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The good that Registered Agents do

The Registered Migration Agent profession is an important profession.It is often asked “Does Australia really need another Registered Migration Agent?”, or “Why do we need so many Registered Migration Agents?”, or “…And why do we have an increase in the number of Registered Migration Agents Annually?”The picture of Registered Migration Agents (RMAs) as Tribunal and Ministerial Intervention Unit (MIU) gladiators fails to capture the way most RMAs work.Registered Migration Agents are needed because case officers exist.  You may ask what this means.Dean Robert Clark of Harvard Law School has aptly called this type of concept ‘normative ordering’.  RMAs, like other intermediaries between individuals and the state, help protect visa applicants from the danger of tyranny of the majority (DIBP).   RMAs create a form of public responsiblity that preserves democracy and diversity.

What does this mean?

Today many Australian visa applicants are distrustful of the Australian Department of Immigration and Border Protection (DIBP).  There is little wonder why this is the case when it, or a part of it, is set to change it’s name on 1 July 2015 to the ‘Australian Border Force’.    People wishing to migrate to Australia are suspicious about big government, DIBP bureauocracy and the sheer number of public servants held within it.

The DIBP is a heavily centralised government control.  There is the interesting flaw.  The DIBP is only the first level of ‘control’ of Australian borders.  That control is, in reality, quite feeble.  The DIBP would like the public to think that they are the first and the last gate and that nobody gets into Australia but by them.  This DIBP-created perception is nothing short of a complete farce.  The reality is that the DIBP component is the weakest lnk in the system.  It is simply the first line of visa application.  It is where public servants with very little training assess visa applications from non-citizens, day in and day out.  There are many levels above the DIBP.

Let’s have a look at the facts.  DIBP case officers (public servants) don’t go through the same complex training as RMAs. DIBP officers are trained occasionally in an ‘offline’ situation, but normally they are trained as they go along on the job. DIBP case officers do not undergo a university course like RMAs need to.  DIBP case officers do not undergo annual complex Continuing Professional Development (CPD) training for re-registration like a RMA must do every year.  This means that in comparion to an RMA, a DIBP officer is very under-trained, under-experienced and under-educated.  This is not their fault and this is not a put-down or an attempt to belittle DIBP officers, but is a true and accurate comparison between RMAs and DIBP officers. There are some great officers within the DIBP ranks and great sectional managers, but these people are few and far between.

The question needs to be asked, “If put to the test, how many case officers would pass the sound knowledge test?”

All one needs to look to is the percentage of visa refusals based on incorrect, incomplete or poor decision making by DIBP officers, which then get referred back to DIBP from the Tribunals.  When an Australian visa applicant, (generally with the help of a qualified RMA) appeals DIBP’s decision to cancel or refuse their visa, the referral rate back to the DIBP from the MRT-RRT has traditionally be very high.

As an experienced RMA, I can say with authority that DIBP officers and their supervisors do not take too much notice and/or don’t really care about the number of overturned cases based on poor decisions made on the visa applications. It is my experience that DIBP officers believe it is merely a normal course of action that Tribunals regularly overturn DIBP decisions.

Feedback to the DIBP officers occurs if there is a decision made by judicial review, which is almost always done with the assistance of a Registered Migration Agent.  In effect, Registered Migration Agents agitate for the rights of their Australian visa applicant clients.  RMAs, by appealing for their immigration clients, ask the Tribunals and the Australian courts to exercise immigration law correctly.  By listening to and heeding the advice of Registered Migration Agents, visa applicants can, in effect, regulate the DIBP.

Visa applicants and their RMAs can, and have totally bulldozed DIBP decisions.  They do this by having the DIBP decisions heard in Tribunals and Courts which sit above the DIBP, where suitably qualified and competent persons can assess the merits of the case.  It is through this process that cases refused by DIBP officers are then remitted back to the DIBP.   Then the DIBP usually overturn their original decision and it then becomes a visa approval.

However in the High Court case of Berenguel, even when the High Court found against the DIBP and their interpretation of the law concerning the timing of English language tests, DIBP continued bizarrely that the High Court had got it wrong.    When RMAs appeal matters for their clients through MIU and the Federal Court, precendents are set and DIBP must conform.

For the unwitting public who think that the DIBP are a good source of information regarding visa applications, think again.  The information on the DIBP website is paraphrased, based largely on ‘policy’ rather than the actual ‘law’ and is not complete or 100% correct.  The only correct information available can be found in a Professional Library.  A professional library contains the Migration Act, Migration Regulations and Schedules 1-8.  It also contains the Gazette Notices and the Procedures Advice Manuals.    RMAs all have a professional library.

If you are a vulnerable consumer and are considering submitting your own visa application then please, do not let anyone, including me, stop you.  I don’t take on clients any more and haven’t done for a long time now so this is not an attempt by me to attract new clients.  This is plain speaking about the reality of the Australian Immigration system.    My suggestions to anyone attempting to lodge an Australian visa application are as follows:

1/ The DIBP website is a simplified and paraphrased version of reality. It’s content misses important and integral information and does not include the actual law.

2/ The DIBP is not able to provide immigration advice, and case officers within the DIBP are the last people I would ask for expert Australian immigration law advice.  After all, case officers have to use a ‘policy’ manual which interprets the law for them, dumbing it down so that they can understand what the law is trying to say.  DIBP will say that the policy is there so that officers can take a consistent position where the law is ‘unclear’.  In short, the other way of looking at this is that DIBP officers are not skilled enough to read the legislation and interpret it using their own brains based on the case in front of them.    This is why a RMA is important.  We use the legislation and we force the DIBP officers to use it.  We don’t put up with ‘policy speak’.  If case officers can’t cope then we simply ask that the matter be elevated to their manager until we finally get to someone who knows how to read the law.  Sometimes even the Managers can’t do this and this is when cases need to be reviewed outside the DIBP.

3/ Listen to your RMA.  They are on your side.  The DIBP is not there to help visa applicants get an approval.  The DIBP is not your friend.  The DIBP can be ‘friendly’ in their manner but they don’t have an interest in the outcome.  They are so neutral towards visa applicants that their apathy and lack of competence can lead to catastrophic results for visa applicants with no consequences for the case officer.

4/ Unregistered Migration Agents (people masquerading as RMAs) aren’t trained or qualified but pretend to have contacts in the DIBP.  Imagine how shocking that advice would be.  The blind leading the blind.   Always speak to a RMA and always ask them for their Migration Agent Registration Number.  Always look them up on the Migration Agents Registration Authority website.

5/ If your DIBP case officer starts behaving in a contrary manner whilst assessing your visa application and you are self-represented then contact a RMA asap.  You might have a malicious case officer, a bully or someone who is just plain incompetent.  As a visa applicant you don’t need any of those features in a case officer.

I have spoken to an Accredited Specialist Immigration Lawyer with over 25 years experience in this field.

He said:

If DIBP was half-way competent and was capable of making a reasonable decision then I would have gone out of business 25 years ago.  The fact is I have made my career off the back of DIBP inconsistency, intransigence and incompetence’.