Immigration Assistance: The End of Dual Regulation
By Sergio Zanotti Stagliorio, Peter Chiam and Mark Northam
The giving of immigration assistance (assistance) for a reward without being a Registered Migration Agent (RMA) is a serious criminal offence. Whether or not a person is an Australian legal practitioner (legal practitioner), they must register with the Office of the Migration Agents Registration Authority (OMARA) as an RMA in order to provide assistance, although change seems to be imminent. In June 2017, a Bill was introduced into the House of Representatives, seeking to abolish the dual regulation of legal practitioners who practise in the migration advice industry. The result is that legal practitioners would be regulated only by their law societies and would no longer need to pay OMARA’s annual registration fees, unless in circumstances where a transitional period applies. The Bill requires a close look, as the way the proposed regulatory framework would apply to practitioners varies according to their individual circumstances.
Under the new regime, unrestricted practising certificate (UPC) holders who provide assistance through migrations firms or agencies would not be able to continue to do so. They would need to give assistance through a legal practice. RMAs who are restricted practising certificate (RPC) holders and provide assistance through migration firms or agencies would only be allowed to continue to do so during a transitional period. They would thereafter also need to give assistance through a legal practice.
Those changes would have a profound impact not only on legal practitioners, but also on the migration agencies and firms that employ them. This article explains the current regulatory framework and then discusses what the proposed changes are and how they would apply to practitioners under 6 different scenarios:
A. UPC holders who are not RMAs;
B. UPC holders who are RMAs;
C. RPC holders who want to remain legal practitioners;
D. RPC holders who do not want to remain legal practitioners;
E. RMAs who are not legal practitioners; and
F. former UPC holders.
II CURRENT REGULATORY FRAMEWORK
Under the current regulatory framework, a person (the adviser) must not give assistance to another person unless the adviser is an RMA, with exceptions made for assistance provided by parliamentarians, officials, close family members, persons nominating or sponsoring a person receiving assistance (e.g. a work visa applicant) and other excepted advisers. Another exception is made for those who provide assistance of a kind covered by s 276(2A) of the Migration Act 1958 (Cth) (the Act), if the assistance is not given for a reward. Section 276(2A) relates to what is loosely described as ‘Ministerial intervention’ applications. The definitions of all of the above types of excepted advisers are found in ss 275 and 280(7) of the Act and reg 3H of the Migration Agents Regulations 1998 (Cth). Legal practitioners are not excepted.
In essence, a person gives assistance if they use, or purport to use, knowledge of, or experience in, migration procedure to assist visa applicants, cancellation review applicants or sponsors by preparing or helping to prepare applications or by advising them on those applications. Assisting another person by representing them in proceedings before a court, the Administrative Appeals Tribunal (AAT) or the Immigration Assessment Authority, also constitutes assistance.
A person who is neither an RMA nor an excepted adviser and gives assistance is liable to 60 penalty units. Non-RMAs who receive a reward for giving assistance, or for making immigration representations, are liable to imprisonment for up to 10 years, whether or not they are excepted advisers.
‘Immigration legal assistance’ has a different definition under s 277 of the Act. It essentially means assistance given for the purposes of proceedings before a court. There is an overlap between immigration legal assistance and immigration assistance in relation to representing clients in court proceedings, which will not be discussed here.
RMAs are regulated by the OMARA, which has the power to discipline them. Each RMA is assigned a 7-digit identification number, the first two of which represent the year they were first registered. RMAs must renew their registration every year and comply with a Code of Conduct. The initial application fees are $1,760 for commercial and $160 for non-commercial registrations. The repeat application fees are $1,595 for commercial and $105 for non-commercial registrations.
Although the above does not exhaustively describe the existing regulatory framework, it leads to the conclusion that legal practitioners who wish to give assistance are currently required to be RMAs. Given that legal professionals are also regulated by their respective law societies, legal practitioners who provide assistance are dually regulated and must comply with two separate, although partially overlapping, sets of conduct rules. In 1994, the dual regulation regime was unsuccessfully challenged at the High Court.
