Migration Agents Amendment Regulations 2003 (No. 1) 2003 No. 92
EXPLANATORY STATEMENT
STATUTORY RULES 2003 No. 92
Issued by the Authority of the Minister for Citizenship and Multicultural Affairs
Migration Act 1958
Migration Agents Amendment Regulations 2003 (No. 1)
Subsection 504(1) of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Broadly, subsections 276(1) and 276(2) of the Act provide that a person gives "immigration assistance" if he or she uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant, a cancellation review applicant or a person nominating or sponsoring a visa applicant. Under subsection 280(1) of the Act, a person who is not a registered migration agent must not give immigration assistance.
Subsection 282(4) of the Act provides that a person "makes immigration representations" if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister's staff or the Department on behalf of a visa applicant, a cancellation review applicant, or a person nominating or sponsoring a visa applicant about specified migration matters. Under subsection 282(1) of the Act, a person who is not a registered migration agent must not ask for or receive any fee or other reward for making immigration representations.
In addition, subsections 276(4) and 282(5) of the Act provide respectively that the regulations may prescribe circumstances in which a person does not give "immigration assistance" or "make immigration representations".
The Migration Agents Regulations 1998 (the Migration Agents Regulations) provide, in part, that:
• the Migration Agents Registration Authority (MARA) may charge course providers a certain fee for assessing Continuing Professional Development (CPD) activities;
• an "approved activity", in relation to the continuing professional development of registered agents, is defined as an activity specified by the Minister;
• the Minister may approve CPD activities; and
• the Minister may specify, by notice published in the Gazette, approved CPD activities.
The purpose of the Regulations is to:
• allow sponsors of applicants for a Subclass 470 (Professional Development) visa to be exempt from the prohibition on providing immigration assistance and making immigration representations;
• increase the fee that the MARA charges course providers for assessing CPD activities;
• enable the MARA to specify approved CPD activities rather than the Minister; and
• allow for the approved CPD activities to be notified by publication on the MARA website, rather than being published in the Commonwealth Gazette.
Details of the Regulations are set out in the Attachment.
The Regulations commence on 1 July 2003.
0301945A-0305122
ATTACHMENT
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Agents Amendment Regulations 2003 (No. 1).
Regulation 2 - Commencement
This regulation provides that these Regulations commence on 1 July 2003.
Regulation 3 - Amendment of Migration Agents Regulations 1998
This regulation provides that Schedule 1 to these Regulations amends the Migration Agents Regulations 1998 (the Migration Agents Regulations).
Schedule 1 - Amendments
Item [1] - Regulation 3, definition of approved activity
This item makes an amendment to the definition of "approved activity" in regulation 3 by substituting the reference to "Minister" with a reference to "MARA". The effect of this is that the MARA may make an assessment for an approved activity rather than the Minister. This amendment is a consequence of a submission by the MARA to the 2001-02 Review of Statutory Self- Regulation of the Migration Advice Industry (the Review).
Item [2] - Part 2, heading
These amendments rename and restructure Part 2 of the Migration Agents Regulations as a consequence of the insertion of new Division 2.2 into Part 2, below.
In particular, this item:
• renames Part 2 of the Migration Agents Regulations, entitled "Immigration assistance given by persons not registered" and
• inserts a new Division 2.1 into the Migration Agents Regulations entitled "Assistance given by employers and their employees".
Item [3] - Regulation 3A, heading
This item substitutes a new heading for regulation 3A entitled "Definitions for Division 2.1". This is a minor technical amendment.
Item [4] - Regulation 3A
Item [5] - Regulation 3B
These items contain minor technical amendments consequential to the restructure of Part 2 outlined above.
Item [6] - After regulation 3D
This item inserts a new Division into the Migration Agents Regulations after regulation 3D, entitled "Assistance given by professional development sponsors". This is consequential to the introduction of the Subclass 470 (Professional Development) visa to be introduced into the Migration Regulations 1994 on 1 July 2003.
