EXPLANATORY STATEMENT
Migration Act 1958
Migration Agents Regulations 1998
PRESCRIBED CONTINUING PROFESSIONAL DEVELOPMENT FOR APPLICANTS FOR REGISTRATION AS A MIGRATION AGENT
(REGULATION 6)
- This Instrument is made under Regulation 6 of the Migration Agents Regulations 1998 (‘the Regulations’).
2. On 1 July 2012, Regulation 6 was amended to prescribe continuing professional development and specify an English language requirement that a registered migration agent must satisfy to maintain registration. The new provisions are detailed below.
3. Section 290A of the Migration Act 1958 (the Act) provides that an applicant for registration as a migration agent who at some time in the 12 months before making the application, he or she must not be registered if the Migration Agents Registration Authority (the Authority) is satisfied that the applicant has not met, within the prescribed period, the requirements prescribed by the regulations for continuing professional development of registered migration agents.
4. Regulation 6 of the Regulations provides that, after 1 January 2014, for the purposes of section 290A of the Act, in addition to the continuing professional development requirements set out in Schedule 1 of the Regulations, applicants for repeat registration must meet one of the following criteria:
- have achieved at least the minimum score in an exam in English language proficiency specified by the Minister in an instrument in writing (subregulation 6(2)(a)); or
- hold a current legal practising certificate issued by an Australian body authorised by law to issue it (subregulation 6(2)(b)); or
- be in a class of person specified by the Minister in an instrument in writing for this paragraph (subregulation 6(2)(c)).
5. The purpose of this Instrument is to support the criteria in the Act and the Regulations that registered migration agents must maintain in order to be registered.
6. The Instrument specifies that for the purposes of subregulation 6(2)(a) registered migration agents to obtain the minimum overall test score of IELTS 7 Academic or General 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).
7. The Instrument specifies a class of persons for subregulation 6(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; or
- was registered prior to 1 January 2004 and has been registered as a migration agent for not less than 10 years, excluding any period of suspension; or
- has previously satisfied the Authority as part of a previous application for registration as a migration agent that he or she has met the English language proficiency specified in subregulation 6(2)(a).
8. The Regulations were amended to include the English Language requirement. 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.
9. 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.
10. Where a migration agent was registered for at least 10 years they are exempt from having to satisfy the English language requirement. However any period of suspension is not to be included in calculating the 10 year registration requirement. An agent that has been registered for 10 years or more is expected to have sufficient English language skills to meet the agent’s professional skills required by the MARA.
11. This Instrument does not commence until 1 January 2014 to provide for a period of time for migration agents for agents who do not currently meet the English language requirements to develop the necessary skills to satisfy the amended Regulation 6.
12. Consultation was undertaken with the Migration Agent Registration Authority who regulates the migration advice profession and is responsible for registering migration agents.
13. 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.
14. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Ref 12082).
15. The Human Rights Compatibility Statement is at Attachment A.
16. This Instrument, IMMI 12/067, commences on 1 January 2014.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
PRESCRIBED CONTINUING PROFESSIONAL DEVELOPMENT 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 12/067] prescribes the minimum level of English Language proficiency that is required and how this proficiency can be demonstrated to satisfy the Office of the Migration Agents Registration Authority (MARA) that an applicant has met the requirements of Regulation 6 of the Migration Agents Regulations 1998.
Human rights implications
This proposed instrument is consequential to the proposed amendments to Regulation 6 of the Migration Agents Regulations 1998 (the Regulations).
The proposed amendments to Regulation 6 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 a minimum level of English to give effect to the amendments to Regulation 6. It does not engage human rights beyond those already explored in the Statement of Compatibility for the amendments to Regulation 6.
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