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Robert Lachowicz Education Officer Changes to Regulation of Lawyer Migration Agents CLCQ Webinar 21 August 2018 This is summarised legal information, not legal advice. Law changes often. Consult the latest legislation and get advice from a competent legal practitioner or migration agent POLL No 1 Are you a a. Registered Migration agent b. Lawyer with unrestricted practising certificate

c. Lawyer with restricted practising certificate d. Lawyer with no practising certificate e. None of the above Regulation of Migration Agents Bill 2017 Migration Amendment (Regulation of Migration Agents) Bill 2017 amends Part 3 of the Migration Act 1958 (Cth) to remove lawyers from the regulatory scheme that governs migration agents such that lawyers cannot register as migration agents and are entirely regulated by their own professional bodies Overview of Webinar Current law History of regulation and pros/cons of reform

Regulation of Migration Agents) Bill 2017 The effect of the reforms Where to get training A few key tips in immigration law Current - Migration Agent regulation Migration Agents regulated by Part 3 Migration Act 1958 Migration Agents and Immigration Assistance The Office of MARA (Migration Agents Registration Authority) regulates the migration industry: - s.287 Register of Agents; - s.317 General power s.316 - Functions of MARA (a) deal with registration applications (b) monitor conduct of registered migration agents (c) investigate complaints re immigration assistance

(d) take appropriate disciplinary action Current - Migration Agent registration Australian citizen, permanent resident or NZ citizen on special category visa Over 18, Proficient in English Knowledge 12 month Graduate Diploma in Australian Migration Law and Practice plus pass Capstone assessment course (from 1 January 2018); or a current legal practising certificate Person of Integrity PI Insurance Current - Who can give immigration legal services? s.280 Migration Act

(1) Subject to this section, a person who is not a registered migration agent must not give immigration assistance. Penalty: 60 penalty units. (10 years prison if non-RMA charges fees - s.281) (3) This section does not prohibit a lawyer from giving immigration legal assistance. A person gives immigration assistance if the person uses knowledge or experience in migration procedure to assist a visa or cancellation review applicant or a sponsor, with an application or a merits review application or court proceedings or in a Ministerial request [s.276 (1) (2) (2A)] Lawyers can give immigration legal assistance without being registered i.e. can give advice to a visa applicant or cancellation review applicant re court proceedings, or where its not advice about preparing a visa or review application [s.277] Anyone can give Administrative assistance' Administrative assistance can be provided without being a

registered Migration Agent (s.276). This includes: clerical work in the preparation of an application or other document; translation or interpreting services to help prepare an application or other document; advising someone they must apply for a visa; passing on information produced by a third person, without giving substantial comment on or explanation of the information. Anyone can do Clerical work Can do Clerical work without being a RMA. Not defined in Migration Act, but the Department procedures manual says it includes, but not be limited to: typing or writing answers into an application/document; photocopying or collating documents;

indicating where certain information should go in an application form; paying the visa application charge and physically lodging an application. History of Regulation Pre1992 - migration advice unregulated. 1992 - full government regulation (Migration Agents Registration Scheme, administered by Dept of Immigration) 1998 - Statutory self-regulation - MIA appointed as the MARA t 2008 - Hodges Report - self regulation not supported. MARA became an office attached to Dept Immigration 2014 - Kendall Independent Review of MARA - recommended end of dual migration agent/lawyer regulation

POLL Q + A No 2 Currently, you need to be registered as a migration agent to give: a. Immigration assistance b. Immigration legal assistance c. Administrative assistance Currently, lawyers who are not registered migration agents can give: d. Immigration assistance e. Immigration legal assistance f. Administrative assistance REASONS TO END DUAL REGULATION? " .... strongly supports removing dual regulation of lawyers when practising

migration law. The Law Council has consistently advocated against dual regulation of the legal profession as an unnecessary and costly regulatory burden for legal practitioners, and a source of confusion and uncertainty for their clients." Lawyers stringent regulation Confusion around immigration legal assistance Lawyer duty to provide comprehensive advice Restriction on practice of lawyers Confusion for consumers Additional registration fees

Extra complaint processes Extra CPD (now changed) Law Council of Australia Legal and Constitutional Affairs Legislation Committee Report - October 2017, pg 15 REASONS TO END DUAL REGULATION? ... welcomed the bill, offering the opinion that the removal of lawyers from the OMARA regulatory scheme, including its associated costs and the time required to register, would 'allow more legal practitioners to provide vital legal advice for refugees and asylum [seekers]' who often rely on pro bono legal advice.

