ATTACHMENT B

The Regulations amend the Migration Regulations 1994 (the Principal Regulations) to:

• adjust visa application charges and fees prescribed in the Principal Regulations for specified visa classes.
• extend subclause 8107(3) and subclause 8107(3B) to circumstances where the last substantive visa held by the holder of the BVA or BVB was a Subclass 457 visa. 
• amend clause 051.513 to enable Subclass 051 Bridging (Protection Visa Applicant) visas to cease to be in effect on completion of judicial review proceedings. 
• clarify that certain applicants for a Protection (Class XA) or a Protection (Class AZ) visa will not be subject to a mandatory 'no work' condition if they are in a class of persons specified by the Minister in an instrument in writing.     
• remove the discretionary "Assurance of Support" (AoS) requirements from certain Partner category visas.

The Regulations would also amend the Australian Citizenship Regulations 2007 (the Citizenship Regulations) to:

• amend references in the Citizenship Regulations to instruments made under subregulation 5.36(1) and subregulation 5.36(1A) of the Migration Regulations 1994, which relate to the payment of fees in foreign currencies and countries.

The Regulations would also amend the Migration Agents Regulations 1998 to:

allow for the implementation of certain recommendations made by the 2007-2008 Review of Statutory Self-regulation of the Migration Advice Profession.

ATTACHMENT C

 

Details of the Migration Legislation Amendment Regulations 2011 (No. 2)

 

Regulation 1 - Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Legislation Amendment Regulations 2011 (No. 2).

 

Regulation 2 - Commencement

 

This regulation provides for the Regulations to commence on 1 January 2012.

 

Regulation 3 - Amendment of Migration Regulations 1994

 

Subregulation 3(1) provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.

 

Subregulation 3(2) provides that the amendments apply to a matter for which an obligation to pay a fee or charge is incurred on or after 1 January 2012.

Regulation 4 - Amendment of Migration Regulations 1994

 

Subregulation 4(1) provides that the Principal Regulations are amended as set out in Schedule 2.

 

Subregulation 4(2) provides that the amendments made by item [1] of Schedule 2 apply in relation to an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before 1 January 2012.

Subregulation 4(3) provides that the amendment made by item [2] of Schedule 2 applies in relation to an application for a visa made on or after 1 January 2012. 

Subregulation 4(4) provides that the amendment made by items [3] and [4] of Schedule 2 applies in relation to an application for a visa made on or after 1 January 2012.

 

Regulation 5 - Amendment of Australian Citizenship Regulations 2007

 

Subregulation 5(1) provides that the Australian Citizenship Regulations 2007 (the Citizenship Regulations) are amended as set out in Schedule 3.

 

Subregulation 5(2) provides that the amendments made by Schedule 3 apply in relation to an application made under Division 2, 3 or 4 of Part 2 of the Australian Citizenship Act 2007 (the Citizenship Act) on or after 1 January 2012.

 

 

 

Regulation 6 - Amendment of Migration Agents Regulations 1998 -- Schedule 4

 

Subregulation 6(1) provides that Schedule 4 amends the Migration Agents Regulations 1998.

 

Subregulation 6(2) provides that the amendments made by Schedule 4 apply in relation to an application for a registration as a migration agent made on or after 1 January 2012. 

 

Regulation 7 - Amendment of Migration Regulations 1994 - Schedule 5

Subregulation 7(1) provides that Schedule 5 amends the Principal Regulations.

Paragraph 7(2)(a) provides that the amendments made by Schedule 5 apply in relation to an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 1 January 2012.

Paragraph 7(2)(b) provides that the amendments made by Schedule 5 apply in relation to an application for a visa made on or after 1 January 2012.

 

 

 

 

 

 

 

Schedule 1 - Amendments of Migration Regulations 1994 relating to charges

Item [1] - Schedule 1 - subparagraph 1217A(2)(a)(i)

This item substitutes existing subparagraph 1217A(2)(a)(i) of Schedule 1 to the Principal Regulations with new subparagraph 1217A(2)(a)(i).  New subparagraph 1217A(2)(a)(i) provides that:     

(i)                 Subject to subparagraphs (ii), (iii) and (iv):

(A)  an applicant who makes an application of the kind mentioned in paragraph (1)(a): $140; and

(B)  an applicant who makes an application of the kind mentioned in paragraph (1)(b): $120.     

