Submissions Regarding Migration Agents Profession and Regulations

I have been involved in this area of law for over 16 years. In the course of my years of legal practice, I have come across clients who had lost years of education, work experience in Australia, and all and any options that were available to them to remain in Australia as a result of wrong, inconsiderate, and uneducated advice by migration agents.

I have formed the view that granting license to migration agents under the current requirements is inconsistent with the complexity of this area of law that renders even senior legal practitioners confused at times. I have also formed the view that mastering English language is the most essential tool the agents must have in order to be able to understand the Act, the Regulations and the Policy documents so that the advice they provide to applicants are accurate and in their best interest.

While I appreciate the protective position of migration agents associations like MIA and others, I note that their position stems from the assertion that “most” agents act professionally and with competence. In my view, it is not good enough that Most agents are great. The requirement for the public interest is that ALL agents must be acting professionally and with competence.

It is not sufficient that agents are able to communicate with their fellow country clients without any language problem. It is crucial that they have the English skills and the ability to understand the technicalities of the law, and that they are able to communicate their client’s position to the Department and to the Tribunal accurately, properly and competently.

My current case load of migration clients includes a well over 40 percent of cases that have become complex and complicated in the hands of migration agents.

The migration law has become so complex and complicated that even the management of the Department at times have a difficult time making determinations on technical points of a process. Migration agency requires too little qualification and knowledge of the law to render it safe for agents to practice in this area.

I have a client who has been living and working in Australia for 12 years holding subclass 457 visa. The migration agent could not understand the requirements of the permanent visa path, so he kept on advising the visa holder and his sponsor to renew the 457 visa. When the 3rd application was lodged for a new 457 visa, the applicant did not qualify under the new laws in relation to English test so his application was refused. He had lost the chance to apply for a Permanent visa after 2 years of work simply because the agent was unable to comprehend the requirements of the PR path. Even though the applicant had worked for additional 10 years in Australia with the same sponsoring business, he was left with a refusal on his record and no where to go.

Then another agent advised the visa holder to apply for a refugee visa. The visa holder is a 55 year old Indian cook.
The agent applied for a refugee visa for him and of course that application was also refused. Then a third agent advised him to apply for a student visa. The student visa application was also refused. By then a total amount of $95000, representing all of the applicant’s savings in 12 years had been wasted in agent’s fees and application fees.
Another client lived and worked in Australia for 4 years holding 457 visa. His agent did not advise him about his option to apply for a PR after 2 years. When the visa holder contacted him days before expiry of his visa to seek advice, the agent advised him to apply for a student visa. He is a 52 year old cook from the Philippines. By the time the student visa application was decided, the applicant’s 457 visa expired and he lost his chance to apply for a PR with the same sponsor. The student visa application was refused. The agent made an application to AAT for a review.

The agent did not advise the applicant that he needs to maintain a Certificate of Enrollment until his application is heard. The Tribunal affirmed the refusal on the basis that the applicant did not have a certificate of enrolment which is a pre-condition to grant of a student visa.

A current client approached a migration agent to apply for investment visa for him and his family. The applicant is highly educated and has years of management experience of high level manufacturing businesses. The Retainer agreement required payment of fees in 3 installments: at the time of agreement, at the time the application was lodged and after grant of visa.

The agent lodged applications without signatures on forms, and without any supporting document in order to expedite receiving the 2nd installment of fees. Some $12000 application fees were paid by the applicant in addition to agent’s fees. The agent then forgot about this application and by the time the Department issued a notice to complete, the agent forged the signatures of the applicants on the forms and submitted to the Department. The application was refused on the basis that “bogus “documents were submitted by the applicant – as agents have no liability in what they do – and applicants are banned for 3 years to apply for any visa.

The agent did not advise the applicants for 5 months that their application was refused. As a result, the applicants lost the opportunity to seek Judicial Review of the decision and rectify the taint on their record.

Had this agent been a lawyer, he would have lost his license to practice over such misconduct. MARA does not have any tangible power to take action and these agents go free to continue with their criminal activities.

The last round of investigation and recommendations improved – to an extent -the entry requirements into this profession. The problem however, is not only the new entrants to the industry. The existing migration agents are those practicing with inadequate English, little knowledge of the law and no accountability when they fail in their duties. The regulating agency needs to find a solution for this group of practitioners.

Jaleh Johannessen