Division 3Amendments made by the Migration Legislation Amendment Regulation 2013 (No. 2)

## Part 1—Introductory #### 1 Name of Regulations These Regulations are the Migration Agents Regulations 1998. #### 3 Interpretation In these Regulations: > Act means the Migration Act 1958. > Authority means the Migration Agents Registration Authority. > consumer guide means the current version of the document produced for regulation 9A. > CPD activity means an activity that: (a) is specified in an instrument made under regulation 3AA; and (b) relates to a topic specified in an instrument made under regulation 3AA; and (c) is conducted by a CPD provider in accordance with any conditions specified for the activity in an instrument made under regulation 3AA. > CPD provider means a person for whom an approval under Part 3C as a CPD provider is in effect. > CPD provider standards has the meaning given by subregulation 9Q(2). > electronic communication has the meaning given by the Electronic Transactions Act 1999. > expiry day for an approval has the meaning given by subregulation 9R(3). > financial institution means a body corporate that, as part of its normal activities: (a) takes money on deposit and makes advances of money; and (b) does so under a regulatory regime, governed by the central bank (or its equivalent) of the country in which it operates, that the Minister is satisfied provides effective prudential assurance. > prescribed institution means: (a) an institution of higher education within the meaning of the Higher Education Funding Act 1988; or (b) Bond University, within the meaning of the Bond University Act 1987 of Queensland. > repeat registration: an individual applies for repeat registration if the individual: (a) applies for registration; and (b) has previously been registered at some time within the period of 3 years before making the application. > suitable mentoring arrangement means an arrangement between 2 registered migration agents under which one of the agents provides mentoring to the other agent about practice as a registered migration agent. > voluntary organisation means an organisation that provides immigration assistance without charging a fee. > Note: Examples of voluntary organisations are: (a) a non‑profit immigration advice organisation; and (b) a migrant resource centre; and (c) an ethnic community organisation. #### 3AA Instrument specifying matters relating to CPD activities The Minister may, by legislative instrument, specify any or all of the following matters: (a) activities; (b) topics to which activities may relate; (c) conditions for the conduct of activities; (d) the points that activities are worth; (e) activities that are mandatory and a minimum number of points for such activities. > Note: These matters are specified for the purposes of the definition of CPD activity in regulation 3 and for subregulation 6(1). ## Part 2—Immigration assistance given by persons not registered ### Division 2.1—Assistance given by employers and their employees #### 3A Definitions for Division 2.1 In this Division: > employee has the meaning given by regulation 3B. > employer has the meaning given by regulation 3B. > migrating employee, in relation to an employer, means an employee, or a prospective employee, of the employer: (a) whom the employer intends to sponsor or nominate for the Migration Regulations 1994; or (b) whom the employer is likely to sponsor or nominate for those Regulations. #### 3B Meaning of employer and employee For this Division, a person is the employer of an individual, and the individual is the employee of the person, if: (a) the person engages the individual to work in the person’s workplace for an indefinite period rather than for a specified term or for the duration of a specified task; and (b) the person is responsible for paying the individual’s salary or wages. #### 3BA Specification of kinds of visas for this Division The Minister may, by legislative instrument, specify kinds of visas for the purposes of this Division. #### 3C Assistance given to migrating employees For the purposes of subsection 276(4) of the Act, a person does not give immigration assistance if the person gives assistance referred to in subsection 276(1) or (2) of the Act in these circumstances: (a) the person is: (i) the employer or prospective employer of the person to whom the assistance is given; or (ii) an employee of the employer or prospective employer of the person to whom the assistance is given who is acting on the employer’s behalf; and (b) the person to whom the assistance is given is a migrating employee of the employer or prospective employer; and (c) the migrating employee has made or intends to make an application for a kind of visa specified in an instrument made under regulation 3BA; and (d) the assistance is given in relation to the application; and (e) the person giving the assistance is not a registered migration agent. #### 3D Representations made on behalf of migrating employees For the purposes of subsection 282(5) of the Act, a person does not make immigration representations if the person makes representations of the kind referred to in subsection 282(4) of the Act in these circumstances: (a) the person is: (i) the employer or prospective employer of the person on whose behalf the representations are made; or (ii) an employee of the employer or prospective employer of the person on whose behalf the representations are made who is acting on the employer’s behalf; and (b) the person on whose behalf the representations are made is a migrating employee of the employer or prospective employer; and (c) the migrating employee has made or intends to make an application for a kind of visa specified in an instrument made under regulation 3BA; and (d) the representations are made in relation to the application; and (e) the person making the representations is not a registered migration agent. ### Division 2.2—Assistance given by professional development sponsors #### 3E Definitions for Division 2.2 In this Division: > employee has the same meaning as in Division 2.1 (see regulation 3B). > professional development sponsor means an organisation that is sponsoring, or intends to sponsor, a person who is in a class of persons specified in an instrument made under regulation 3EA in relation to an application for a visa the person has made or intends to make. #### 3EA Specification of classes of