III THE PROPOSED CHANGES
The current regulatory regime is likely to change soon. The Migration Amendment (Regulation of Migration Agents) Bill 2017 (the 2017 Bill) was introduced into the House of Representatives on 21 June 2017. Schedule 1 of the 2017 Bill, drafted to commence on 1 July 2018, sought not only to remove the need for dual regulation, but also to prohibit it. No-one would be able to be both an RMA and a legal practitioner at the same time. For reasons which will not be discussed here, the combination of schedule 1 of the 2017 Bill and the legal regulatory framework of the different States and Territories would produce harsh consequences to hundreds of RMAs who were RPC holders and wished to remain legal practitioners. The same would be true to thousands of their clients. As a result, schedule 1 of the 2017 Bill was met with strong resistance from many RMA-RPC holders and future RPC holders, and was amended into schedule 1 of the Migration Amendment (Regulation of Migration Agents) Bill 2018 (the Bill), drafted to commence on 19 November 2018 and to provide RPC holders with a transitional period. The government has subsequently proposed in the Senate that the commencement of schedule 1 be amended to 30 June 2019. It is this proposed date of 30 June 2019 that will be used in this article as the commencement date for schedule 1.
The Bill has not been enacted yet and contains several other changes that will not be discussed here, such as an obligation on RMAs to notify the OMARA within 28 days upon becoming RPC or UPC holders. Some of those changes are contained in other schedules of the Bill with different commencement dates.
IV WHAT THE CHANGES WOULD MEAN TO EACH PRACTITIONER
If the Bill is enacted, deregulation (i.e. the end of dual regulation) will affect both RMA-legal practitioners and legal practitioners who have never been, and might never become, RMAs. As discussed above, the Bill would prohibit individuals from being both legal practitioners and RMAs at the same time from 30 June 2019, except for RPC holders, who will have the following transitional period: whoever has ever held an RPC will be allowed to be or become an RMA only until the later of 2 years after the date they first held an RPC and 30 June 2021, extendable by the OMARA on a case-by-case basis by up to 2 years upon application, the refusal of which is reviewable by the AAT. That has become known as the ‘floating transitional period’ and produces the following scenarios.
A UPC holders who are not RMAs
Whoever holds a UPC and is not an RMA immediately before 30 June 2019 will not be allowed to become an RMA. However, they will then be allowed to give assistance as UPC holders, but only through a legal practice. In other words, they will then no longer be allowed to give assistance through a migration firm or agency.
B UPC holders who are RMAs
Whoever is both an RMA and UPC holder immediately before 30 June 2019 will cease to be an RMA as of 30 June 2019. However, they will then be allowed to give assistance as UPC holders as described in Scenario A.
C RPC holders who want to remain legal practitioners
Whoever holds an RPC and wants to keep it will be allowed to give assistance through a supervising legal practice for as long as they hold that RPC. That RPC holder will also be allowed to give assistance independent of a supervising legal practice, but only if and while registered as an RMA, and can only be an RMA until the later of two years after the date they were first granted an RPC and 30 June 2021. That RPC holder might apply to the OMARA for an extension of those dates by up to two years. The later of those dates (with an extension, if granted) is hereinafter referred to as ‘the end date’.
RPC holders who are not RMAs might apply for registration as, and become, RMAs, but only before the end date and only if they satisfy the relevant legislative requirements such as fitness to practise.
If an RMA who holds an RPC becomes a UPC holder by the end date, they will cease to be an RMA when they start to hold a UPC. However, they will then be allowed to give assistance as UPC holders, but only through a legal practice. In other words, they will then no longer be allowed to provide assistance through a migration firm or agency.
If an RMA who holds an RPC does not become a UPC holder by the end date, they will cease to be an RMA on the end date. That person will then only be allowed to give assistance if they either still hold an RPC and give assistance through a supervising legal practice, or obtain a UPC. They will then no longer be allowed to provide assistance through a migration firm or agency.
D RPC holders who do not want to remain legal practitioners
Whoever holds an RPC and does not want to keep it will be allowed to give assistance through a supervising legal practice while they still hold the RPC. That person will also be allowed to give assistance independent of a supervising legal practice, but only if and while registered as an RMA and they will only be allowed to become or remain an RMA until ‘the end date’ (as defined in Scenario C).