This item inserts a new definition of "applicant", to mean a person who is genuinely seeking to satisfy, or genuinely intends to seek to satisfy the criteria for the grant of a Subclass 470 (Professional Development) visa. This item also inserts a new definition of a "professional development sponsor" to mean an organisation that is sponsoring or intending to sponsor an applicant in relation to their application for a Subclass 470 (Professional Development) visa.
This item also inserts new regulations 3F and 3G into the Regulations.
Pursuant to subsection 276(4) of the Act, new regulation 3F provides for the circumstances where a professional development sponsor, or an employee of such a sponsor who is acting on behalf of the sponsor, does not give immigration assistance. These circumstances are where:
• a professional development sponsor, or employee of such a sponsor, (see definition in regulation 3E) gives immigration assistance of the kind mentioned in subsection 276 (1) or (2) of the Act:
- to an applicant (see definition in regulation 3E)
- in relation to a Subclass 470 (Professional Development) visa.
Pursuant to subsection 282(5) of the Act, new regulation 3G provides for the circumstances where a professional development sponsor, or an employee of such a sponsor who is acting on behalf of the sponsor, does not make immigration representations. These circumstances are where:
• a professional development sponsor, or employee of such a sponsor, (see definition in regulation 3E) makes immigration representations of the kind mentioned in subsection 282(4) of the Act:
- to an applicant (see definition in regulation 3E)
- in relation to a Subclass 470 (Professional Development) visa.
Item [7] - Regulation 6A, heading
This item contains a minor technical amendment, consequential to the amendments to regulation 6A, below.
Item [8] - Subregulation 6A(1)
This item makes an amendment to subregulation 6A(1) of the Migration Agents Regulations to provide that the MARA may assess and approve activities to be specified under clause 3 of Schedule 1 of the Regulations. That is, no recommendation need be made to the Minister that the activity be specified, as the MARA rather than the Minister will be responsible for approving activities. This amendment is effected as a consequence of a submission by the MARA to the 2001-02 Review of Statutory Self Regulation of the Migration Advice Industry.
Item [9] - Subregulation 6A(4)
This item contains an amendment to subregulation 6A(4) of the Migration Agents Regulations permitting the MARA to charge a fee of $33 to cover the costs of assessing CPD activities, provided that the activity provider has asked the MARA to assess these activities (see subregulation 6A(2)). Although the full cost of assessing an activity is estimated to be $250 per CPD activity, the MARA only intends to increase the charge to providers of CPD activities to $99 at this time in order to recover a greater proportion of the cost of assessing and approving CPD activities.
Item [10] - Schedule 1, subclause 3(1)
This item makes an amendment to subclause 3(1) to provide that the MARA rather than the Minister, may specify approved activities. This amendment is effected as a consequence of a submission by the MARA to the 2001-02 Review of Statutory Self-Regulation of the Migration Advice Industry. Furthermore, this will be done by publishing the activities on the MARA's website, rather than by notice published in the Gazette. This amendment will improve the MARA's services to migration agents, as CPD information can be made public more quickly on the Internet than in the Commonwealth Gazette. The note inserted under subclause 3(1) emphasises that paper copies of the notices published on the website maybe obtained from the MARA upon request. This amendment is effected as a consequence of the 2001-02 Review of Statutory Self-Regulation of the Migration Advice Industry.
Item [11] - Schedule 1, subclause 3A(1)
This item makes an amendment to subclause 3A(1) to provide that the MARA rather than the Minister may decide whether or not to specify an activity under clause 3. This amendment is effected as a consequence of a submission by the MARA to the 2001-02 Review of Statutory Self-Regulation of the Migration Advice Industry.
Item [12] - Schedule 1, paragraph 3A(1)(a)
This item makes an amendment to paragraph 3A(1)(a) to provide that in deciding whether to specify an activity under clause 3 the MARA must be satisfied as to whether the activity will help improve each participant's professionalism as a migration agent, including the participant's knowledge of migration procedures, professional ethics and relevant skills. The MARA must also be satisfied that the activity provider has a way of ensuring that the activity will achieve the outcome mentioned above and finally that the delivery of that activity is focussed on the achievement mentioned above.