persons for this Division The Minister may, by legislative instrument, specify classes of persons for the purposes of this Division. #### 3F Assistance given to professional development applicants For the purposes of subsection 276(4) of the Act, a person (the adviser) does not give immigration assistance if the adviser gives assistance referred to in subsection 276(1) or (2) of the Act to another person (the applicant) in these circumstances: (a) the adviser is: (i) a professional development sponsor of the applicant; or (ii) an employee of a professional development sponsor of the applicant who is acting on the sponsor’s behalf; and (b) the applicant is in a class of persons specified in an instrument made under regulation 3EA; and (c) the applicant has made or intends to make an application for a visa in relation to which the professional development sponsor has sponsored, or intends to sponsor, the applicant; and (d) the assistance is given in relation to the application; and (e) the adviser is not a registered migration agent. #### 3G Representations made on behalf of professional development applicants For the purposes of subsection 282(5) of the Act, a person (the adviser) does not make immigration representations if the adviser makes representations of the kind referred to in subsection 282(4) of the Act on behalf of another person (the applicant) in these circumstances: (a) the adviser is: (i) a professional development sponsor of the applicant; or (ii) an employee of a professional development sponsor of the applicant who is acting on the sponsor’s behalf; and (b) the applicant is in a class of persons specified in an instrument made under regulation 3EA; and (c) the applicant has made or intends to make an application for a visa in relation to which the professional development sponsor has sponsored, or intends to sponsor, the applicant; and (d) the representations are made in relation to the application; and (e) the adviser is not a registered migration agent. ### Division 2.3—Assistance given by other persons #### 3H Assistance given by close family members For the definition of close family member in subsection 280(7) of the Act, close family member, in relation to a person, means: (a) the person’s spouse; or (b) a child, adopted child, parent, brother or sister of the person. ### Division 2.4—Infringement notices relating to giving of immigration assistance #### 3I Definitions for Division 2.4 In this Division: > authorised officer includes the Secretary. > infringement notice means a notice under regulation 3J. > offence means a contravention of subsection 280(1) of the Act. > penalty means the penalty mentioned in paragraph 504(1)(ja) of the Act. > Note: Authorised officer is defined in subsection 5(1) of the Act. #### 3J When can an infringement notice be served? (1) If an authorised officer has reason to believe that a person has committed an offence, he or she may serve an infringement notice on the person in accordance with this Division. (2) To avoid doubt, if an authorised officer has reason to believe that a person has committed 2 or more offences of the same kind, he or she may serve a separate infringement notice on the person in accordance with this Division in respect of each alleged offence. #### 3K What must an infringement notice contain? (1) An infringement notice must: (a) state the name of the authorised officer who served the notice; and (b) set out the day on which, or period during which, the offence is alleged to have been committed; and (c) give brief particulars of the alleged offence; and (d) set out the penalty; and (e) state that, if the person on whom it is served does not wish the matter to be dealt with by a court, he or she may pay that penalty within 28 days after the date of service of the notice unless the notice is withdrawn before the end of that period; and (f) specify where and how that penalty may be paid; and (g) set out the procedures relating to the withdrawal of notices and the consequences of the withdrawal of a notice. (2) An infringement notice may contain any other information that the authorised officer considers necessary. #### 3L Can the time for payment be extended? If an infringement notice has been served on a person, an authorised officer may, if he or she is satisfied that in all the circumstances it is proper to do so, allow a further period for payment of the penalty, whether or not the period of 28 days after the date of service of the notice has expired. #### 3M What happens if the penalty is paid? (1) This regulation applies if the person on whom an infringement notice is served pays the penalty in relation to the alleged offence before the end of: (a) the period of 28 days after the date of service of the notice; or (b) if a further period has been allowed under regulation 3L—that further period. (2) Any liability of the person in relation to the alleged offence is discharged. (3) No further proceedings may be taken in relation to the alleged offence. (4) The person is not to be taken to have been convicted of the alleged offence. (5) However, this regulation does not apply if an infringement notice is withdrawn in accordance with regulation 3N, whether or not the penalty has been paid in accordance with subregulation (1). (6) If 2 or more infringement notices are served on a person in respect of separate alleged offences, this regulation applies only in respect of the alleged offence or offences in respect of which the penalty is paid in accordance with subregulation (1). #### 3N Can an infringement notice be withdrawn? If an infringement notice has been served on a person, an authorised officer may withdraw it by notice in writing served on the person in accordance with this Division, at any time before: (a) the end of 28 days after the date of service of the infringement notice; or (b) if a further period has been allowed under regulation 3L—the end of that further period. > Note: Example: An infringement notice may be withdrawn by an authorised officer for the purposes of further investigation of the alleged offence. #### 3O Refund of penalty if notice withdrawn If: (a) an infringement notice has been served on a person; and (b) the person has paid the penalty in accordance with the notice, or within any further period allowed under regulation 3L; and (c) the notice has been withdrawn; an authorised officer must arrange for the refund to