Changes will open the pool up to more experienced practitioners to do pro bono work (LCA) Refugee Council of Australia Legal and Constitutional Affairs Legislation Committee Report - October 2017, pg 15 CONCERNS IF DUAL REGULATION ENDS Lack of expertise - lawyers dont have to do Graduate program Contradicts increasing knowledge requirements to Graduate Diplomas Ad hoc advice with no commitment to migration profession Confusion for clients Professional indemnity insurance reassessed to ensure lawyer competence

Migration Institute of Australia (MIA) Legal and Constitutional Affairs Legislation CONCERNS IF DUAL REGULATION ENDS Loss of legal expertise Loss of business for migration practices as RMA with restricted practising certificate would have to get an unrestricted practising certificate. Senate Committee recommended changes to initial Bill because of this. Constitutional argument Several submitters Legal and Constitutional Affairs Legislation

Committee Report - October 2017 OMARA REVIEW 2014 Lawyers be removed from the regulatory scheme; not be able to register as migration agents; and be entirely regulated by their own professional bodies. www.homeaffairs.gov.au/ReportsandPublications/ Documents/reviews-and-inquiries/omara-review.pdf Migration Amendment (Regulation of Migration Agents)

Bill 2017 PASSAGE OF THE BILL 21 June 2017 - proposed Bill introduced into Parliament. 10 August 2017 - Senate referred Bill for inquiry - report by 16 October 2017. 27 March 2018 - Government amendments introduced to allow a transitional period of 2+2 years to obtain an unrestricted practising certificate. 28 March 2018 - Bill, as amended, passed House of Representatives Currently - awaiting debate by Senate (subject to Parliamentary timetable and government commitment) Lawyers should continue their MA registration What the Bill says. The mechanics of change What will be the key change?

The law will prohibit Australian legal practitioners from registering with OMARA as Migration Agents and remove those that are currently on OMARA registers (except for those with restricted practising certificates for 2 + 2 years) Significant impact? When might this take effect? From 19 November 2018* *This is the proposed date As at 31 December 2017, 7272 registered migration agents, of which 2424 (33%) were Australian legal practitioners. 92% were commercial and 8% noncommercial.

Source:OMARA; Migration Agent Activity Report, 31 December 2017 New definitions - s. 275 Australian legal practitioner - a lawyer who holds a practising certificate (whether restricted or unrestricted) granted under a law of a State or Territory. legal practice - provision of legal services regulated by a law of a State or Territory restricted: a practising certificate held by an Australian legal practitioner is restricted if: (a) it is subject to a condition requiring the practitioner to undertake supervised legal practice for a specified period; and (b)such a condition was not imposed as a disciplinary measure by an authority responsible for disciplining Australian legal practitioners in a State or Territory.

restricted legal practitioner - an Australian legal practitioner Migration Amendment (Regulation ofwhose Migration Agents) Bill 2018 New s 280(3) - Who can give migration assistance? s.280 Migration Act (1) Subject to this section, a person who is not a registered migration agent must not give immigration assistance. Penalty: 60 penalty units. (3) This section does not prohibit an Australian legal practitioner from giving immigration assistance in connection with legal

practice. Omitted -:a lawyer from giving immigration legal assistance. Migration Amendment (Regulation of Migration Agents) Bill 2018 New 281(3) - Charging for immigration assistance s. 281 Restriction on charging fees for immigration assistance (1) Subject to (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance. Penalty: Imprisonment for 10 years. (3) This section does not prohibit: (a) an Australian legal practitioner from asking for or receiving a fee or other reward for giving immigration assistance in connection with legal practice; or (b) a person from asking for or receiving a fee or other reward for the

giving of immigration assistance by anMigration Australian legal practitioner in Bill 2018 Amendment (Regulation of Migration Agents) connection with legal practice. New - Legal practitioners registration 289B Applications by Australian legal practitioners (1)An applicant must not be registered if he or she is an unrestricted legal practitioner. (2)If an applicant is a restricted legal practitioner, he or she must

not be registered unless he or she is eligible. 278A Eligibility requirements for restricted legal practitioners (2) The eligible period is the period of 2 years after the person first held a restricted practising certificate. (3) - (9) Can apply once for extension of up to 2 years. Can ask AAT to review MARA decision Migration Amendment (Regulation of Migration Agents) Bill 2018 Principal Solicitor / Sole Practitioner requirements A person who wishes to practice as a principal of a firm or a sole practitioner must have an unrestricted certificate and complete additional training in practice management

