Migration Agents Regulations 1998 - Specification Of Prescribed Continuing Professional Development For Applicants For Registration As A Migration Agent - IMMI 12/067

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Legislation au F2012L01588 Not in force Legislative Instrument

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 EXPLANATORY STATEMENT

Migration Act 1958

Migration Agents Regulations 1998

 

PRESCRIBED CONTINUING PROFESSIONAL DEVELOPMENT FOR APPLICANTS FOR REGISTRATION AS A MIGRATION AGENT

(REGULATION 6)

 

  1. 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 agents 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

 

Overview

The Migration Act 1958 was enacted to provide a framework for the regulation of migration agents in Australia, aiming to ensure that such agents are suitably qualified and competent to provide advice and assistance to clients in relation to migration matters. The Act was introduced to address the need for a regulated migration industry to prevent unscrupulous practices and to ensure that clients receive proper and ethical advice. The Migration Agents Regulations 1998 were subsequently introduced to provide more detailed rules and requirements for the registration and ongoing professional development of migration agents. The policy objective of these regulations is to maintain high standards of professional conduct and competence among migration agents, thereby protecting the interests of clients and upholding the integrity of the migration process. The explanatory statement outlines amendments made to Regulation 6, which prescribes continuing professional development and an English language requirement for applicants seeking registration as a migration agent. These amendments aim to support the criteria set out in the Act and the Regulations, ensuring that registered migration agents possess the necessary language skills to effectively assist clients, particularly those from non-English speaking backgrounds. The requirement to meet specific English language proficiency standards is designed to enhance the quality and reliability of migration services provided by agents.

Scope and Application

The Migration Agents Regulations 1998, as amended by this legislative instrument, apply to applicants seeking registration or repeat registration as migration agents in Australia. These regulations specify the continuing professional development and English language requirements that applicants must meet to maintain their registration. The requirements are intended to ensure that registered migration agents possess the necessary language skills to effectively serve their clients, especially those from non-English speaking backgrounds. The regulations apply across the Commonwealth of Australia, regulating the conduct of migration agents and their interactions with clients and the Australian government. The regulations do not apply to agents who have been registered for at least 10 years, excluding any periods of suspension, as these agents are presumed to have sufficient English language proficiency. The legislative instrument, which sets out specific English language proficiency criteria, commenced on 1 January 2014 to allow existing agents time to meet the new requirements. The regulations can be further extended or modified through subordinate instruments, but this particular legislative instrument does not introduce any new exclusions or exemptions beyond those already stated.

Key Provisions

The primary provisions of this legislation, particularly Regulation 6 of the Migration Agents Regulations 1998, establish the continuing professional development requirements for applicants seeking registration as migration agents. The regulation specifies that after 1 January 2014, applicants for repeat registration must meet certain criteria to ensure they maintain their registration. This includes either achieving a minimum score in an English language proficiency exam, holding a current legal practising certificate, or meeting a class of person specified by the Minister (section 290A of the Migration Act 1958). The required English proficiency can be demonstrated by achieving a minimum overall score of IELTS 7 Academic or General, with a minimum score of 6.5 in each subtest, or a minimum score of 100 in the Internet Based Test of English as a Foreign Language (TOEFL iBT) with a minimum of 22 in each subtest. The Act imposes specific obligations on applicants for registration as migration agents. These include meeting the prescribed continuing professional development requirements, which involve demonstrating adequate English language proficiency or possessing a current legal practising certificate. Additionally, applicants must satisfy one of the criteria specified in subregulation 6(2), such as having studied in certain countries for the required period or being registered prior to 1 January 2004 and maintaining continuous registration for at least 10 years, excluding periods of suspension. The regulation aims to ensure that applicants possess the necessary skills to understand legislation, prepare applications, and advocate effectively on behalf of their clients. Failure to comply with the provisions of the Act and the Regulations can result in significant consequences for applicants and migration agents. Under section 290A of the Migration Act, if the Migration Agents Registration Authority determines that an applicant has not met the continuing professional development requirements, the applicant may not be registered. This could lead to the denial of registration, which is critical for the practice of migration law. The legislation ensures that only those agents who meet the specified criteria can maintain their registration, thereby upholding professional standards and protecting clients' interests. In terms of penalties, the Act does not explicitly outline specific criminal or civil penalties for breaches of the continuing professional development requirements. However, the consequences of failing to meet these requirements are severe, primarily in the form of the inability to maintain registration as a migration agent. This, in turn, affects the agent's ability to legally represent clients in migration matters, potentially leading to professional and financial repercussions. The regulation is designed to safeguard the integrity of the migration agents' profession by ensuring that only qualified individuals are permitted to practice.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.