governs their behaviour and obligations towards their clients.
Read on to know more about the obligations of registered migration agents under the Migration Act.
Section 312: Notification Obligations
Section 312 of the obligations of registered migration agents outlines their notification obligations. Let’s break it down. A registered migration agent must inform the Migration Agents Registration Authority (MARA) in writing within 14 days if any of the following events occur:
- The agent becomes bankrupt.
- The agent applies for relief under bankruptcy or insolvency laws.
- The agent enters into a compromise or arrangement with their creditors.
- The agent assigns their remuneration for the benefit of their creditors.
- The agent is convicted of an offence under Australian federal or state laws.
- If the agent paid a non-commercial application charge for their current registration period, they start providing immigration assistance on a commercial basis during that period.
- The agent becomes an employee or changes employment and will provide immigration assistance in that capacity.
- The agent becomes a partner in a partnership and will provide immigration assistance in that capacity.
- If the agent is a member or employee of a partnership and provides immigration assistance in that capacity, a member of the partnership becomes bankrupt.
- A receiver is appointed for the corporation’s property or part of its property or the corporation begins to be wound up if the agent:
- Is an executive officer or employee of a corporation; and
- Provides immigration assistance in that capacity
The penalty for not notifying MARA within the specified time is 100 penalty units.
Obligations of Registered Migration Agents: Additional Provisions Under Section 312
An offence under subsection (1) of section 312 is an offence of strict liability. This means that intent or knowledge is not required to establish guilt. The terms used in paragraph (1)(ea) of Section 312 have the same meaning in the Migration Agents Registration Application Charge Act 1997.
A registered migration agent must inform MARA in writing within 28 days if they become a restricted or unrestricted legal practitioner. The penalty for not notifying MARA within the specified time is 100 penalty units. An offence under subsection (4) of section 312 is an offence of strict liability.
Note: See section 6.1 of the Criminal Code for the concept of strict liability
Section 312A: Notification of Giving of Immigration Assistance to Visa Applicants
Section 312A of the obligations of registered migration agents outlines a migration agent’s responsibility to provide immigration assistance to visa applicants.
The agent has an obligation to notify the Department of Home Affairs (DHA) according to the regulations. This is if a registered migration agent agrees to represent a visa applicant and subsequently provides immigration assistance in relation to the visa application.
The notification must be made within the period specified in the regulations. The penalty for failing to provide this notification within the specified timeframe is 60 penalty units. Failure to provide this notification is considered an offence of strict liability. This means that the prosecution does not need to establish intent or knowledge on the part of the migration agent to prove the offence.
Note: See section 6.1 of the Criminal Code for the concept of strict liability
Section 312B: Notification of Giving of Immigration Assistance to Review Applicants
Section 312B of the obligations of registered migration agents outlines the notification of giving of immigration assistance to review applicants. Here’s an explanation of its meaning:
The agent must notify the relevant review authority if they represent a person who:
- Has made a review application; and
- Subsequently provides immigration assistance in relation to that review application
The agent must make the notification within the timeframe determined by the regulations. The penalty for failing to provide this notification within the specified timeframe is 60 penalty units. Failure to provide this notification is an offence of strict liability.
This means that the prosecution does not need to establish intent or knowledge on the part of the migration agent to prove the offence.
Note: See section 6.1 of the Criminal Code for the concept of strict liability
“Review application” refers to a request for a review of a decision to deny a person a visa by a review authority.
Section 313: Persons Charged for Services to Be Given Detailed Statement of Services
Section 313 of the obligations of registered migration agents outlines that persons must receive detailed statements of services. Here’s an explanation of its meaning. A registered migration agent has no entitlement to receive payment for providing immigration assistance to the assisted person. This is the case unless the agent provides the assisted person with a statement of services. The statement of services must include the following information:
- Details of each service performed by the agent.
- The charge or fee associated with each service provided.
An assisted person has the right to recover the amount paid as a debt owed to them if he/she:
- Has made a payment to a registered migration agent for immigration assistance; and
- Has not received a statement of services before making the payment; or
- Does not receive the statement of services within the period specified in the regulations.
Section 314: Code of Conduct for Migration Agents
Section 314 outlines the code of conduct for migration agents. The regulations have the authority to establish a Code of Conduct for migration agents. Registered migration agents have the obligation to conduct themselves in accordance with the Code of Conduct that the regulations prescribe.
Seeking Legal Advice About Obligations of Registered Migration Agents
While registered migration agents can provide valuable assistance, a migration lawyer can also offer additional advantages. JB Solicitors’ migration lawyers have undergone extensive legal education and training. This enables them to provide a higher level of legal analysis and advice compared to migration agents.
We can also provide full representation in legal proceedings, which is a service that migration agents may not be able to provide. Our team ensures that we treat your case with full confidentiality and utmost care. We firmly believe that our clients deserve the best possible guidance and representation in their migration cases.
Make an enquiry today if you need more information about obligations of registered migration agents.