Queensland Law Society Practice Management Course Three day, face-to-face course develop the essential managerial skills and expert knowledge to manage a legal practice. Professional Indemnity Insurance MORE DETAILS: www.qls.com.au/For_the_profession/Professional_development/Practice_management_course www.qls.com.au/For_the_profession/Practice_support/Schemes_services/Professional_Indemnity_Insurance Lesser supervision period? LEGAL PROFESSION ACT 2007 s. 56 Statutory condition regarding practice as solicitor (3) The law society may exempt a person or class of persons from the requirement for supervised legal practice under subsection (1) or may reduce a period if satisfied the person or persons do not need to be supervised or need to be supervised only for a shorter period, having

regard to (a) and (b) . the length and nature of any legal practice previously engaged in by the person or supervisors MARA must cancel. RMA must notify if LP s.302A MARA must cancel the registration of an agent who is, or has become, an unrestricted legal practitioner, or who is a restricted legal practitioner who is not eligible, or is no longer eligible. s.312 () and (5) A registered migration agent must notify the Migration Agents Registration Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner Penalty 100 penalty units Migration Amendment (Regulation of Migration Agents) Bill 2018

Inactive Migration Agents for 2 years 306B(ba) Lawyers who cease to be RMAs (on 18 November 2018, or after transition period) and RMAs cancelled (under 302A - for becoming an unrestricted LP or a restricted LP whos not or no longer eligible) become inactive migration agent. MARA then has power (under current 306D and E) to require the person, for 2 years while they remain an inactive migration agent, to produce documents that are owned by or were produced by their clients. This is to provide consumer protection, particularly where agent operated as a sole trader, and no suitable person is appointed to take Migration Amendment (Regulation of Migration Agents) Bill 2018 over the business. Effect of Changes

Unrestricted legal practising certificates Not eligible to be listed on OMARA register of migration agents, nor have a MARN, nor be able to register with OMARA. No restriction on providing immigration advice and regulated solely by legal professional body (QLS). Restricted legal practising certificates Transitional period to allow OMARA registration to continue for two years (and possible 2 more years) to obtain an unrestricted practising certificate. No practising certificate Lawyers with law degree or who are admitted but have no practising certificate. Can still apply for or renew OMARA registration (but have to fulfill knowledge requirement Grad Dip or practising cert, and comply above) POLL Q + A No 3 When registration ceases For a registered migration agent holding an unrestricted Lawyers Practising Certificate

immediately before November 2018 their MA registration will cease .. For a registered migration agent holding an unrestricted Lawyers Practising Certificate immediately before November 2018 their MA registration will cease .. From 19 November 2018 any restricted or unrestricted legal practitioner can give immigration assistance as long as its in connection with a legal practice. True/False Do you agree with these proposed changes? RMA Lawyer/Migration Agents at 19 November 2018* NO No action required. You will continue to be registered as a

Migration Agent with OMARA. Continue to renew your registration as normal. Are you a Legal Practitioner with a practising certificate NO The transition period Section 333BA applies to you providing time for

you to gain your UNRESTRICTED practicing certificate. YES Is your practising certificate UNRESTRICTED? YES Your OMARA registration may end 19 November 2018* as required by Section 302A and 333B. *This is the proposed date

RMA with practising certificate YES No action required. Your OMARA registration may end on 19 November 2018* Your Legal Practising Certificate allows you to provide migration advice *This is the proposed date Are you an employee of

a Legal Practice working under a Principal Solicitor? NO Your Legal Practising Certificate allows you to provide immigration assistance in connection with a legal practice. If you are practising as a Sole Practitioner you must establish a legal practice and satisfy the requirements for a Principal Level Practising Certificate including: Practice Management Course Professional indemnity insurance in accordance with the Indemnity Rules.

