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MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS) ACT 2002 NO. 35, 2002 - SCHEDULE 1

- Amendments

Migration Act 1958

1 At the end of section 276

Add:

(4) A person also does not give immigration assistance in the circumstances prescribed by the regulations.
2 At the end of section 282

Add:

(5) A person does not make immigration representations in the circumstances prescribed by the regulations.
3 Subsection 289(1)

After "292,", insert "292A,".

4 Subsection 289(4)

Omit "If", substitute "Subject to subsection 300(3), if".

5 After section 292

Insert:

292A Applicant must not be registered if any barring period has not ended
An applicant must not be registered if:

(a)
the Migration Agents Registration Authority has made a decision under subsection 311A(1) to bar him or her from being a registered agent for a particular period; and

(b)
the period has not ended.

6 Subsection 299(1)

After "sections", insert "300,".

7 After section 299

Insert:

(1) If:

(a)
before the end of the last day (the expiry day ) of the period of registration of a registered agent, the agent has made a registration application; and

(b)
the agent has paid the registration application fee (if any) in respect of the application; and

(c)
the Migration Agents Registration Authority has not decided the application before the end of the expiry day;

the agent's registration is taken to continue until the Authority decides the application.

Application granted if no decision within a certain period

(2) However, if the Authority has not decided the registration application before the end of the period of 10 months beginning on the day after the expiry day, the application is taken to have been granted at the end of that period.

When registration takes effect

(3) If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (2), the registration is treated as having taken effect at the end of the expiry day.

Example: An agent's registration is due to end on 31 October (the expiry day ). On 20 October the agent applies to be registered again. The Authority has not decided the application by the end of 31 October.

The agent's registration continues automatically past 31 October until the Authority decides the application.

On 15 November the Authority grants the application. The new 12 month registration is treated as having taken effect at the end of 31 October.

8 Application provision—automatic continuation of registration

The amendment made by item 7 applies to:

(a)
any registration application made after the commencement of this item; and

(b)
any registration application made before the commencement of this item, if the registered agent who made the application was still a registered agent immediately before the commencement of this item.

9 After Division 4 of Part 3

Insert:

311A Barring former registered agents from being registered for up to 5 years
(1) The Migration Agents Registration Authority may decide to bar a former registered agent from being a registered agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered agent, it is satisfied that the subject matter of the complaint is made out.

Note: Before making such a decision, the Authority must invite the former registered agent to make a submission: see section 311D.

(2) The period must not be more than 5 years starting on the day of the Authority's decision.
311B Notification of decision

Notice to former registered agent

(1) If the Migration Agents Registration Authority makes a decision under subsection 311A(1), the Authority must give the former registered agent written notice of the decision specifying:

(a)
the reasons for the decision; and

(b)
the period in respect of which he or she is barred from being a registered agent.

Publication of statement about decision

(2) The Authority must also publish, in the way prescribed by the regulations, a statement about the decision (which includes the reasons for the decision). However, the statement need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Time of publication

(3) The statement must be published as soon as possible after the end of 28 days after the former registered agent is given written notice of the decision.
(4) However, if:

(a)
the former registered agent applies within those 28 days for review of the decision under the Administrative Appeals Tribunal Act 1975 or for judicial review of the decision; and

(b)
the decision stands at the end of all the proceedings (including any appeals) resulting from the application;

the statement must be published as soon as possible after the end of those proceedings.

(1) If the Migration Agents Registration Authority makes a decision under subsection 311A(1), the Authority may:

(a)
prepare a statement about the decision; and

(b)
make the statement available to any or all of the following:

(i)
the public;
(ii)
one or more sections of the public;
(iii)
one or more groups of persons;
(iv)
one or more persons.

Content of statement

(2) A statement under subsection (1) may include, set out or refer to any or all of the following:

(a)
the contents of a statement under subsection 311B(2);

(b)
an extract from such a statement;

(c)
the Authority's reasons for the decision;

(d)
the Authority's findings on any material questions of fact;

(e)
the evidence or any other material on which the findings of fact were based.

(3) Subsection (2) does not limit subsection (1).

How statement to be made available

(4) A statement under subsection (1) may be made available:

(a)
by being published in a newsletter, newspaper or periodical; or

(b)
on the Internet; or

(c)
in any other way.

Immunity for publishing statement

(5) An action or proceeding (whether civil or criminal) does not lie against a person for publishing in good faith:

(a)
a copy of; or

(b)
a fair extract from; or

(c)
a fair summary of;

a statement under subsection (1).

311D Former registered agent may make a submission etc.

Invitation to make submission

(1) Before making a decision under subsection 311A(1), the Migration Agents Registration Authority must give the former registered agent a written notice:

(a)
stating that the Authority proposes to make such a decision and the reasons for it; and

(b)
inviting him or her to make a written submission to the Authority on the matter within 28 days after the notice is given.

Authority to consider any submission

(2) The Authority must consider any written submission received within that period.

No submission received

(3) If the Authority does not receive a written submission, it may decide the matter on the information before it.

Submission received

(4) If the Authority receives a written submission, it may:

(a)
decide the matter; or

(b)
give the former registered agent the opportunity to appear before it and then decide the matter.

In considering making a decision under subsection 311A(1), the Migration Agents Registration Authority:

(a)
is not bound by technicalities, legal forms or rules of evidence; and

(b)
must act according to substantial justice and the merits of the case.

Subject to the Administrative Appeals Tribunal Act 1975 , an application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority under subsection 311A(1).
10 Paragraph 316(1)(c)

Repeal the paragraph, substitute:

(c)
to investigate complaints in relation to the provision of immigration assistance by registered agents; and

11 Paragraph 316(1)(d)

After "agents", insert "or former registered agents".

12 After subsection 316(1)

Insert:

(1A) In performing its function under paragraph (1)(c), the Authority may start, or complete, an investigation of a complaint about a person at a time when he or she is no longer a registered agent.
(1B) However, the Authority can investigate a complaint about a former registered agent only if the complaint is received within 12 months after he or she ceased to be a registered agent.
13 Section 318

Omit "registered agent, the Authority may refer the complainant and the agent", substitute "person who is or was a registered agent, the Authority may refer the complainant and the person".

14 Subsection 319(1)

After "registered agent", insert ", or a former registered agent,".

15 Subsection 319(2)

Omit "does so", substitute "refers the conduct of a registered agent".

Note: The following heading to subsection 319(2) is inserted " Conduct of registered agents ".

16 At the end of section 319

Add:

Conduct of former registered agents

(3) If the Migration Agents Registration Authority refers the conduct of a former registered agent, it may not take action against him or her under subsection 311A(1) on the basis of that conduct.

Note: Subsection 311A(1) allows the Authority to bar a former registered agent from being a registered agent for a period of not more than 5 years starting on the day of its decision.

17 Application provision—disciplining former registered agents

The amendments made by items 9 to 16 apply to:

(a)
any complaint about a person made after the commencement of this item in relation to his or her provision of immigration assistance before or after the commencement of this item; and

(b)
any complaint about a person made before the commencement of this item, if the person was a registered agent immediately before the commencement of this item.



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