As all Registered Migration Agents will be very well aware, section 280 of the Migration Act makes it a criminal offence, subject to a penalty of 80 penalty units (currently $180), or $14,400 for a person who is not a RMA to give immigration assistance. And section 281 further provides that a person who is not a RMA may not ask for or receive any fee or other reward for giving migration assistance, and that doing so may result in a sentence of imprisonment of 10 years.
Perhaps less familiar is section 282, which further provides that a person who is not a RMA must also not ask for or receive a fee or other reward for making “immigration representations”. Likewise, such conduct is subject to a penalty of 10 years in prison.
Subsection 282(4) provides that a person makes “immigration representations” if he or she either makes representations, or otherwise communicates with the Minister, a member of the Minister’s staff, or with the Department about a range of migration matters.
Among other things, section 282(4) prohibits a person who is not an RM from communicating with the Department on behalf of a visa applicant concerning a visa application; on behalf of a person seeking review of a decision to cancel a visa; on behalf of a person who is seeking to nominate or sponsor a prospective visa applicant; or on behalf of a person seeking Ministerial Intervention.
Notwithstanding these very clear and express prohibitions, our colleague reports to us that the Department apparently tolerates and condones communications between Department officers and overseas persons who are not RMAs concerning visa applications and other migration matters.
Apparently, the Department takes the view that the prohibitions in the Migration Act cannot be enforced “extra-territorially” against persons who are overseas.
Indeed, Department policy, PAM3, goes so far as to state as follows:
“Regulating the industry cannot be enforced outside Australia because the scheme is underpinned by criminal sanctions and it would be contrary to the principles of international law for the Authority to coercively investigate the actions taken overseas by foreign agents.
Consequently, both in and outside Australia, the department must deal with any third party who may provide documents to the department on behalf of clients, and/or that the client nominates as their authorised recipient. This includes migration agents not registered with the Authority.”
As our colleague has correctly pointed out, the Criminal Code Act 1995 provides that when “electronic communications” (such as emails) are sent to Australia from overseas, that conduct is taken to occur “partly in Australia”. So it would appear that it is at least arguable that the prohibitions against persons who are not RMAs from communicating with the Department would indeed extend to and apply against persons who are overseas.
It does seem that the Department’s policy is creating a gigantic loophole in the regulatory framework, large enough to drive a monster truck through (or a freight train, ocean liner, rocket ship, asteroid or other celestial body, take your pick!)
In other words, under Department policy as it now stands, the Department apparently has no problem with people setting themselves up offshore and offering immigration assistance for fee or reward, and apparently no problem with allowing Department officers to engage in ongoing communication with such persons concerning migration matters.
Notwithstanding that unlike RMAs, such persons may have no knowledge whatsoever of Australia’s migration legislation, may have inadequate proficiency in English, and have not been required to provide background information to establish that they are fit and proper persons and persons of integrity.
Does this policy by the Department, which basically amounts to opening the door to possibly widespread circumvention of the scheme for regulation of persons providing immigration assistance not appear to be literally insane?
Is it not totally unfair to RMAs whose practices are based in Australia and who are subject to strict regulation and oversight?
Does it not place unsuspecting visa applicants at risk, not only of losing significant visa application fees as a consequence of unregistered overseas persons not sufficiently understanding the migration legislation, but also at risk of being subject to exclusion periods as a result of PIC 4020 problems?
What do you think? Shouldn’t the Department be rethinking this issue? Yesterday?
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Links: http://migrationalliance.com.au/