If that person has surrendered their RPC before the end date, they will be allowed to remain an RMA and give assistance for as long as they remain an RMA. If that person subsequently obtains a new RPC, they will be allowed to provide assistance as an RPC holder through a supervising legal practice for as long as they hold an RPC. They will also be allowed to give assistance as an RMA independent of a legal practice, but only until the end date. Given that the end date is calculated by reference to the date a person first held an RPC, as opposed to the date of last grant of an RPC, surrendering an RPC and obtaining a new one later would not reset the end date.
If that person has not surrendered their RPC before the end date, they will cease to be an RMA on the end date and thereafter will only be allowed to provide assistance through a supervising legal practice. If that person then surrenders their RPC, they will not be allowed to give assistance at all, unless and until they become an RPC holder again, but would then only be allowed to provide assistance through a supervising law firm, not through a migration or law firm.
E RMAs who are not legal practitioners
The deregulation would have no direct impact on RMAs who are not, and do not intend to become, legal practitioners. Those RMAs may be indirectly impacted in a commercial sense as some legal practitioners who hitherto have never practised migration law may be tempted to start doing so due to the fact that UPC holders would no longer be required to pay OMARA fees and RPC holders would only have to pay those fees during the transitional period. The position for RPC holders during the transition would be no different from their position in the current framework.
Individuals who are admitted as lawyers in a State or Territory Supreme Court but do not hold any current practising certificate are not legal practitioners for the purposes of the Bill or this article.
F Former UPC holders
A former UPC holder who is an RMA immediately before 30 June 2019 will be allowed to remain an RMA and to provide assistance in that capacity for as long as they remain an RMA.
A former UPC holder who is not an RMA immediately before 30 June 2019 will only be able to give assistance if and when they obtain a new practising certificate. If that person is granted a new UPC on or after 30 June 2019, that person will be allowed to give assistance thereafter, but only through a legal practice. If the new practising certificate is an RPC, that person will be able to provide assistance through a supervising legal practice for as long as they hold the new RPC. That RPC holder will also be allowed to provide assistance independent of a legal practice as an RMA, but only until the end date as set out in Scenario C.
Consequently, individuals who, immediately before the end date, are not RMAs, have surrendered their UPCs (e.g. due to pregnancy or illness) and whose new certificates are RPCs, will not be able to become RMAs and will only be able to provide assistance through a supervising legal practice and only for as long as they hold the new RPC. If they subsequently hold UPCs, they will thereafter be allowed to give assistance through legal practice, but not through a migration agency or firm.
If the Bill is enacted, legal practitioners will no longer be required to become or remain RMAs in order to provide assistance as of 30 June 2019. UPC holders will even be prohibited from becoming or remaining RMAs thereafter. RPC holders (or former RPC holders) will thereafter be allowed to become or remain RMAs only during a floating transitional period. That period ends at the later of two years after the date they first held an RPC and 30 June 2021, extendable by the OMARA by up to two years upon application, the refusal of which is reviewable by the AAT. For example: an RPC holder who was first granted an RPC on 15 January 2010 will be able to become or remain an RMA until 30 June 2021, extendable by the OMARA upon application until 30 June 2023; and an RPC holder who is first granted an RPC on 20 March 2024 will be able to become or remain an RMA until 20 March 2026, extendable by the OMARA upon application until 20 March 2028.
During the transitional period, RPC holders will be able to give assistance in their capacities as RMAs independent of a legal practice and/or through a supervised legal practice. After the transitional period, RPC holders who have not become UPC holders will only be allowed to give assistance through a supervising legal practice. Surrendering an RPC in the hope of extending the transitional period will have no effect. RPC holders will need to choose, before the end date, whether to surrender their RPCs and give assistance as RMAs or to provide assistance through a legal practice. UPC holders will need to choose, before 30 June 2019, whether to surrender their UPCs and work as RMAs or to provide assistance through a legal practice. Those changes will significantly affect migration firms or agencies and the legal practitioners they employ.
This article was published first on issue 77 of Lexis Nexis’s Immigration Review. The article as published by Lexis Nexis contains 72 endnotes with references which are important to a more thorough understanding of the above discussion.
Disclaimer: the above is a mere tentative analysis of only some parts of a Bill. The above might not reflect how the Department, AAT or the courts interpret the topics discussed in this article. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.