The purpose of this amendment is to require applicants for a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa to pay a first instalment on their visa application charge (VAC) of $140.  This is distinct from applicants for a Subclass 679 (Sponsored Family Visitor) visa, who are required to pay a first instalment on their VAC of $120.  Currently, applicants for both visa subclasses are required to pay $120.         

Item [2] - Further amendments of Schedule 1

Permanent Visas

This item amends Schedule 1 to the Principal Regulations to reflect adjustments to VACs for Permanent visas by substituting the amended visa application charges as set out in the table below: 

 

Provision	omit	insert
Paragraph 1104A(2)(a)	$5,745	$6 030
Subparagraph 1104B(2)(a)(ii)	$1,650	$1 895
Paragraph 1112(2)(a)	$1,995	$2 095
Paragraph 1113(2)(a)	$2,960	$3 105
Subparagraph 1114(2)(a)(iii)	$1,995	$2 095
Subparagraph 1114A(2)(a)(v)	$2,960	$3 105
Subparagraph 1121(2)(a)(iii)	$1,995	$2 095
Subparagraph 1121A(2)(a)(iv)	$2,960	$3 105
Subparagraph 1128(2)(a)(i)	$260	$300
Subparagraph 1128(2)(a)(ii)	$260	$300
Sub-sub-subparagraph 1136(2)(a)(i)(E)(II)	$270	$315

 

 

 

Temporary Visas

This item amends Schedule 1 to the Principal Regulations to reflect adjustments to VACs for Temporary visas by substituting the amended visa application charges as set out in the table below:

 

Provision	omit	insert
Paragraph 1216(2)(a)	$140	$160
Sub-subparagraph 1218(2)(a)(ii)(B)	$260	$290
Subparagraph 1222(2)(a)(iv)	$565	$535
Subparagraph 1223A(2)(a)(i)	$120	$140
Subparagraph 1223A(2)(a)(iii)	$305	$350
Subparagraph 1228(2)(a)(ii)	$270	$315
Subparagraph 1229(2)(a)(i)	$270	$315
Paragraph 1302(2)(a)	$105	$125

The effect of these amendments is to amend the Principal Regulations to give effect to a recent Government decision to reform visa pricing.         

The pricing changes have been informed by international benchmarking taking into account the costs of processing and the relative value of each visa. 

The effect of these amendments is to increase the VAC for some visas by between 5 and 15 percent.  The VAC for Student visas is decreased by 5 percent.

The increases to base visa application charges in these items do not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997.     

 

 

Schedule 2 - Amendments of Migration Regulations 1994 relating to bridging visas

Item [1] - Schedule 2, subparagraph 050.613A(1)(a)(ii)

This item omits reference to "1999; or" and inserts "1999; and" in                                subparagraph 050.613A(1)(a)(ii) of Schedule 2 to the Principal Regulations.

The Migration Amendment Regulations 2009 (No. 6), which commenced on 1 July 2009, substituted paragraphs 050.613A(1)(b) and (c) of Schedule 2 to the Principal Regulations with new paragraph 050.613A(1)(b) only.  As part of this amendment, subparagraph 050.613A(1)(a)(ii) was amended to change "1999; and" to "1999; or".  An unintentional result of this amendment was that condition 8101 is imposed when either paragraph 050.613A(1)(a) or 050.613A(1)(b) applies.  Paragraph 050.613A(1)(a) applies to every applicant for a Protection visa and so condition 8101 applies to each of those applicants irrespective of whether or not paragraph 050.613(1)(b) also applied to them.  To have paragraph 050.613A(1)(b) in the alternative has rendered that paragraph redundant. 

The purpose of this item is to reinstate reference to "1999; and" in                                subparagraph 050.613A(1)(a)(ii).  This item clarifies that paragraphs 050.613A(1)(a) and (b) should operate cumulatively. 

Item [2] - Schedule 2, clause 051.513

This item substitutes current clause 050.513 in Schedule 2 to the Principal Regulations. 

The Migration Legislation Amendment Regulations 2011 (No. 1), which commenced on                 1 July 2011 clarified which subclass of Bridging E (Class WE) visa (BVE) is to be granted to eligible non-citizens in immigration detention by operation of law, if no decision has been made to grant or refuse to grant that visa, under section 75 of the Act. 

