'Immigration assistance' is defined in section 276 of the Migration Act 1958 (the Act). Generally, immigration assistance is when a person uses knowledge of, or experience in, migration procedures (even without formal qualifications) to:
- help prepare a visa application
- advise a visa applicant about their application
- help prepare a document in connection with the sponsorship of a visa applicant, or advising the sponsor
- prepare for proceedings, before a court or a merits review tribunal (such as the Administrative Appeals Tribunals), or represent someone at those proceedings, unless you are a lawyer
- help, or help to prepare, a request to the Minister to exercise certain powers under the Act in relation to a visa applicant
Activities not regarded as immigration assistance include:
- clerical work to prepare (or help prepare) an application or other document.
The term clerical work includes, but is not be limited to:
- typing answers into an application/document
- writing answers into an application/document
- translating answers into an application/document
- photocopying an application/document
- collating documents
- indicating where certain information should go in an application form
- paying the Visa Application Charge
- physically lodging an application
- posting or emailing an application/document.
- providing translation or interpretation services to help prepare an application or other document
- advising another person that the other person must apply for a visa
- passing on information produced by a third person, without giving substantial comment on or explanation of the information.
Providing immigration assistance
Section 280 of the Act states that a person who is not a registered migration agent must not give immigration assistance, unless one of the limited exemptions applies. This is the case even if a fee is not charged.
Giving immigration assistance without being a registered migration agent is an offence of ‘strict liability’, which means it does not have to be proven that a person intended to commit the offence – doing the act is itself enough for a conviction.
Australia’s migration laws can be complicated and difficult to apply in practice. The purpose of the migration agent registration requirements in the Act is to enable the Office of the Migration Agents Registration Authority (MARA) to:
- keep a public register of individuals who are registered migration agents, which is easily accessible by visa applicants and others. The register also shows details of agents who have been suspended or cautioned
- be satisfied that registered migration agents have the requisite degree of knowledge to give immigration assistance. For example, they may be required to complete a course in migration procedure, pass an exam and undertake continuing professional development
- be satisfied that a registered migration agent is a fit and proper person to give immigration assistance and is a person of integrity, and
- ensure a registered migration agent demonstrates an up-to-date and sound understanding of migration procedure.
We have found that visa applicants and other clients of unregistered migration agents are significantly more at risk of being given incorrect, incomplete or misleading advice. Also, clients of unregistered migration agents do not have the benefit of consumer protection.
Registered migration agents:
- must comply with a Code of Conduct
- must have professional indemnity insurance, and
- can be subject to sanctions by the Office of the MARA, such as being cautioned or having their registration suspended or cancelled.
Some categories of exempt people can give immigration assistance without being registered, provided they do not charge a fee or other reward. These people include:
- a close family member of the visa applicant, meaning the applicant's spouse, child, adopted child, parent, brother or sister
- the applicant's nominator or sponsor
- a member of, an office of an international organisation, a diplomatic mission or a consular post
- an Australian parliamentarian, including a Senator, Member of the House of Representatives, member of the Parliament of a state or member of the Legislative Assembly of a Territory
- an official acting in the course of his or her duties
- an employer assisting a migrating employee in certain circumstances
- a professional development sponsor in certain circumstances
- a person who is preparing, or helping to prepare a request to the Minister - to exercise his or her power under sections 351,391, 417, 454 or 501J, 195A, 197AB or 197AD of the Act.
Otherwise, you must be registered with the Office of the MARA to give immigration assistance, even if you do not charge a fee.
If you are one of the above categories and you charge a fee, you must be registered.
If a person who is not a registered migration agent gives immigration assistance unlawfully, they can be fined up to $6 600.
If the person asks for or receives any fee for giving immigration assistance or making immigration representations, the maximum penalty is imprisonment for 10 years.
If a person falsely represents that they are a registered migration agent, the maximum penalty is imprisonment for two years.