Australia’s lawyers appear to be the beneficiaries of a stunning coup that puts their lay competition out of business in the lucrative practice of guiding the 200,000-odd annual migrants through the complicated task of gaining entry to the country.
Industry sources estimate the migration advice industry was worth almost A$1 billion in 2019, although substantially lower in 2020 as the Covid-19 pandemic closed borders. The top five countries of origin are the United Kingdom, New Zealand, China (excluding Hong Kong and Taiwan), Italy, and Vietnam, accounting for 45.1 percent of foreign-born.
The vehicle was legislation passed in June in parliament that is expected put at risk the livelihoods of thousands of so-called “non-lawyer” registered migration agents who provide advice and information and assistance to potential migrants. The law is expected to go into effect next March.
Currently all lawyers wishing to provide such assistance must also register with the Office of Migration Agent Registration Authority to be named “lawyer RMAs” as opposed to “non-lawyer RMAs.” Upon registration, each RMA is given a number containing the letters MARN with all publicly available details listed on the migration office’s website, which is very helpful for customers.
All RMAs, both lawyers and non-lawyers, must currently complete Continued Professional Development training, pay an annual registration fee of A$1,600 and follow a rigid code of conduct. The migration office has the power to discipline any migration agent in breach of the code to ensure consistent professional standards. In fact, both lawyer RMAs and non-lawyer RMAs have been working and competing fairly to provide immigration services for benefits of consumers for many decades, under the existing migration legislation.
However, under the deregulation bill passed by the parliament, all lawyers with unrestricted practicing certificates no longer need register. That means when the bill comes into effect, more than 60,000 lawyers including those without any knowledge or skills in migration law can freely provide assistance without paying an annual registration fee or fulfilling the stringent entry requirements into the profession.
In addition, all those lawyer RMAs who have been disciplined by the migration office, including those who have been barred or with registration cancelled to prevent them from practicing due to unethical conduct, will automatically be released from such migration office disciplinary measures and thus able to provide migration services to vulnerable consumers.
Many in the industry believe this step will drastically increase the cost of migration and visa advice to clients and potentially represent a loss of expertise as non-migration specialists take up the void that has been serviced very well by non-lawyer RMAs who usually charge much lower professional fees than lawyers.
Non-lawyer RMAs have played a crucial role in Australia’s migration programs over the past 40 years. Migration law, corresponding regulations, visa classes and requirements and procedural processes are extremely complex. Australian Migration Agents Pty Ltd CEO Robert Chelliah, a long-time RMA, said experience and thorough understanding of migration procedural framework and decision criteria are critical to providing clients with positive outcomes.
Without this experience and in-depth understanding of the procedural nature of the migration framework, clients will suffer, the critics say, calling the new deregulation bill a step backward for the profession amid concerns that minimum professional standards won’t be maintained.
In addition, the Department of Home Affairs recently conducted an inquiry on “Creating a world class migration advice industry” where industry submissions closed in July 2020. While the review’s purpose is to create a world class migration advice industry, the review to date has just focused its inquiry into non-lawyer RMAs, and left out lawyer RMAs, without giving any reasons for justification.
The proposed changes in the review place a burden on non-lawyer RMAs. The introduction of a tiering system in which both new and existing non-lawyer RMAs are subject to a “ranking” with rigorous exams for each tier. The tiering system, if implemented, could lead to a situation that a non-lawyer RMA with over 30 years of unblemished practice may need to sit an exam to upgrade from the base tier to an intermediate tier, while a fresh lawyer without any knowledge or skills in migration law can enjoy the privilege of carrying out immigration work in all tiers.
“The simple logic is should the Department of Home Affairs really wish to build a world class migration advice industry,” Chelliah said, “it should have broadened the scope of this inquiry into both non-lawyer RMAs and lawyer RMAs because they are both equal service providers within the same profession.”
Why did all these changes to Australian migration law happen? The answer can possibly be traced back to 2014 when the former assistant minister for Immigration and Border Protection, Senator Michaela Cash, a former lawyer, appointed Christopher Kendall to conduct an independent review of the Office of Migration Agents Registration Authority (migration office). Kendall conducted the inquiry in his individual capacity and the widely-known Kendall Report 2014, which made 24 recommendations, most of which later became legislation.
According to RMA Voice Inc., the body representing non-lawyer RMAs, the Kendall Report was seriously flawed, and will perpetuate some of the shortcomings of the industry rather than remedy them. Kendall himself was far from an independent reviewer as he was sitting on the Law Council of Australia (LCA) at the time, which made submissions to the inquiry supporting the LCA agenda.
The review’s terms of reference stated clearly that the subject of the review was the migration office, and not RMAs. The primary scope of the review was to examine and report on the migration office’s organizational capability and challenges and the quality and effectiveness of its controls and governance. The purpose of the review is to determine if the migration office should continue to exist, and if so, provide recommendations for improvement.
In RMA Voice Inc’s view, Kendall did in fact go outside the review’s stated terms of reference to include all RMAs as a subject. The majority of the review focused on RMAs, instead of the office itself. Seventeen of 24 Recommendations made fell outside the stated terms of reference, and all recent migration legislation and regulations were the direct result of these “out of scope” recommendations.
While it is still not clear why these overshoots of the terms of reference happened in 2014, the resulting recommendations are very consistent with the LCAs’ submission, its long-term objective of removing lawyers from the migration office’s registration and placing more burden on non-lawyer RMA entry into the industry. This can be seen in LCAs’ submissions to Kendall in 2014 and to the Department of Home Affairs this July.
Non-lawyer RMAs have suffered dire consequences. Under immigration department regulations, from January 2018 the entry requirements have been raised. Prior to 2018, those wishing to become a non-lawyer RMA only needed a graduate certificate in migration law and practice, a six-month course. However, from the beginning of 2018, potential RMAs have been required to complete a graduate diploma in migration law and practice, a year-long course costing A$25,000, and passing a rigorous Capstone Exam where the failure rate is 80 percent, at cost $2,500.
Conversely, there is no entry requirement for lawyers to register and work as lawyer RMAs, providing they hold legal practicing certificates, regardless of their knowledge and skills in migration law and practice.
As of December 31, there were 7,249 RMAs of which 5,027 were non-lawyer RMAs and 2,222 lawyer RMAs. With the livelihoods of up to 5,000 non-lawyer RMAs at stake, a vast array of industry experience and expertise will be lost. The more important issue is that the recent legislation has only perpetuated the shortcomings by creating an uneven field, in favor of certified lawyers, over non-lawyer RMAs who have been the backbone of client advice since the 1980s, which will ultimately impact all vulnerable immigration customers’ interests.
RMA Voice Inc has requested that the Department of Home Affairs examine the shortcomings in the Kendall report recommendations and remedy the bias in favor of lawyers. Industry sources say that the implementation of the recommendations will drastically increase the cost of migration and visa advice and represent a loss of expertise as non-migration specialists fill a void that has been serviced very well according to the migration office’s own statistics by non-lawyer RMAs.
In addition, the sources say, current registration body migration office will be greatly weakened, as legal practitioners don’t have to register, which will potentially lead to accountability issues within the migration agent profession and put paid to the Department of Home Affairs vision of a world class migration advice industry.
Originally published in the Asia Sentinel