An unintended consequence associated with this amendment to Subclass 051 visas granted to eligible non-citizens under section 75 of the Act in circumstances where:

• the non-citizen has applied for judicial review of a decision to refuse to grant a Protection visa; or
• the Minister has applied for judicial review of a decision in relation to the non-citizen's Protection visa application

is that the visa will not cease to be in effect at the conclusion of the judicial review proceedings, since the "when the visa is in effect" clauses in Division 051.5 in Schedule 2 currently do not have cessation events relevant to Subclass 051 visas sought on the basis of judicial review proceedings but granted under section 75.     

 

 

 

 

New subclause 051.513(1) provides that, in the case of a subclass 051 visa that is taken to have been granted by operation of section 75 of the Act and that was not applied for on the basis of judicial review, that visa comes into effect on grant and permits the applicant to remain in Australia until:

(a)    either:

(i)                 if the Minister's decision in respect of the protection visa application is to grant a visa - the grant of the visa; or

(ii)               if the Minister's decision in respect of that application is to refuse to grant a visa - 28 days after the holder is notified of that refusal; or

(b)   if the protection visa application is refused and the holder applies for merits review of that decision - 28 days after notification of the decision of the final review authority appealed to; or

(c)    the grant of a further bridging visa to the holder in respect of his or her protection visa application; or

(d)   if the holder withdraws the application for the protection visa or for review - 28 days after that withdrawal.

New subclause 051.513(1) mirrors existing clause 051.513 and is renumbered to cater for the insertion of new subclause 051.513(2).     

New subclause 051.513(2) provides that, in the case of a Subclass 051 visa that is taken to have been granted by operation of section 75 of the Act and that was applied for on the basis of judicial review, that bridging visa comes into effect on grant and permits the applicant to remain in Australia until:

(a)    if another bridging visa is granted to the holder in respect of his or her application for judicial review - the grant of that bridging visa; or

(b)   subject to paragraph (d), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or

(c)    if the applicant withdraws the application for judicial review - 28 days after that withdrawal; or

(d)   if a court remits a matter to which the judicial review proceedings relate to a review authority, or to the Minister for reconsideration - permitting the holder to remain in Australia in accordance with the relevant provision of clause 051.511. 

New subclause 051.513(2) provides that a Subclass 051 visa granted under section 75 ceases to be in effect 28 days after the completion of judicial review proceedings.  The 28 day period aligns with timeframes associated with other cessation provisions related to judicial review proceedings in clause 051.512. 

 

 

Item [3] and [4] - Schedule 8, subclauses 8107(3) and 8107(3B)

This item inserts ", or the last substantive visa held by the applicant was," after "If the visa is" into subclauses 8107(3) and 8107(3B) in of Part 3 of Schedule 8 to the Principal Regulations. 

The Migration Legislation Amendment Regulations 2011 (No. 1 ), which commenced on                1 July 2011, inserted condition 8107 as a mandatory condition attached to Subclass 010 Bridging A (Class WA) visas (BVAs) and Subclass 020 Bridging B (Class WB) visas (BVBs) granted to a person who made a valid application for a Subclass 457 visa at the time when the person who made that application held a Subclass 457 visa that was subject to that condition. 

Because subclauses 8107(3) and 8107(3B) currently only apply where the visa to which the condition is attached is a Subclass 457 visa, the addition of condition 8107 to BVAs and BVBs has had no meaningful effect.  Condition 8107 limits the work that can be undertaken by the visa holder.  It is intended that non-citizens who hold a BVA or BVB while transitioning from one Subclass 457 visa to another should be subject to the same work limitation that they are subject to while they hold a Subclass 457 visa.     

The amendment achieves that purpose by extending subclause 8107(3) and subclause 8107(3B) to circumstances where the last substantive visa held by the holder of the BVA or BVB was a Subclass 457 visa.     

 

Schedule 3 - Amendments of Australian Citizenship Regulations 2007 relating to foreign currency

Item [1] - Subregulation 12A(7), definition of conversion instrument

This item amends the definition of "conversion instrument" currently in subregulation 12A(7) of the Australian Citizenship Regulations 2007 (Citizenship Regulations) by omitting "(IMMI 11/007) that commenced on 1 July 2011." and inserting "(IMMI 11/056) that commenced on         1 January 2012."

