Amendments to the Migration Regulations 1994, the Migration Agents Regulations 1998 and the Migration Agents Registration Application Charge Regulations 1998
1 July 2005 and 1 July 2006 - Legislation change
Client summary
With effect from 1 July 2005 the Migration Regulations 1994 and the Migration Agents Regulations 1998 have been amended to:
- include, for the purpose of registration, a definition of the term 'Australian permanent resident' to mean a non-citizen holding a Australian permanent visa without having to be 'usually resident' in Australia. This allows for the registration of migration agents who are holders of an Australian permanent visa and who primarily reside overseas.
With effect from 1 July 2005 and 1 July 2006 the Migration Agents Regulations 1998 have been and will be amended to:
- prescribe professional indemnity insurance (PII) held by applicants intending to register as a migration agent. It is intended that all applicants (not just first time applicants) hold PII as follows:
- minimum cover of $250,000 for all commercial agents
- exempt lawyer agents who hold a current practising certificate from providing evidence of PII
- delay the commencement date when non-commercial agents are required to hold PII to 1 July 2006, so that they can be assisted to find affordable insurance.
- provide that the matters to be considered when determining whether or not to refer a current registered agent to the Migration Agents Registration Authority for engaging in vexatious activities, also apply to former agents
- require a migration agent to inform a client in writing that an application has no hope of success or is grossly unfounded. If a client instructs the agent to proceed, the migration agent must ensure he or she receives those instructions from the client in writing.
If a migration agent agrees to represent a client whose application has no hope of success, the agent must confirm the client's instructions to proceed in writing. - clarify that clients are entitled to obtain from their agent, documents including any original documents, which they have provided, such as passports, birth certificates, qualifications, photographs and other personal documents
- require a migration agent, who advertises in a language other than English, to include the words "Migration Agent Registration Number" or "MARN" in that foreign language, as well as in English
- clarify the payment and the circumstances in which an infringement notice may be withdrawn and the procedures to be followed in issuing infringement notices to agents
- clarify that an individual who applies for repeat registration must submit with the registration application an approved form identifying the average fees charged by the registered migration agent, during the 12 months immediately before the agent applies for repeat registration
- amend an incorrect reference to a provision of the Act in the Regulations.
With effect from 1 July 2005 the Migration Agents Registration Application Charge Regulations 1998 have been amended to:
- insert a reference that the day an agent becomes a member of, or a person associated with an organisation that operates solely on a commercial or for-profit basis, he or she begins to give immigration assistance on a commercial basis and is thus liable for the higher commercial registration fee.
Technical details
Amendments were made to:
- Regulation 1.03 of the Migration Regulations 1994 by substituting a new definition of 'Australian permanent resident'
- Division 2.4 'Infringement notices relating to giving of immigration assistance' of Part 2 of the Migration Agents Regulations 1998
- Part 3 'Migration Agents and Immigration Assistance' of the Migration Agents Regulations 1998
- Part 2 'Standards of Professional Conduct' of Schedule 2 of the Migration Agents Regulations 1998
- Part 6 'Record Keeping and Management' of Schedule 2 of the Migration Agents Regulations 1998
- Regulation 6 of the Migration Agents Registration Application Charge Regulations 1998.
Amendments to commence on 1 July 2006 will be made to:
- New Regulation 6B of Part 3 of the Migration Agents Regulations 1998
Some amendments are consequential to amendments to the Migration Act 1958, stemming from the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 or are other non-controversial amendments. These amendments also give effect to the recommendations of the 2001-02 Review of Statutory Self-Regulation of the Migration Advice Industry review report and recommendations made by the Senate Standing Committee on Regulations and Ordinances.
Additional information: Nil.
Transitional arrangements: Amendments relating to the new definition of 'Australian permanent resident' apply to an application for registration as a migration agent made, but not decided by the Migration Agents Registration Authority before 1 July 2005, or made on or after 1 July 2005.
Forms: Nil.
Instructions: Nil.
Effect on delegations: Nil.
Effect on systems: Nil.