the person of an amount equal to the amount paid. > Note: In accordance with subregulation 3M(5), if an amount is refunded to a person under regulation 3O in respect of a penalty paid in accordance with an infringement notice that has been withdrawn, regulation 3M does not apply in relation to the alleged offence for which the infringement notice was issued. Accordingly, the person’s liability in relation to the alleged offence is not discharged, further proceedings may be taken in relation to the alleged offence and the person may be convicted of the alleged offence. #### 3P Evidence (1) At the hearing of a prosecution for an offence specified in an infringement notice, a certificate signed by an authorised officer and stating: (a) that the authorised officer did not allow a further period under regulation 3L for payment of the penalty set out in the notice; and (b) that the penalty has not been paid in accordance with the notice; is evidence of those matters. (2) At the hearing of a prosecution for an offence specified in an infringement notice, a certificate signed by an authorised officer and stating: (a) that the authorised officer allowed, under regulation 3L, the further period specified in the certificate for payment of the penalty; and (b) that the penalty has not been paid in accordance with the notice or within the further time allowed; is evidence of those matters. (3) At the hearing of a prosecution for an offence specified in an infringement notice, a certificate signed by an authorised officer and stating that the notice was withdrawn on a day specified in the certificate is evidence of that fact. (4) A certificate that purports to have been signed by an authorised officer is taken to have been signed by that person unless the contrary is proved. #### 3Q Can there be more than one infringement notice for the same offence? If: (a) an infringement notice is served on a person in relation to an alleged offence; and (b) that infringement notice is withdrawn; nothing in this Division prevents a further infringement notice being served on the person in relation to that alleged offence. #### 3R What if payment is made by cheque? If a cheque is offered as payment of all or part of the amount of a penalty set out in an infringement notice, payment is taken not to have been made unless the cheque is honoured upon presentation. #### 3S Infringement notice not compulsory Nothing in this Division: (a) requires an infringement notice to be served on a person in relation to an alleged offence; or (b) affects the liability of a person to be prosecuted for an alleged offence if the person does not comply with an infringement notice; or (c) affects the liability of a person to be prosecuted for an alleged offence if an infringement notice is not served on the person in relation to the offence; or (d) affects the liability of a person to be prosecuted for an alleged offence if an infringement notice is served and withdrawn; or (e) limits the amount of the fine that may be imposed by a court on a person convicted of an offence. #### 3T How must a notice be served? A notice to be served in accordance with this Division must be served on a person by: (a) giving it to the person personally; or (b) sending it to the person’s residential or business address last known to the authorised officer. ## Part 3—Registered Migration Agents #### 3U Relation by employment (1) For subsection 278(2) of the Act, an individual is related by employment to another individual if both of them are employed by a third individual. (2) For subsection 278(2) of the Act, an individual is related by employment to another individual if: (a) one of the individuals holds 25% or more of the shares issued by a corporation that provides immigration assistance, or services including immigration assistance; and (b) the other individual is employed by the corporation. > Note: Immigration assistance is defined in section 276 of the Act. (3) For subsection 278(2) of the Act, an individual is related by employment to another individual if: (a) one of the individuals holds a charge (whether fixed or floating) or a mortgage or any other form of security over some or all of the assets of a business or corporation that provides immigration assistance, or services including immigration assistance; and (b) the other individual is employed by the business or corporation. > Note: Immigration assistance is defined in section 276 of the Act. #### 3V Information on the Register of Migration Agents For paragraph 287(2)(i) of the Act, the following matters are prescribed: (aa) the registered migration agent’s migration agent registration number; (a) the registered migration agent’s facsimile number; (b) the registered migration agent’s web site address; (c) the registered migration agent’s postal address; (d) the registered migration agent’s e‑mail address; (da) the registered migration agent’s association with the business shown on the Register; (e) if a decision has been made under section 303 of the Act to caution the registered migration agent, or to suspend or cancel the registered migration agent’s registration: (i) particulars of any application for review lodged by the agent against the decision; and (ii) particulars of any order by the Administrative Review Tribunal or a court to stay the decision. #### 3W Publication of names of former registered migration agents For subsection 287(3A) of the Act: (a) the prescribed way is by publishing the list on the Authority’s web site; and (b) the prescribed period is not later than 12 months after the date of publication. #### 3X Removal of disciplinary details from the Register of Migration Agents (1) For subsection 287(6) of the Act, if particulars of a caution that has ceased to have effect are recorded on the Register, the Authority must remove the details from the Register not later than 14 days after the caution has ceased to have effect. (2) For subsection 287(6) of the Act, if particulars of a suspension that has ceased to have effect are recorded on the Register, the Authority must remove the details from the Register not later than 14 days after the suspension has ceased to have effect. #### 3XAA Applications—publishing requirement For the purposes of subsection 288(2) of the Act, the prescribed period is 3 years. #### 3XA Application for repeat registration (1) An individual who applies for repeat registration