New definition of "conversion instrument"

The definition of "conversion instrument" is relevant to provisions in the Citizenship Regulations which allow a person who makes an application under the Citizenship Act to pay the prescribed fee in a foreign currency specified in the conversion instrument.

The new definition of "conversion instrument" incorporates, by reference, a new instrument titled "Payment of Visa Application Charges and Fees in Foreign Currencies", (IMMI11/056) made under subregulation 5.36(1A) of the Principal Regulations.  The new instrument commences on    1 January 2012 and sets out application fee amounts in foreign currencies which would correspond to amounts payable in Australian dollars. 

Amending the definition of "conversion instrument" allows a person to pay the fee for an application made under the Citizenship Act in a foreign currency.  Without this amendment, it is possible that clients making applications at overseas posts would suffer hardship, as there would be no provision in the Citizenship Regulations to indicate how much application fee would be payable in a currency other than the Australian dollar.

Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible to incorporate, by reference, the instrument made under subregulation 5.36(1A) of the Principal Regulations as in force from time to time.  Rather, the new instrument would have to be incorporated, by reference, at the time of commencement of the amending regulations.

Instruments made under the Principal Regulations are incorporated in the Citizenship Regulations because the Citizenship Act does not currently permit the Minister for Immigration and Citizenship to make instruments under the Citizenship Regulations.

Item [2] - Subregulation 12A(7), definition of places and currencies instrument

This item amends the definition of "places and currencies instrument," currently in subregulation 12A(7) of the Citizenship Regulations, by omitting "(IMMI 11/008) that commenced on 1 July 2011." and inserting "(IMMI 11/057) that commenced on 1 January 2012".

New definition of "places and currencies instrument"

The definition of "places and currencies instrument" is relevant to provisions in the Citizenship Regulations which allow a person, who makes an application under the Citizenship Act, to pay the prescribed fee in a foreign country and a foreign currency specified in the places and currencies instrument.     

The new definition of "places and currencies instrument" incorporates, by reference, a new instrument titled "Places and Currencies for Paying of Fees" (IMMI11/057) made under subregulation 5.36(1) of the Principal Regulations.  The new instrument commences on                 1 January 2012 and sets out the places and currencies for the payment of fees.     

Amending the definition of "places and currencies instrument" allows a person to pay the fee for an application made under the Citizenship Act in a foreign country and using a foreign currency.  Without this amendment, clients making applications at overseas posts may suffer hardship, since they would not be able to pay application fees in the country they are in, or in a currency other than the Australian dollar.

Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible to incorporate, by reference, the instrument made under subregulation 5.36(1) of the Principal Regulations as in force from time to time.  Rather, the new instrument would need to be incorporated, by reference, at the time of commencement of the amending Regulations.

Instruments made under the Migration Regulations are incorporated in the Citizenship Regulations because the Citizenship Act does not currently permit the Minister for Immigration and Citizenship to make instruments under the Citizenship Regulations.

Because the amendments would not be likely to have a direct, or a substantial indirect, effect on business or restrict competition, or impact significantly on other government departments, non-government organisations, businesses or other interested parties, no consultation outside the Department of Immigration and Citizenship was undertaken.     

 

Schedule 4 - Amendments of Migration Agents Regulations 1998 relating to migration agents

Item [1] - Schedule 2, subparagraph 1.10(b)(i)

This item substitutes current subparagraph 1.10(b)(i) of Schedule 2 to the Migration Agents Regulations 1998 (the Migration Agents Regulations) with new subparagraphs 1.10(b)(i) and (ia). 

Clause 1.10 of Schedule 2 to the Migration Agents Regulations sets out the aims of the Code of Conduct for migration agents.  Paragraph 1.10(b) provides that an aim of the Code is to set out the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent under the Code.  Subparagraph 1.10(b)(i) currently provides that these attributes and abilities include being of good character. 

The effect of the amendment is to include among the attributes and abilities that a person must demonstrate to perform as a registered migration:

• being a fit and proper person to give immigration assistance; and
• being a person of integrity and good character. 

The purpose of the amendment is to amend the aims of the Code to achieve consistency with the language used in section 290 of the Migration Act.  Section 290 of the Migration Act is entitled 'Applicant must not be registered if not a person of integrity or not fit and proper'.     