OTHERWISE: Cancel practising certificate Another Inquiry into migration agents March 2018 - Parliamentary Joint Standing Committee on Migration to inquire into the Efficacy of current regulation of Australian migration agents particularly registration and regulation of migration agents including: education, English proficiency, fees and fraud. Written submissions closed. Two more public hearings and two anonymous online questionnaires (for MAs and clients)ongoing. Efficacy of current regulation of Australian

migration agents some submissions some unscrupulous/incompetent agents. should increase English score for new RMA entrants add period of supervised practice for new agents ban RMAs from all AAT work (LCA then changed their submission to no AAT general division work for RMAs) more funding for humanitarian cases so people not forced into unscrupulous or incompetent agents. more power to OMARA to recover funds (can only cancel/suspend) complaints may also come from clients because they are victims of complexity of migration process, of DHA poor decision making and lack of communication, and of clients poor prospects at the Efficacy of current regulation of Australian migration agents DHA submissions Department and ABF acknowledge there are corrupt migration

agents (both registered and unregistered), however they make up the minority. Such corrupt migration agents potentially operate in company structures that may maintain a broader culture of corruption and misconduct. This may include operating as unscrupulous labour hire intermediaries and even facilitating visa fraud and foreign work exploitation. Education agents are providing immigration assistance unlawfully, and registered migration agents find it difficult to compete in this market. Other broader issues Highly political area DHA becoming a much more enforcement body and taking a more adversarial approach Move to shrink migration numbers (broader population policy questions) Continual changes in visa requirements

Inquiry into Simplifying the visa system Cutting of funding for legal services for asylum seeker boast arrivals and serious tightening of funding for onshore protection visa and other vulnerable applicants. Increased scrutiny, eg. in citizenship matters alongside (Note Citizenship is covered by Citizenship Act so requirements for migration agent registration dont apply. MIGRATION LAW SOME TIPS OVERVIEW OF MIGRATION LAW Migration Act 1958 structure & framework for controlling immigration - source of power Migration Regulations 1994 procedural mechanism on how power to be administered gives criteria for visa classes and

subclasses Case law Federal Circuit Court, Federal Court, High Court Ministerial Directions s.499 gives Minister power to make directions, which must be consistent with the MA and MR Gazette Notices - Act and Regs may contain provisions which allow new information to be listed quickly in a Gazette authorised by the Minister. PAM and MSI policy, not legally binding. Its DHA interpretation of the law as guidance for their officers Structure of Migration Act

Part Part Part Part Part Part Part Part 1: Preliminary 2: Control of Arrival & Presence of Non Citizens

3: Migration Agents & Immigration Assistance 4: Offences Relating to Decisions Under Act 4A: Obligations relating to identifying information 5: Review of Decisions 6: Migration Review Tribunal (repealed by TAA* 2015) 7: Review of Protection Visa Decisions * Tribunals Amalgamation Act Structure of Migration Act Part 7AA: Fast Track Review Process in Relation to Certain Protection Visa Decisions Part 8: Judicial Review Part 8A: Restrictions on Court Proceedings Part 8B: Costs Orders where proceedings have no reasonable

prospects for success Part 8C: Reports on Persons in Detention for More than 2 years Part 8D: Civil Penalties Part 8E: Investigation Powers relating to work-related offences and provisions Part 9: Miscellaneous Migration Regulations 1994

Part 1: Preliminary Part 2: Visas Part 2A: Sponsorship Applicable to Div 3A of Part 2 of the Act Part 3: Immigration Clearance & Collection of Information Part 4: Review of Decisions Part 5: Miscellaneous Schedules (1-12) Migration Regulations Main Schedules Schedule 1: Classes of Visas Schedule 2: Subclasses of visas Schedule 3: Additional Criteria applicable to Unlawful Non-Citizens & Certain BV Holders

Schedule 4: Public Interest Criteria Schedule 5: Special Return Criteria Schedule 8: Visa Conditions Migration Regulations Other Schedules Schedule 5A: Evidentiary Requirements for Student Visas Schedule 5B: Evidentiary Requirements for Student Visas Secondary Applicants Schedule 6: General Points Test Qualifications & Points Schedule 6A: General Points Test Qualifications & Points Schedule 6B: General Points Test Qualifications & Points (General Skilled Migration Visas) Schedule 7: Business Skills Points Test Attributes and