must, if requested to do so by the Authority, give the Authority a statement in writing setting out the average fees charged by the individual, as a registered migration agent, during the period specified in the request. (2) The request: (a) must be made in writing; and (b) may be included in a form approved under regulation 11 for use in making applications for registration; and (c) must not specify a period that starts earlier than 3 years before the individual’s application for repeat registration. #### 3Y Time of registration application (1) This regulation is made for the purposes of subsection 288(4) of the Act (2) If a registration application is made in an approved form that is an interactive computer program, the day on which the application is taken to have been made is the day the completed application is received by the Authority. > Note: For the time of receipt of an electronic communication, see section 14A of the Electronic Transactions Act 1999. (3) If a registration application is made in an approved form that is a paper form, the day on which the application is taken to have been made is either: (a) if the application is sent by pre‑paid post—the day on which the application is delivered to the Authority’s post office box; or (b) the day on which a person gives the application by hand to a person employed by the Authority at an Authority office. > Note: A registration application must be made in a form approved in writing by the Authority (see subsection 288(3) of the Act). Under regulation 11, an approved form may be a paper form or an interactive computer program. #### 4 Publication of notice of intention to apply for registration (1) For subsections 288A(2) and (3) of the Act: (a) an individual; or (b) two or more individuals who are employees of the same employer; must publish the notice in the way set out in this regulation. (2) The notice must include the following information about the individual or each of the individuals: (a) full name; (b) any other name by which he or she is or has been known; (ba) present citizenship; (c) address for correspondence; (d) the physical address of any place at which the individual intends to practise as a registered migration agent; (e) if the individual intends to work as an employee: (i) the employer’s business name (if any); and (ii) the employer’s name and address for correspondence; and (iii) the employer’s business address; (f) if the individual does not intend to work as an employee: (i) the business name (if any) that the individual is proposing to use; and (ii) the individual’s address for correspondence; and (iii) the individual’s business address. (3) The notice must also state: (a) the address of the Authority for correspondence; and (b) that information about other applicants can be found on the Authority’s web site. > Note: The URL for the Authority’s web site is http://www.themara.com.au. (4) However, subregulations (2) and (3) do not require the individual or each of the individuals to include the same address more than once. (6) The notice must be published on the Registration Applicants page of the Authority’s web site for a continuous period of at least 30 days. > Note: The URL for the Authority’s web site is http://www.themara.com.au. #### 4A Requirement to provide further information For the purposes of paragraph 288B(2)(a) of the Act, the prescribed period is 28 days. #### 5 Prescribed qualifications (1) For the purposes of paragraph 289A(1)(b) of the Act, the prescribed period is 3 years. (2) For the purposes of paragraph 289A(2)(a) of the Act, the prescribed course is a course specified under subregulation (4). (3) For the purposes of paragraph 289A(2)(b) of the Act: (a) the prescribed examination is an examination specified under subregulation (4); and (b) the Minister may, under that subregulation, specify a minimum pass mark for the examination; and (c) the prescribed period is the period specified under that subregulation. (4) The Minister may, by legislative instrument, specify a matter for the purposes of subregulation (2) or (3). > Note: The instrument may make different provision with respect to different matters or different classes of matters (see subsection 33(3A) of the Acts Interpretation Act 1901, as applied by subsection 13(1) of the Legislation Act 2003). For example, the instrument could specify different examinations for different classes of persons. #### 6 Continuing professional development (1A) For the purposes of subsection 290A(1) of the Act, the prescribed period is 3 years. > Note: The effect of subsection 290A(1) of the Act, combined with this subregulation, is that section 290A of the Act (which relates to continuing professional development requirements) applies to applicants for repeat registration as defined in regulation 3 of this instrument. (1) For the purposes of subsection 290A(2) of the Act, the requirements for continuing professional development of a registered migration agent who makes an application for repeat registration are that, within the period applicable under subregulation (2): (a) the applicant completes CPD activities worth at least 10 points; and (b) the completed activities include activities specified in an instrument made under regulation 3AA as mandatory for the applicant and worth at least the minimum number of points specified in the instrument for such activities. (2) For the purposes of subregulation (1), the period is: (a) the 12 months ending on the day the application was made; or (b) if the Authority is satisfied that the applicant did not meet a requirement in subregulation (1) because of exceptional circumstances beyond the applicant’s control—the 15 months ending on the day that is 3 months after the day the application was made. (3) Points counted for the purposes of deciding an application cannot be counted again for the purposes of deciding a later application. (4) In order to satisfy the Authority that the applicant has met the requirements in subregulation (1), the applicant must: (a) include with the application a written notice that: (i) states that the applicant has met the requirements in subregulation (1); and (ii) includes a list of CPD activities completed by the applicant within the applicable period and the points the activities are worth; and (b) keep written records of activities completed by the applicant (including any confirmation of completion given by a