2 industry associations communicated to their members on 13 Feb 2021 that MARA announced that an initial application to become an RMA by a Restricted Legal Practising Certificate holder made before the commencement of the deregulation legislation “must be treated as if it were lodged after the new legislation commenced”, if it is decided after commencement. Given the 30-day notice requirement and processing time, MARA therefore indicated that applications made after 14 Feb would likely require completion of the Grad Dip and passing of the Capstone. Later on 13 Feb, we respectfully raised it with MARA that the passage quoted above appeared incorrect. Accordingly, MARA has told Migration Law Updates today that they will be amending their announcement.
It has come to our attention that 2 industry associations have communicated to their members on 13 February 2021 that the OMARA recently announced as follows (emphasis added):
If you hold an RLPC and intend to apply for initial registration as a migration agent, please be aware that after the commencement of the new legislation you will need to also complete the prescribed course (the Graduate Diploma in Australian Migration Law and Practice) and the prescribed exam (the Capstone). A legal practising certificate will no longer be a prescribed qualification.
Please also note that if you apply for initial registration before the commencement of the new legislation, but your application is not decided before commencement, then your application must be treated as if it were lodged after the new legislation commenced. In this situation, as indicated above, you will need to have completed the prescribed course and passed the prescribed exam in order for your registration application to be approved. As the OMARA is prevented from considering an initial registration application for a period of 30 days after lodgement, it is unlikely that an initial registration application lodged after 14 February 2021 will be decided before commencement of the new legislation. Intending applicants should consider carefully whether to lodge a registration application in this situation as the application may be refused and there can be no refund of the registration application charge.
[hereafter referred to as “the above-quoted statement”]
One of those organisations advised its members that it was “too late” for an RLPC holder to register as an RMA. With respect, such advice is incorrect.
Upon becoming aware of the above-quoted statement, we decided to carry out some research on the topic, given its importance to practitioners, readers of Migration Law Updates and Migration Law Training’s students.
And because of that importance, we respectfully raised it with the OMARA on 13 February 2021 that, for the reasons discussed below, it appears that the highlighted portion of the above-quoted statement may not be supported by the relevant legislation, namely the Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth).
Following our correspondence with the OMARA, it informed Migration Law Updates today that it will be amending its announcement. In summary, initial applications made (or to be made) by RLPC holders before the commencement of Schedules 1 and 2 of the Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth) will not be subject to the requirements relating to completion of the Graduate Diploma and passing of the Capstone Exam, regardless of when those applications are decided.
Further, there are provisions dealing with when an application is taken to have been made, which we also discuss in this article.
To avoid doubt, nothing contained in this article is intended as criticism towards those associations, the OMARA or any other person or organisation. Rather, this email is merely aimed at contributing to the interpretation of a complex new piece of legislation and to the professions concerned with the giving of immigration assistance.
New legislation interpreted
Item 32 of Schedule 1 to the Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth) adds s 333 to the Migration Act 1958 (Cth). Section 333 in turn defines the former Act as the “amending Act”.
In summary, the amending Act makes several changes to the Migration Act. In particular, Schedule 2 to the amending Act contains Parts 1 and 2.
Part 1 of Schedule 2, among other amendments, repeals and substitutes s 289A, essentially requiring a person who never registered as an RMA (or whose registration lapsed) to complete the relevant Graduate Diploma and pass the Capstone Exam in order to be registered.
Part 2 of Schedule 2 governs the applicability of the amendments made by Part 1 and provides as follows:
4 Application of amendments made by Part 1
(1) The amendments of the Migration Act 1958 made by Part 1 of this Schedule apply in relation to a registration application made on or after the day this Schedule commences.
…
Although item 4(1) of Part 2 of Schedule 2 of the amending Act does not expressly state that the amendments made by Part 1 apply only “in relation to a registration application made on or after the day this Schedule commences”, the term “only” should be implied. Otherwise, item 4(1) would serve no purpose, as such amendments apply, by definition, in relation to a registration application made on or after Schedule 2 commences.
As a result, a registration application made before the commencement of Schedule 2 to the amending Act is governed by s 289A as in force immediately before the commencement of Schedule 2, contrary to the highlighted portion of the above-quoted statement.
For completeness, we note that another provision added by (Schedule 1 to) the amending Act, namely s 333D(2), concerning the applicability of the provisions amended by the amending Act, states as follows:
The amendments of Division 3 [of Part 3 of the Migration Act] … apply in relation to the registration application as if it had been made on or after the Division 8 commencement day.
Given that s 289A is, and will continue to be upon the commencement of Schedules 1 and 2 of the amending Act, part of Division 3 of Part 3 the Migration Act, perhaps it was the reading of s 333D(2) as quoted above (i.e. without considering the content replaced by the ellipsis) that led to the making of the highlighted portion of the above-quoted statement. In fact, s 333D(2), as transcribed above (i.e. with the ellipsis), does point to the conclusion contained in the highlighted portion of the above-quoted statement.
However, s 333D(2) reads as follows, in full (emphasis added):
The amendments of Division 3 [of Part 3 of the Migration Act] made by Schedule 1 to the amending Act apply in relation to the registration application as if it had been made on or after the Division 8 commencement day.
Subsection s 333D(2) only applies to amendments “made by Schedule 1 to the Amending Act”. As the repeal and substitution of s 289A is made by Schedule 2 (as opposed to Schedule 1) to the amending Act, s 333D(2) has no application to the amendments made to s 289A.
As a result, despite the fact that s 288A of the Migration Act does impose a period of publication of 30 days before the OMARA can decide an application, this does not alter the date the application was made and therefore the iteration of s 289A that applies. It therefore follows that, even if a person makes their first registration application immediately before the commencement of Schedules 1 and 2 of the amending Act, that application will be governed by s 289A as in force immediate before the commencement.
Consequently, “[holding] the prescribed qualifications” (which includes a “a current legal practising certificate”, as per r 5(6) of the Migration Agents Regulations 1998 (Cth)) will continue to be one of the ways of satisfying s 289A as currently drafted, for applicants who apply for registration for the first time before the commencement of Schedules 1 and 2 of the amending Act (see s 289A(d) as currently drafted), regardless of when those applications are decided.
We also note that s 288(4) of the Migration Act and r 3Y of the Migration Agents Regulations 1998 (Cth) deal with the day on which a registration application is taken to have been made.
Explanatory memorandum
It appears that the Explanatory Memorandum to the Bill that originated the amending Act confirms our interpretation of the amending Act:
192. Subitem 4(1) ensures that the amendments made by Part 1 of Schedule 2 apply to registration applications made on or after the commencement of Schedule 2. This ensures a prospective application of the amendments.
193. The effect of this application provision on those restricted legal practitioners who have applied for registration as a migration agent but the applications have not been decided prior to commencement of this Schedule is to require the MARA to decide those applications in accordance with the provisions (including section 289A) as they were prior to commencement of this Schedule. Effectively, those restricted legal practitioners who applied for registration before commencement based on their Australian legal practising certificates will be allowed to be registered on the basis of those qualifications alone.
194. The reason for applying the changes in this way is because, at the time of application before commencement of the amendments made by Part 1 of Schedule 2 to the Bill, the applicant would have met the requirements in current paragraph 289A(d) on the basis of their legal practising certificate alone. Those who applied before commencement who relied on their legal practising certificate as a prescribed qualification may not have completed a prescribed course and passed a prescribed examination, which is required by new section 289A.
Disclaimer: the above is a mere tentative discussion of an Act of Parliament. The views there expressed might not reflect the views of the OMARA, Department, the AAT or the courts. 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.
Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au