This article will discuss provisions for transitional arrangements for Australian Legal Practitioners (Division 8) under the Migration Act 1958. Australian legal practitioners play an important role in migration and immigration law matters. They can help clients with a range of tasks, including:
- Providing advice on visa applications. Australian legal practitioners can help clients understand the visa application process and the requirements for each type of visa. They can also help clients prepare their visa applications and gather the necessary documentation.
- Representing clients at visa interviews. Australian legal practitioners can represent clients at visa interviews. This can be helpful for clients who are not comfortable speaking English or who are not familiar with the immigration process.
- Challenging visa decisions. If a client’s visa application is refused, an Australian legal practitioner can challenge the decision.
- Advising on permanent residency. Australian legal practitioners can help clients understand the requirements for permanent residency and how to apply for it. They can also help clients with the process of applying for citizenship.
Transitional arrangements for Australian Legal Practitioners are important under the Migration Amendment Act (Regulation of Migration Agents) 2020. Why? This is because these arrangements provide certainty and continuity for legal practitioners who provide immigration assistance before the commencement of Division 8.
Section 333: Definitions Under Transitional Arrangements for Australian Legal Practitioners
Section 333 of transitional arrangements for Australian Legal Practitioners defines certain terms used in Division 8. These are “Amending Act” and “Division 8 commencement day”.
- “Amending Act” means the Migration Amendment (Regulation of Migration Agents) Act 2020. This Act amended the Migration Act to allow Australian legal practitioners to provide immigration assistance without being registered as migration agents.
- “Division 8 commencement day” means the day that Division 8 of the Migration Act commenced. This day is the day that the Migration Amendment (Regulation of Migration Agents) Act 2020 commenced.
Section 333A: Restrictions on Giving Immigration Assistance and Making Immigration Representations
The Section 333A of transitional arrangements for Australian Legal Practitioners outlines restrictions on giving immigration assistance and making immigration representations. Section 333A(1) states that the following continues to apply to any conduct of a person occurring before Division 8 commencement day:
- Restrictions on giving immigration assistance; and
- Immigration representations that were in force immediately before the Division 8 commencement day
Section 333A(2) states that the restrictions also apply in relation to any conduct of a person occurring on or after the Division 8 commencement day. This is if the conduct is a part or continuation of, or is connected to, the conduct of the person occurring before that day.
Section 333B: Registered Migration Agents Who Were Unrestricted Legal Practitioners Immediately Before the Division 8 Commencement Day
Section 333B of transitional arrangements for Australian Legal Practitioners applies to a person who was both a/an:
- Registered migration agent; and
- Unrestricted legal practitioner immediately before the Division 8 commencement day
The section states that the person’s registration as a migration agent ends at the start of the Division 8 commencement day.
Section 333C: Persons Who Were Restricted Legal Practitioners Immediately Before the Division 8 Commencement Day
The Section 333C of transitional arrangements for Australian legal practitioners outlines restricted legal practitioners immediately before the Division 8 commencement day.
Section 333C(1) states that this section applies in relation to a person who was a restricted legal practitioner immediately before the Division 8 commencement day. This is the case whether or not the person was a registered migration agent at that time.
Section 333C(2) states that the person’s eligible period for the purposes of section 278A is the period of 2 years after the Division 8 commencement day, despite subsection 278A(3). Subsection 278A(3) states that 2 years is the eligible period after the person first held a restricted practicing certificate.
Section 333D: Registration Applications Made Before the Division 8 Commencement Day
Section 333D of transitional arrangements for Australian legal practitioners deal with:
- The registration applications of migration agents before and after the commencement of Division 8; and
- The application of certain amendments to these applications
Here’s a summary of each subsection:
This subsection applies if, immediately before the Division 8 commencement day:
- Individuals who had submitted a registration application. This is the case whether or not the individual had previously been registered as a migration agent)
- The Migration Agents Registration Authority (MARA) had not made a decision regarding the application. In other words, the application was still pending.
“Schedule 1” of the amending Act introduced changes to “Division 3” related to migration agent registration. These amendments will be applied to the registration applications mentioned in subsection 1 as if those applications were made on or after the Division 8 commencement day.
What happens if the registration applicant was an unrestricted legal practitioner before the Division 8 commencement day? Subsection 333E of transitional arrangements for Australian legal practitioners will answer this. If this is the case, Section 300 (which deals with the automatic continuation of registration), will not apply to their registration application after the Division 8 commencement day.
Note on Continuation of Registration (Subsection 3)
What happens if the person’s registration had been set to continue under subsection 300(4) before the Division 8 commencement day? If this is the case, their registration will end at the start of that day (Division 8 commencement day).
Section 291 states an applicant cannot be registered if their application was refused in the past year. However, there’s an exception in this case.
If the person’s registration application is refused because of “section 289B” (introduced by Schedule 1 to the amending Act), the refusal will not prevent the person from being registered as a migration agent later. They can make a new registration application at any time on or after the Division 8 commencement day, regardless of the previous refusal.
Section 333E: Events Required to Be Notified Under S 312(4)
Section 333E of transitional arrangements for Australian legal practitioners state that:
Subsection 312(4) of the Migration Act requires a registered migration agent to notify MARA. This notification involves an agent who has become a restricted or unrestricted legal practitioner if the agent becomes such a practitioner on or after the Division 8 commencement day.
Importance of Seeking Legal Advice
If you are considering seeking immigration assistance, it is important to check who is familiar with the law and the transitional arrangements. An immigration lawyer can help you to understand your options and to ensure that you are compliant with the law.
JB Solicitors is a leading law firm in Australia with a team of experienced immigration lawyers who can help you with all of your immigration needs. We can help you to understand the law, the transitional arrangements, and your options. Our team can also help you to prepare your visa application and represent you at visa interviews or legal proceedings.
We encourage you to contact us today if you are considering seeking immigration assistance.