CPD provider), sufficient to enable the Authority to assess whether the activities are properly regarded as CPD activities; and (c) show the Authority the records on request. (5) Records kept for the purposes of paragraph (4)(b) must be: (a) in English; and (b) kept for at least 2 years after the end of the period of registration in which the activity was completed. #### 6A Continuing professional development—lawyers who hold practising certificates Regulation 6 does not apply in relation to an application for repeat registration by a registered migration agent if, at the time of making the application, the applicant is a restricted legal practitioner. > Note: A restricted legal practitioner must satisfy the continuing professional development requirements of the relevant legal professional association. Under section 275 of the Act, a restricted legal practitioner is defined as an Australian legal practitioner with a restricted practising certificate. #### 6B Prescribed professional indemnity insurance (1) For the purposes of subsection 292B(1) of the Act, professional indemnity insurance for at least $250 000: (a) held by an individual; or (b) held by an organisation of which the individual is a director, employee or member; is prescribed. (2) In this regulation: > employee includes: (a) a person engaged as a consultant or as an independent contractor; and (b) a person engaged as a volunteer. #### 6C Registration application—Australian permanent resident For paragraph 294(1)(b) of the Act, Australian permanent resident means a non‑citizen who is the holder of a permanent visa. #### 7 Publication of statement about a caution, or the cancellation or suspension of registration (1) For paragraph 305A(1)(a) of the Act, the Authority must publish the statement in writing on the Authority’s web site. (2) For subsection 332C(2) of the Act, the Authority must remove any statement published on its web site under subregulation (1): (a) if a statement about any caution is published—either: (i) not later than 12 months after the Authority is satisfied that the agent has met any imposed conditions and the Authority has removed the caution from the Register of Migration Agents; or (ii) not later than 12 months after the date of expiry of the agent’s registration if the agent fails to meet any condition set for removing the caution from the Register of Migration Agents; or (iii) not later than 12 months after the date of expiry of the agent’s registration if no conditions have been imposed; or (b) if a statement about any suspension is published—not later than 5 years after the date of publication; or (c) if a statement about any cancellation is published—not later than 10 years after the date of publication. #### 7A Requiring registered migration agents to give information or documents For subsection 305C(2) of the Act: (a) prescribed information, for each of the registered migration agent’s clients, or each client of the business or corporation which employs the agent, is: (i) the client’s contact information; and (ii) the departmental client number or file number; and (iii) the client reference number issued by the agent; and (iv) the client’s date of birth; and (b) prescribed documents are: (i) copies of the client files of the registered migration agent, or of the business or corporation which employs the agent; and (ii) copies of client ledgers, client account documents, and any other financial documents which relate to moneys paid by or owed to clients of the registered migration agent, or clients of the business or corporation which employs the agent. #### 7B Stay orders—prescribed supervisory requirements (1) For section 306AA of the Act, the supervisory requirements mentioned in subregulations (2), (2A), (3) and (4) are prescribed. (2) The registered migration agent who benefits from the stay of a decision to either cancel or suspend his or her registration (the supervised agent) must be supervised by another registered migration agent (the supervising agent). (2A) The supervising agent must have at least 5 years experience as a registered migration agent, being a period that does not include any time during which: (a) the agent’s registration was suspended; or (b) the agent was subject to a caution that was in effect. (3) The supervising agent must not: (a) be the subject of a complaint in relation to which the Authority is considering the cancellation or suspension of the supervising agent’s registration, or cautioning the supervising agent, or refusing an application for registration by the supervising agent; or (b) be subject to any disciplinary action; or (c) be employed by the business or corporation that employs the supervised agent. (4) The supervising agent must: (a) meet with or telephone any new client of the supervised agent within 28 days of the supervised agent agreeing to represent the client, and explain the supervising agent’s role; and (b) make file notes of all meetings with any new client of the supervised agent; and (c) check any new visa or review application, and the client’s file, prior to lodging by the supervised agent; and (d) check preparations for any Administrative Review Tribunal hearing involving the supervised agent, and attend the hearing with the supervised agent; and (e) work directly and regularly (at least once every 21 calendar days) with the supervised agent to ensure compliance with the Code of Conduct prescribed for the purposes of subsection 314(1) of the Act; and (f) notify the Authority in writing within 14 days after agreeing to supervise the supervised agent; and (g) notify the Authority in writing within 14 days after ceasing to supervise the supervised agent. #### 7E Publication of statement about barring former agents from registration (1) For paragraph 311C(1)(a) of the Act, the Authority must publish the statement in writing on the Authority’s web site. (2) For subsection 332D(2) of the Act, the Authority must remove a statement published on its web site under subregulation (1) not later than 10 years after the date of publication. #### 7F Requiring former registered migration agents to give information or documents For subsection 311EA(2) of the Act: (a) prescribed information, for each of the registered migration agent’s clients, or each client of the business or corporation which employs the agent, is: (i) the client’s contact information; and (ii) the client reference