Editors --- "The Migration Legislation Amendment (Migration Agents Integrity Measures) Act" [2004] AdminRw 37; (2004) 56 Admin Review 80

• The Migration Legislation Amendment (Migration Agents Integrity Measures) Act

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The Migration Legislation Amendment (Migration Agents Integrity Measures) Act

On 21 April 2004 an Act creating new registration requirements for migration agents and providing sanctions against registered agents responsible for large numbers of vexatious visa applications received Royal Assent. Both of these measures were recommended by a report to government in 2002.^[1]

The Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 inserts a new Division 3AA into Part 3 of the Migration Act 1958, dealing with disciplinary matters. It gives the Minister discretion to refer an agent with a ‘high visa refusal rate’ (determined on a statistical basis) to the Migration Agents Registration Authority, or MARA. Before making a referral, the Minister is obliged to invite the agent concerned to make a submission and to consider any submission made.

Once a referral is made, MARA must decide whether to caution the agent, suspend the agent’s registration for up to five years, cancel the agent’s registration (which prevents registration for five years) or, if satisfied there are special circumstances, not discipline the agent. In making its decision, MARA must take findings of fact made by the Minister to be correct.

If it decides not to discipline the agent, MARA is required notify the Minister. The Minister must then decide whether to refer the matter for disciplinary action a second time. The agent is again given an opportunity to make a submission. Under a second referral, MARA loses the option of deciding not to discipline the agent.

Decisions by the Minister to refer an agent for disciplinary action and disciplinary decisions by MARA are both reviewable by the Administrative Appeals Tribunal. However, referral decisions only become reviewable once a disciplinary decision has been made as a result.

A similar referral scheme will exist for the discipline of former migration agents, but MARA’s sole discretion is the length of the bar against registration (up to five years). Both the referral decision and the ban imposed are reviewable by the Administrative Appeals Tribunal.

The new registration requirements relate to the knowledge and qualifications of migration agents and the holding of adequate professional indemnity insurance.

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^[1] Department of Immigration and Multicultural and Indigenous Affairs 2002, Review of Statutory Self-regulation of the Migration Advice Industry, DIMIA, Canberra.