Item [2] - Schedule 2, clause 2.3A

This item substitutes current clause 2.3A in Schedule 2 to the Migration Agents Regulations with a new clause. 

Clause 2.3A of Schedule 2 to the Migration Agents Regulations currently provides that a registered migration agent's professionalism must be reflected in the making of adequate arrangements to avoid financial loss to a client. 

Subsection 292B(1) of the Migration Act provides that an applicant for registration as a migration agent must not be registered unless he or she holds professional indemnity insurance of a kind prescribed by the regulations.  For the purposes of subsection 292B(1) of the Act,       subregulation 6B(1) of the Migration Agents Regulations 1998 prescribes professional indemnity insurance for at least $250,000 held by an individual or by an organisation of which the individual is a director, employee or member.  Subregulation 6B(2) provides that a migration agent is taken to have complied with this requirement if:

• he or she has satisfied the Migration Agents Registration Authority that he or she has a current legal practising certificate; and
• belongs to a category of persons who are subject to a requirement to hold professional indemnity insurance in relation to the holding of a current legal practising certificate.  

The effect of the amendment is to provide that the concept of avoiding financial loss to a client includes the holding of professional indemnity insurance mentioned in regulation 6B for the period of the migration agent's registration. 

The purpose of the amendment is to ensure that registered migration agents hold professional indemnity insurance during the entire period that they are registered.  It is intended that this measure will provide better protection to consumers.     

Item [3] - Schedule 2, clause 2.7

This item substitutes current clause 2.7 of Schedule 2 to the Migration Agents Regulations with a new clause. 

Clause 2.7 of Schedule 2 to the Migration Agents Regulations currently provides that a registered migration agent who is asked by a client to give his or her opinion about the probability of a successful outcome for the client's application must not hold out unsubstantiated or unjustified prospects of success when advising clients on applications under the Migration Act or Migration Regulations. 

The effect of the amendment is to:

*         retain the current requirement in a new paragraph (c), with a new reference to the advising of clients being orally or in writing; and

*         add a new requirement in paragraph (a) that the migration agent must give the advice in writing within a reasonable time; and

*         provide in paragraph (b) that the migration agent may also give the advice orally to the extent that the oral advice is the same as the written advice. 

The purpose of the amendment is that registered migration agents must provide their advice to their clients in writing.  This would provide better consumer protection and reduce the potential for miscommunication. 

Item [4] - Schedule 2, clause 2.9

This item amends clause 2.9 of Schedule 2 to the Migration Agents Regulations  by omitting "While a registered migration agent cannot be responsible for misinformation provided by a client, a registered migration agent" and inserting "A registered migration agent".

Clause 2.9 of Schedule 2 to the Migration Agents Regulations currently provides that, while a registered migration agent cannot be responsible for misinformation provided by a client, a registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.

The effect of the amendment is to omit the reference that a registered migration agent cannot be responsible for misinformation provided by a client.  The purpose of the amended clause is to place greater emphasis on a migration agent's action, knowledge and belief. 

Item [5] - Schedule 2, clause 2.9A

This item amends clause 2.9A of Schedule 2 to the Migration Agents Regulations by omitting the words "seek to". 

 

Clause 2.9A of Schedule 2 to the Migration Agents Regulations currently provides that, in communicating with, or otherwise providing information to, the Authority, a registered migration agent must not seek to mislead or deceive the Authority, whether directly or by withholding relevant information.

The effect of the amendment is to remove the mental element inherent in the words 'seek to' so that the focus is on the action of the registered migration agent.  That is, a registered migration agent must not mislead or deceive the Migration Agents Registration Authority, whether directly or by withholding relevant information, in communicating with the Authority or otherwise providing information to the Authority.

The purpose of the amendment is to draw a closer parallel between an agent's obligations under the Code and consumer protection legislation.     

Item [6] - Schedule 2, clause 2.19

This item amends clause 2.19 of Schedule 2 to the Migration Agents Regulations inserting "or a review authority" after "Department". 

Clause 2.19 of Schedule 2 to the Migration Agents Regulations currently provides that, subject to a client's instructions, a registered migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria. For example, a registered migration agent must avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval. 