number issued by the Department; and (iii) the departmental client number or file number; and (iv) the client’s date of birth; and (b) prescribed documents are: (i) copies of the client files of the registered migration agent, or of the business or corporation which employs the agent; and (ii) copies of client ledgers, client account documents, and any other financial documents which relate to moneys paid by or owed to clients of the registered migration agent, or clients of the business or corporation which employs the agent. #### 7G Method of notification of giving of immigration assistance to visa applicants (1) For section 312A of the Act, the registered migration agent must notify the Department by: (a) sending a completed Form 956 to the Department; or (b) sending a letter to the Department that: (i) is dated; and (ii) is signed by the agent; and (iii) includes the name of the visa applicant; and (iv) includes the visa applicant’s departmental client number or file number (if known); and (v) includes the agent’s Migration Agent Registration Number; or (c) completing the ‘Migration Agent’s Details’ section of a visa application form. (2) The registered migration agent must notify the Department in relation to subregulation (1), either: (a) at the time of lodging the applicant’s visa application with the Department; or (b) if the visa application has already been lodged—not later than 28 days after commencing to act on behalf of the visa applicant. #### 7H Method of notification of giving of immigration assistance to review applicants (1) For section 312B of the Act, the registered migration agent must notify the Administrative Review Tribunal by: (a) sending a completed approved form to the Tribunal; or (b) sending a letter to the Tribunal that: (i) is dated; and (ii) is signed by the agent; and (iii) includes the name of the review applicant; and (iv) includes the agent’s Migration Agent Registration Number. (2) The registered migration agent must notify the Tribunal in relation to subregulation (1): (a) at the time of lodging the applicant’s review application with the Tribunal; or (b) if the review application has already been lodged—not later than 28 days after commencing to act on behalf of the review applicant. > Note: The requirement to notify the Administrative Review Tribunal applies in relation to a reviewable migration decision or a reviewable protection decision. For reviewable migration decision or reviewable protection decision, see subsection 5(1) of the Act. #### 7I Statement of services For paragraph 313(3)(c) of the Act, the period is 28 days after the decision, in relation to the immigration assistance, is made about: (a) a visa application; or (b) a cancellation review application; or (c) a nomination or sponsorship application; or (d) a request to the Minister to exercise his or her power under section 351, 391, 417 or 454 of the Act. #### 9 Complaints For paragraph 316(1)(c) of the Act, any person or body may make a complaint, including: (a) a client of the registered migration agent; (b) an official; (d) an employee of the Authority; (e) a parliamentarian; (f) a tribunal or court; (g) a community organisation; (h) the Department. > Note: The terms official and parliamentarian are defined in s 275 of the Act. #### 9A Consumer guide The Authority must arrange for the production of a consumer guide that the Authority is satisfied will adequately inform potential clients of a registered migration agent about: (a) the migration advice profession; and (b) the functions of the Authority and the legislation regulating the profession; and (c) what a client can reasonably expect from a registered migration agent; and (d) complaint procedures. #### 9B Disclosure of personal information by the Authority (1) For subsection 321A(2) of the Act, each of the following is a prescribed circumstance: (a) a registered migration agent, or an inactive migration agent, is currently under investigation for possible offences under the Act; (b) a client of a registered migration agent, or an inactive migration agent, is currently under investigation for possible offences under the Act; (c) the Minister is considering referring a registered migration agent, or an inactive migration agent, to the Authority for mandatory sanctioning; (d) the Department is considering making a complaint to the Authority about a registered migration agent, or an inactive migration agent; (e) a registered migration agent, or an inactive migration agent, has been sanctioned by the Authority; (f) the personal information is required to allow the Secretary, an authorised officer or a review authority to collect information about the conduct of registered migration agents, or inactive migration agents. (2) For subsection 321A(3) of the Act, the recipient may disclose personal information disclosed under subsection 321A(1) of the Act to a relevant professional body if: (a) the information is about the conduct of a registered migration agent or an inactive migration agent; and (b) the recipient believes that that conduct may be of concern to the relevant professional body. (3) For subregulation (2), relevant professional body means a professional body of which the agent is or was a member. #### 9C Disclosure of personal information by the Secretary (1) For subsection 332F(2) of the Act, each of the following is a prescribed circumstance: (a) a registered migration agent, or an inactive migration agent, is currently under investigation for possible offences under the Act; (b) a client of a registered migration agent, or an inactive migration agent, is currently under investigation for possible offences under the Act; (c) the Minister is considering referring a registered migration agent, or an inactive migration agent, to the Authority for mandatory sanctioning; (d) the Department is considering making a complaint to the Authority about a registered migration agent, or an inactive migration agent; (e) a registered migration agent, or an inactive migration agent, has been sanctioned by the Authority; (f) the personal information is required to allow a review authority to collect information about the conduct of registered migration agents, or inactive migration agents. (2) For subsection 332F(3) of the Act, the review authority may disclose personal information disclosed under subsection 332F(1) of the Act to a relevant professional body if: (a) the information is about the conduct of a registered migration agent or an inactive migration agent; and (b) the review authority believes that that conduct may be of concern to the relevant professional body. (3) For subregulation (2), relevant professional body means a professional body of which the agent is or was a member. #### 9D Disclosure of personal information by a review authority (1) For subsection 332G(2) of the Act, each of the following is a prescribed circumstance: (a) a registered migration agent, or an inactive migration agent, is currently under investigation for possible offences under the Act; (b) a client of a registered migration agent, or an inactive migration agent, is currently under investigation for possible offences under the Act; (c) the Minister is considering referring a registered migration agent, or an inactive migration agent, to the Authority for mandatory sanctioning; (d) the Department is considering making a complaint to the Authority about a registered migration agent, or an inactive migration agent; (e) a registered migration agent, or an inactive migration agent, has been sanctioned by the Authority; (f) the personal information is required to allow the Secretary or an authorised officer to collect information about the conduct of registered migration agents, or inactive migration agents. (2) For subsection 332G(3) of the Act, the Secretary or authorised officer may disclose personal information disclosed under subsection 332G(1) of the Act to a relevant professional body if: (a) the information is about the conduct of a registered migration agent or an inactive migration agent; and (b) the Secretary or authorised officer believes that that conduct may be of concern to the relevant professional body. (3) For subregulation (2), relevant professional body means a professional body of which the agent is or was a member. ## Part 3C—Approval of CPD providers #### 9M Application for approval as CPD provider (1) A person may apply to the Minister for approval as a CPD provider. (2) The application must be: (a) in the form approved in writing by the Minister; and (b) accompanied by the fee specified by the Minister in an instrument in writing for the purposes of this paragraph. (3) A fee specified in an instrument made under paragraph (2)(b) may be nil. #### 9N Approval of CPD providers (1) The Minister may, in writing, approve a person who has applied in accordance with regulation 9M as a CPD provider, if the applicant satisfies the Minister that the applicant meets the requirements for approval set out in subregulation 9P(1). (2) However, the Minister must not approve the applicant as a CPD provider if the Minister has any reason to doubt that the fit and proper person requirements set out in subregulation 9P(2) are met. (3) If the Minister decides not to approve the applicant as a CPD provider, the Minister must notify the applicant as soon as practicable, in writing, of the decision and the reasons for it. #### 9P Requirements to be approved as CPD provider (1) For the purposes of subregulation 9N(1), the requirements for approval are the following: (a) either: (i) the applicant has experience in providing relevant types of adult learning programs or activities, or has or intends to obtain the services of a person who has such experience; or (ii) the applicant holds a relevant qualification in training and assessment at the Certificate IV level or higher, or has or intends to obtain the services of a person who holds such a qualification; (b) the applicant has suitable policies and administrative arrangements in relation to: (i) learning and assessment; and (ii) evaluation and continuous improvement; and (iii) records management, reporting and privacy; and (iv) handling complaints; and (v) handling cancellations and refunds; and (vi) support and monitoring of distance learning participants; (c) the applicant has experience in providing, or understands and intends to provide, suitable training infrastructure, materials and resources for CPD activities; (d) the applicant is able to deliver training, in a professional level of English, which is of significant intellectual and practical content and relevant to migration law and procedure and to the professional development needs of registered migration agents, or has or intends to obtain the services of a person who is able to do so; (e) the applicant is suitably qualified, whether formally or by experience, to conduct CPD activities, or has or intends to obtain the services of a person who is suitably qualified. (2) For the purposes of subregulation 9N(2), the fit and proper person requirements are that each of the following persons is a fit and proper person and a person of good character, good reputation and integrity: (a) the applicant; (b) any person employed by, or providing services to or on behalf of, the applicant in relation to the conduct of CPD activities or activities that would be CPD activities if the applicant were approved as a CPD provider. #### 9Q Conditions of approval as CPD provider (1) A person’s approval as a CPD provider is subject to the person’s compliance with: (a) any conditions specified by the Minister in the approval; and (b) the standards specified for CPD providers in the CPD provider standards. (2) The Minister may, by legislative instrument (the CPD provider standards), specify standards to be complied with by CPD providers. > Note: Standards are specified for the purposes of paragraph (1)(b) of this regulation. #### 9R Period of approval as CPD provider (1) Unless subregulation 9S(5) applies, a person’s approval as a CPD provider takes effect: (a) on the day the Minister approves the person; or (b) if the Minister approves the person while a previous approval is in effect and before the end of the expiry day for that approval—at the end of the expiry day for the previous approval. > Note: If a person applies to be approved again while a previous approval is in effect, and the Minister approves the person after the expiry day for the previous approval, subregulation 9S(5) deals with when the new approval takes effect. (2) Unless continued by subregulation 9S(3) or cancelled under regulation 9T, a person’s approval as a CPD provider continues in effect until the end of its expiry day. (3) The expiry day for an approval is: (a) the second anniversary of the day the approval took effect; or (b) if