EXPLANATORY STATEMENT
Migration Act 1958
Migration Agents Regulations 1998
PRESCRIBED COURSES AND EXAMS FOR APPLICANTS FOR REGISTRATION AS A MIGRATION AGENT
(REGULATION 5)
- This Instrument is made under Regulation 5 of the Migration Agents Regulations 1998 (‘the Regulations’).
2. On 1 July 2012, Regulation 5 will be amended to include a prescribed course and exams that a prospective migration agent must pass. The new provisions are detailed below.
3. Section 289A of the Migration Act 1958 (the Act) provides that an applicant for registration as a migration agent who has never been registered, or who is applying to be registered more than 12 months after the end of his or her previous registration, must not be registered unless the Migration Agents Registration Authority is satisfied that he or she has completed a prescribed course and passed a prescribed exam within the prescribed period.
4. Subregulation 5(1) of the Regulations provides that, for the purposes of paragraph 289A(c) of the Act a prescribed course is a course that the Minister has specified in an instrument in writing.
5. A prescribed course for subregulation 5(1) is a Graduate Certificate in Australian Migration Law and Practice as offered at the Australian National University, Griffith University, Murdoch University and Victoria University.
6. Subregulation 5(2) of the Regulations provides that, for the purposes of paragraph 289A(c) of the Act, if a person is in a class of persons specified by the Minister in an instrument in writing, an exam specified by the Minister in an instrument in writing is a prescribed exam.
7. A class of persons for Subregulation 5(2) is a person who can satisfy the study requirements under either option 1 or option 2 while a resident of Australia, New Zealand, United Kingdom, the Republic of Ireland, United States of America, Republic of South Africa or Canada throughout the schooling period for that country.
8. New Subregulation 5(3) of the Regulations provide that if the person is not in the class of persons specified under Subregulation 5(2) a prescribed exam is a combination of an exam specified by the Minister in writing and an exam in English language proficiency specified by the Minister in an Instrument in writing.
9. For the purposes of paragraph 5(3)(a) a specified exam is the common assessment items relating to registration which form part of the Graduate Certificate in Australian Migration Law and Practice as offered at an Australian University specified under Subregulation 5(1).
10. For the purposes of paragraph 5(3)(b) an exam in English Language proficiency in either English Language Test System (IELTS) or the Internet Based Test of English as a Foreign Language (TOEFL iBT).
11. New Subregulation 5(4) specifies that an applicant is taken to have passed an exam as specified in paragraph 5(3)(b) if the applicant achieves at least the minimum score specified by the Minister in an Instrument in writing.
12. For the purposes of subregulation 5(4) the minimum test score of IELTS 7 Academic with a minimum test score of 6.5 in each subtest (speaking, listening, reading and writing) and a minimum test score of 100 in the Internet Based Test of English as a Foreign Language (TOEFL iBT) with a minimum score of 22 in each subtest (speaking, listening, reading and writing).
13. Subregulation 5(5) specifies that the prescribed period for completion of a particular course or exam is the period specified by the Minister in an instrument in writing.
14. For the purposes of subregulation 5(5) the prescribed periods are:
- 12 months to complete the Graduate Certificate in Australian Migration Law and Practice or the ‘common assessment items relating to registration’ which form part of the Graduate Certificate in Australian Migration Law as specified in subregulations (5)(1) and (2).
- 24 months to complete the IELTS or TOEFL iBT as specified in subregulation 5(4)
15. The purpose of this Instrument is to support the criteria in the Act and the Regulations that prospective migration agents must satisfy in order to be registered.
16. The Instrument also revokes the previous Instruments IMMI 06/056 (Prescribed courses for applicants for registration as a migration agent) and IMMI 06/057 (Prescribed exams for applicants for registration as a migration agent) that was signed on 28 and 29 September 2006, respectively, by the Parliamentary Secretary, Andrew Robb.
17. The Instrument operates to specify exams and courses that are prescribed exams and courses, which an applicant must have passed within a prescribed period, for persons who want to become a registered migration agent and do not hold an Australian legal practicing certificate.
18. The Instrument specifies an additional requirement for prospective registered migration agents to obtain the minimum test score of IELTS 7 Academic with a minimum test score of 6.5 in each subtest (speaking, listening, reading and writing) or a minimum test score of 100 in the Internet Based Test of English as a Foreign Language (TOEFL iBT) with a minimum score of 22 in each subtest (speaking listening, reading and writing).
19. The Regulations were amended to include the English Language requirement. These new provisions commence on 1 July 2012. The purpose of including an English Language requirement is to ensure that registered migration agents have the language ability to:
- understand the relevant legislation and departmental policies, and apply those to the client’s individual circumstances;
- accurately and comprehensively prepare applications, as well as other documentation, supporting their applicants claims against legislated criteria; and
- effectively advocate on behalf of their clients with the department, review bodies and other organisations.
20. Clients of registered migration agents must be able to rely on the agent’s professional skills, especially those clients from non-English speaking backgrounds. Where a registered migration agent fails or is unable to adequately represent, advise or assist clients because they do not have proficient skills in English, this can result in failed visa applications or unnecessary delays in status resolution, unwanted expense incurred by the clients, or litigation.
21. Consultation was undertaken with the Migration Agent Registration Authority who regulates the migration advice profession and is responsible for registering migration agents.
22. Under section 42 of the Legislative Instruments Act 2003 the Instrument is subject to disallowance and therefore a Human Rights Statement of Compatibility has been provided.
23. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Ref 12082).
24. The Human Rights Compatibility Statement is at Attachment A.
25. This Instrument, IMMI 12/035, commences on 1 July 2012 immediately after the commencement of the Migration Legislation Amendment Regulation 2012 (No. 3).
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
PRESCRIBED COURSES AND EXAMS FOR APPLICANTS FOR REGISTRATION AS A MIGRATION AGENT
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Legislative Instrument [IMMI 12/035] prescribes a number of the requirements that the Office of the Migration Agents Registration Authority (MARA) must be satisfied that an applicant for registration as a Registered Migration Agent (RMA) has met for the purposes of Regulation 5 of the Migration Agents Regulations 1998.
The requirements include:
- the prescribed entry course;
- the prescribed entry exam;
- the minimum level of English Language proficiency required and how this can be demonstrated; and
- the prescribed period in which the above elements must have been achieved.
Human rights implications
This proposed instrument is consequential to the proposed amendments to Regulation 5 of the Migration Agents Regulations 1998 (the Regulations).
The proposed amendments to Regulation 5 have been assessed for human rights implications in the Statement of Compatibility relevant to that legislative change. This included an assessment of Articles 2 and 6 of the International Covenant on Economic, Social and Cultural Rights in respect of the English language requirement.
This instrument merely prescribes entry courses, exams, minimum levels of English language and time periods in which qualifications are to be achieved to give effect to the amendments to Regulation 5. It does not engage human rights beyond those already explored in the Statement of Compatibility for the amendments to Regulation 5.
As such, this Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Conclusion
The Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Chris Bowen, Minister for Immigration and Citizenship