The effect of the amendment is that the duty of a registered migration agent expressed in clause 2.9 in relation to the Department also applies in relation to a review authority.  That is, subject to a client's instructions, a registered migration agent has a duty to provide sufficient relevant information to the Department or a review authority to allow a full assessment of all the facts against the relevant criteria.  This is the purpose of the amendment.        

Item [7] - Schedule 2, paragraph 2.20(b)

This item amends paragraph 2.20(b) of Schedule 2 to the Migration Agents Regulations by omitting "tell the client" and inserting "give the client written advice of". 

Paragraph 2.20(b) of Schedule 2 to the Migration Agents Regulations currently provides that a registered migration agent must tell the client the amount of each visa application charge and all other fees or charges required to be paid for a client's visa application under the Migration Act or the Migration Regulations. 

The effect of the amendment is that, instead of telling the client the amount of each fee and charge, a registered migration agent must give the client written notice of the amount of each fee and charge.  This will provide better consumer protection.        

Item [8] - Schedule 2, paragraph 2.20(c)

This item amends paragraph 2.20(c) of Schedule 2 to the Migration Agents Regulations by omitting "tell the client" and inserting "give the client written advice of".

 

Paragraph 2.20(c) of Schedule 2 to the Migration Agents Regulations currently provides that, if a registered migration agent is to pay an amount for the client -- the registered migration agent must tell the client the date by which the amount must be given to the agent so that the interests of the client are not prejudiced. 

The effect of the amendment is that, instead of telling the client the date by which the amount must be given to the agent so that the interests of the client are not prejudiced, a registered migration agent must give the client written notice of that date.  This will provide better consumer protection.        

Item [9] - Schedule 2, paragraph 2.20(d)

This item amends paragraph 2.20(d) of Schedule 2 to the Migration Agents Regulations by omitting "notice" and inserting "a written notice". 

Paragraph 2.20(d) of Schedule 2 to the Migration Agents Regulations currently provides that a registered migration agent must give the client notice of each amount paid by the agent for the client. 

The effect of the amendment is that a registered migration agent must give the client a written notice, and not merely notice, of each such amount.  This will provide better consumer protection.     

Item [10] - Schedule 2, clause 2.22B

This item substitutes clause 2.22B in Schedule 2 to the Migration Agents Regulations with a new clause. 

Clause 2.22 B of Schedule 2 to the Migration Agents Regulations currently provides that a registered migration agent must notify the Migration Agents Registration Authority in writing within 14 days of any changes to the registration details of the agent in relation to the agent's full name; any business names of the agent or the agent's employer; the business address for the agent; the telephone number for contacting the agent; and any of the matters mentioned in         paragraphs 3V(a) to (da) of the Migration Agents Regulations. 

The effect of the amendment is to retain the current content of clause 2.22B in a new paragraph 2.22B(a) and provide further requirements in new paragraphs 2.22B(b)(i) and (ii) that a registered migration agent must notify the Migration Agents Registration Authority of the matters mentioned in paragraph 2.22B(a):

*         in advance (subparagraph 2.22B(b)(i)); or

*         not later than 14 days (subparagraph 2.22B(b)(ii). 

The purpose of the amendment is to align the temporal elements of a registered migration agent's notification obligations in clauses 2.22B and 3.5.     

Item [11] - Schedule 2, clause 3.5

This item amends clause 3.5 of Schedule 2 to the Migration Agents Regulations by omitting "notice" and inserting "a written notice". 

Clause 3.5 of Schedule 2 to the Migration Agents Regulations currently provides that, if a registered migration agent changes his or her address, telephone number or any other details that are recorded on the Register of Migration Agents, the agent must give notice to the Department, the Authority, any review authority and all current clients of the agent either in advance or not later than 7 days after the change or changes if advance notice would be unreasonable in the circumstances. 

The effect of the amendment is that the notice that the agent must give must be a written notice.  This will provide better consumer protection.      

Item [12] - Schedule 2, paragraph 3.5(b)

This item amends paragraph 3.5(b) of Schedule 2 to the Migration Agents Regulations by omitting "7 days" and inserting "14 days". 

Paragraph 3.5(b) of Schedule 2 to the Migration Agents Regulations currently provides an alternative period of 7 days for giving notice after a change or changes in registered migration agent's details that are recorded on the Register of Migration Agents, if advance notice would be unreasonable in the circumstances. 