Points Schedule 8: Visa Conditions Schedule 9: Special Entry & Clearance Arrangements Pathway to visa s.29 - Minister may grant non-citizen a visa s.30 Visa may be temporary or permanent s.31 Classes of visas and criteria may be prescribed Classes - Schedule 1, and some set out in Act Criteria Schedule 2 (common ones health, public interest) s.45 Must apply for a class of visa s.46 + reg 2.07 + Schedule 1 = Valid visa application Bars on valid applications - s.46A (UMA), s.48A (previously refused or cancelled), safe third country + TSH visa)

Partner visa: Applying as fiance offshore Subclass 300 Prospective Marriage (temporary) Client plans to marry their Australian fiance Subclass 820 Partner

(temporary) Client: travels to Australia then marries their Australian partner while the sc300 visa is valid; and then makes an 820/801 application (in Australia) to stay. Subclass 801 Partner (residence) Client is still in

a relationship with their Australian partner two years after first applying for sc820 visa. Migration Regulations Sub classes of visas 0XX bridging visas 1XX permanent visas available from overseas 2XX refugee and humanitarian visas available from overseas 3XX temporary visas available from overseas which allow holder to apply for permanent once arrive in

Australia 4XX temporary resident visas 5XX student visas 6XX visitor and medical treatment visas 7XX humanitarian concern, temporary protection, transit and border visas 8XX permanent visas available in Australia 9XX electronic travel visas and visas for diplomats Schedule 2 Standard Visa Subclass Criteria XXX.1 Interpretation XXX.2 Primary criteria XXX.21 Criteria to be satisfied at time of application

XXX.22 Criteria to be satisfied at time of decision XXX.3 Secondary criteria XXX.31 Criteria to be satisfied at time of application XXX.32 Criteria to be satisfied at time of decision XXX.4 Circumstances applicable to grant XXX.5 When visa is in effect XXX.6 Conditions XXX.7 Way of giving evidence Australias Migration Programme Refugee and

Humanitarian Migration Refugee/humanitarian visa offshore (Visas 200204) Community Support Program Permanent Protection onshore - authorized arrivals (Visa 866)

Temporary Protection onshore - unauthorized boat arrivals (TPV 785 + SHEV 790 Family Migration

} Partner 80% Fiance Dependent/ adopted child Orphan relative under 18 Remaining relative Aged dependent relative Carer Parent Skilled Migration

Skilled / business High demand skills Good English Learning Courses and CPD Graduate Diploma in Australian Migration Law and Practice e.g. GU Immigration Essentials for Lawyers - 3-day MIA course Migration Agents must complete 10 CPD points for re-registration. In first year of practice must complete Practice Ready Programme. Each year at least 1 CPD point on Ethics and/or

Code of Conduct. RAILS is MARA approved CPD provider monthly CPD workshops LegendCom online legislation and policy database Accredited Specialist recognition highly experienced lawyers Learning: Communities of Practice Shared practice Bounded space

Trust The ability to participate on different levels Subject matter experts willing to share and learn Marianne Dickie Doctorate of Professional Studies 2018 Wrap Up Lawyers with practising certificates will no longer have to be registered as migration agents to give migration advice. Lawyers with practising certificates will be taken off and excluded from the MARA register of agents from 19 November 2018 (if Bill passes Senate in time) or later Some eligible lawyers with restricted practising certificates will have 2 (+2) years to remain registered in order to get unrestricted practising certificate to be bale to set up a legal practice

May not get through Senate in time for 19 November changes Migration Law is a very complex and highly political area with turbulent change. Refugee and Immigration Legal Service (RAILS) Only Community Legal Centre in Queensland specialising in refugee/immigration law. Casework priorities refugee protection, refugee family reunion, Family violence, Ministerials Phone Advice - metro and regional Evening advice service Outreach clinics - Logan, Inala, Wooloongabba (MDA) RAILS/Legal Aid Family Law clinic CPD and community education programs and resources

www.rails.org.au Robert Lachowicz Education Officer Thank You CLCQ Webinar 21 August 2018 This is summarised legal information, not legal advice. Law changes often. Consult the latest legislation and get Advice form a competent legal practitioner or migration agent

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