The effect of this amendment is to change that period from 7 days to 14 days.      

The purpose of the amendment is to align the temporal elements of a registered migration agent's notification obligations in clauses 2.22B and 3.5.     

Item [13] - Schedule 2, paragraphs 5.2(a) to (c)

This item substitutes paragraphs 5.2(a) to (c) in Schedule 2 to the Migration Agents Regulations with new paragraphs. 

Currently, paragraphs 5.2(a) to (c) in Schedule 2 to the Migration Agents Regulations provide that a registered migration agent must:

                (a)    before starting work for a client, give the client:

                          (i)    an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and

                         (ii)    an estimate of the time likely to be taken in performing a service; and

               (b)    as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and

                (c)    give the client written confirmation of the terms of the service to be rendered. 

 

 

 

 

 

 

 

The effect of the amendments is that:

*         in the new subparagraph 5.2(a)(i) substituted in Schedule 2 to the Migration Agents Regulations:

o   the reference to 'fees in the form of charges' has become a reference to 'charges in the form of fees', making the reference more consistent with common terminology and with subsection 313(1) of the Act which uses the term 'fees' in the context of a reward for services. 

o   the reference to 'service' in the current subparagraph 5.2(a)(i) has become a reference to 'service to be performed', making it clearer that it is a reference to a future action; 

o   the reference to 'work' in the current subparagraph 5.2(a)(i) has become a reference to 'services to be performed', making it clearer that it is a reference to future actions and to the service to be performed as previously mentioned in the subparagraph. 

*         in the new subparagraph 5.2(a)(ii) substituted in Schedule 2 to the Migration Agents Regulations, the reference to 'service' has become a reference to the 'services to be performed', making it clearer that this relates to the services mentioned in subparagraph 5.2(a)(i) as amended; 

*         in the new paragraph 5.2(b) substituted in Schedule 2 to the Migration Agents Regulations, the reference to 'terms of the work to be done' in the current paragraph 5.2(b) has been replaced with a reference to an 'estimate of fees and estimate of the time likely to be taken for the services to be performed'.  This provides a clearer link to the provisions of paragraph 5.2(a) as amended;

*         in the new paragraph 5.2(c) substituted in Schedule 2 to the Migration Agents Regulations, the requirement in the current paragraph 5.2(c) that a registered migration must give the client 'written confirmation of the terms of the services to be rendered' has been replaced with a requirement that a registered migration agent must give the client written confirmation, in an Agreement for Services and Fees, of :

o   the 'services to be performed;

o   the fees for the services; and

o   disbursements that the registered migration agent is likely to incur as art of the services. 

The purpose of the amendment is to provide a clearer link between clauses 5.2 and 5.5 to ensure that registered migration agents comply with their obligations and that consumers are fully aware of the breakdown of fees charged for services performed on their behalf.     

 

 

 

Item [14] - Schedule 2, clause 5.4

This item amends clause 5.4 in Schedule 2 to the Migration Agents Regulations by omitting "advise clients" and inserting "give clients written advice". 

The effect of this amendment is that a registered migration agent must give clients written advice, and not merely advise clients, of the method of payment of fees and charges, including Departmental fees and charges.  This will provide better consumer protection.     

Item [15] - Schedule 2, paragraph 5.5 (a)

This item amends paragraph 5.5(a) in Schedule 2 to the Migration Agents Regulations by inserting "to be performed that is consistent with the services, fees and disbursements in the Agreement for Services and Fees mentioned in clause 5.2" after "services". 

Paragraph 5.5(a) in Schedule 2 to the Migration Agents Regulations currently provides that a registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services. 

The effect of this amendment is to require that the statement of services referred to in paragraph 5.5(a) is to be consistent with the Agreement for Services and Fees mentioned in clause 5.2 as amended by these regulations. 

The purpose of the amendment is to provide a clearer link between clauses 5.2 and 5.5 to ensure that registered migration agents comply with their obligations and that consumers are fully aware of the breakdown of fees charged for services performed on their behalf.     

Item [16] - Schedule 2, after paragraph 5.5(a)

This item amends paragraph 5.5(a) in Schedule 2 to the Migration Agents Regulations by inserting a note after the paragraph. 

The effect of this amendment is to alert the reader that the statement of services referred to in paragraph 5.5(a) may be an itemised invoice or account, as mentioned in clauses 7.2 and 7.4 in Schedule 2 to the Migration Agents Regulations.  The purpose of the amendment is to provide guidance about what a statement of services might be.     

Item [17] - Schedule 2, paragraph 7.2(b)

This item substitutes paragraph 7.2(b) in Schedule 2 to the Migration Agents Regulations with a new paragraph. 

Clause 7.2 of Schedule 2 to the Migration Agents Regulations currently provides that a registered migration agent must hold, in the clients' account, an amount of money paid by a client for an agreed block of work until the agent has completed the services that comprise the block of work and until an invoice has been issued to the client for the services. 

The effect of this amendment is to provide instead that a registered migration agent must hold, in a clients' account, an amount of money paid by the client for an agreed block of work until the agent has completed the services that comprise the block of work and until an invoice has been issued to the client for the services performed in accordance with the Agreement for Services and Fees mentioned in clause 5.2 (as amended by these regulations), showing each service performed and the fee for each service. 

The purpose of the amendment is to make a registered migration agent's obligation under clause 7.2 consistent with the requirement in section 313 of the Migration Act to provide a statement of services.

Item [18] - Schedule 2, paragraph 7.4(d)

This item substitutes paragraph 7.4(d) in Schedule 2 to the Migration Agents Regulations with a new paragraph. 

Paragraph 7.4(b) of Schedule 2 to the Migration Agents Regulations currently provides that a registered migration agent must keep records of the clients' account, including (among other things listed in clause 7.4) copies of invoices or accounts rendered in relation to the account. 

The effect of this amendment is to provide instead that a registered migration agent must keep records of the clients' account, including (among other things listed in clause 7.4) statements of services (which are mentioned in section 313 of the Act) and copies of invoices or accounts rendered in relation to the account.  This will provide better consumer protection.

Schedule 5 - Amendment of Migration Regulations 1994 relating to assurances of support

Item [1] - Schedule 2, clauses 100.223, 100.323, 300.225, 300.325, 309.227, 309.325, 801.222, 801.322, 820.222, 820.322

This item omits clauses 100.223, 100.323, 300.225, 300.325, 309.227, 309.325, 801.222, 801.322, 820.222 and 820.322 in Schedule 2 to the Principal Regulations.

This amendment complements changes to the Social Security Act 1991 under the Social Security and Other Legislation Amendment Bill 2011.  The Bill has passed through both Houses of Parliament and, subject to receiving Royal Assent, is expected to take effect from 1 January 2012. 

The purpose of this amendment is to restrict provisional partner visa holders' access to Special Benefit during the Newly Arrived Residents Waiting Period.  Provisional partner visas are temporary visas granted to people applying for permanent partner visas.   

The amendments remove the Assurance of Support requirement from Partner visa applicants.  An Assurance of Support may still be requested if a decision maker reasonably believes that the applicant who seeks to satisfy the primary criteria is likely to need any of the social security allowances that are recoverable under the Assurance of Support scheme. 

The effect of the amendment to the Social Security Act 1991 is that if, on or after 1 January 2012, a person makes a claim for special benefit and holds a visa listed in a Determination by the Minister for Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) by legislative instrument, then the person is subject to the newly arrived resident's waiting period under section 739A of the Social Security Act 1991 (unless an exception applies). 

An Assurance of Support is an undertaking by an assurer to repay the Department of Human Services certain recoverable benefits paid to a visa applicant during the first two years after their arrival in Australia or grant of the relevant visa.  Currently, an Assurance of Support may be required before an applicant can be granted a provisional partner visa.  As a matter of policy, an Assurance of Support is requested if the Minister of Immigration and Citizenship assesses that the applicant is likely to access a recoverable payment during the period of the assurance.  In this fashion, the Assurance of Support scheme acts to restrict access to Special Benefits during the Newly Arrived Residents Waiting Period. 

Given that the amendments in the Social Security and Other Legislation Amendment Bill 2011 apply new restrictions on access to Special Benefit for Provisional Partner visa holders, the discretionary Assurance of Support requirement will become redundant for these visas.   

The amendments to the Principal Regulations remove the discretionary Assurance of Support requirement for non-citizens who apply for a provisional partner visa on or after 1 January 2012 or whose application was not finally determined before 1 January 2012.