subregulation 9S(5) applies (Minister approves the person while a previous approval is in effect and after the expiry day for that approval)—the second anniversary of the expiry day for the previous approval. > Note: Example 1: The Minister approves a person for the first time on 31 October 2018. The approval takes effect on that day and continues in effect until its expiry day, which is 31 October 2020 (the second anniversary of the day it took effect). > Note: Example 2: The expiry day for a person’s approval is 31 October 2020. Before that day, the person applies to be approved again and the Minister approves the person on 10 October 2020. The previous approval continues in effect until the end of 31 October 2020. The new approval takes effect at the end of 31 October 2020 and continues in effect until its expiry day, which is 31 October 2022 (the second anniversary of the day it took effect). #### 9S Automatic continuation of approval as CPD provider until application to be approved again is dealt with When person’s approval is automatically continued (1) Subregulation (3) applies to continue a person’s approval as a CPD provider beyond its expiry day if: (a) before the end of the expiry day, the person made an application to be approved again as a CPD provider in accordance with regulation 9M; and (b) the Minister had not decided the application by the end of the expiry day. Exception—cancellation (2) However, subregulation (3) does not apply to continue a person’s approval as a CPD provider if, before the end of the expiry day, the Minister cancelled the approval. Period of continuation of approval (3) The person’s approval as a CPD provider is taken to continue after the expiry day until: (a) the end of the day the Minister decides the application; or (b) if the Minister decides to cancel the person’s approval—the day the cancellation takes effect; or (c) the end of the period of 21 months beginning on the day after the expiry day. Approval if no decision within a certain period (4) If, before the end of the period of 21 months beginning on the day after the expiry day, the Minister has neither decided the application nor cancelled the approval, then the Minister is taken to have approved the person as a CPD provider at the end of the last day of that period. The approval is taken to be subject to any conditions specified by the Minister in the previous approval in accordance with paragraph 9Q(1)(a). When approval is in effect (5) If the Minister decides to approve, or is taken to have approved, the person as a CPD provider, the approval: (a) takes effect at the end of the day the Minister approves or is taken to have approved the person; and (b) unless continued by subregulation (3) or cancelled under regulation 9T, continues in effect until the end of its expiry day (see paragraph 9R(3)(b)). > Note: Example: The expiry day for a person’s approval is 31 October 2020. On 20 October the person applies to be approved again. The Minister has not decided the person’s application by the end of 31 October. > Note: The person’s approval continues automatically past 31 October. > Note: The Minister approves the person on 15 November. The new approval takes effect at the end of 15 November 2020 and continues in effect from that time until its expiry day on 31 October 2022 (the second anniversary of the expiry day for the previous approval—see paragraph 9R(3)(b)). #### 9T Cancellation of approval as CPD provider (1) The Minister may, by written notice given to a person, cancel the person’s approval as a CPD provider if: (a) the Minister is satisfied that the person has failed to comply with a condition referred to in paragraph 9Q(1)(a) or a standard in the CPD provider standards; or (b) the Minister is not satisfied that the person meets the requirements for approval in subregulation 9P(1), or that the person has done as the person intended in relation to any such requirement met on the basis of an intention; or (c) the Minister has reason to doubt that the fit and proper person requirements set out in subregulation 9P(2) are met. (2) The Minister must, by written notice given to a person, cancel the person’s approval as a CPD provider if the person requests the Minister in writing to do so. (3) Cancellation takes effect on the day notice of the cancellation is given to the person, or on a later day specified in the notice. #### 9U Delegation (1) The Minister may, in writing, delegate to an APS employee in the Department any or all of the Minister’s functions and powers under this Part, other than a power to make, vary or revoke a legislative instrument. (2) In performing functions and exercising powers under a delegation, the delegate must comply with any directions of the Minister. ## Part 4—Miscellaneous #### 11 Approved forms (1) The Authority may, in writing, approve forms for: (a) use in making an application for registration; or (b) any other purpose authorised or required by these Regulations. (2) Each of the following is an approved form: (a) a paper form; (b) an interactive computer program that is made available at an Internet site operated under the authority of the Authority. ## Part 5—Transitional provisions ### Division 1—Amendments made by Migration Legislation Amendment Regulation 2012 (No. 4) #### 12 Operation of amendments The amendments of these Regulations made by Schedule 5 to the Migration Legislation Amendment Regulation 2012 (No. 4) apply in relation to an application for a visa made on or after 24 November 2012. ### Division 2—Amendments made by the Migration Legislation Amendment Regulation 2013 (No. 1) #### 13 Operation of amendments The amendments of these Regulations made by Schedule 5 to the Migration Legislation Amendment Regulation 2013 (No. 1) apply in relation to an application for repeat registration made on or after 23 March 2013. ### Division 3—Amendments made by the Migration Legislation Amendment Regulation 2013 (No. 2) #### 14 Operation of amendments The amendments of these Regulations made by Schedule 2 to the Migration Legislation Amendment Regulation 2013 (No. 2) apply in relation to an application for repeat registration made on or after 1 July 2013. ### Division 4—Amendments made by the Migration Legislation Amendment (2017 Measures No. 1) Regulations 2017 #### 15 Definitions In this Division: > amending Regulations means the Migration Legislation Amendment (2017 Measures No. 1) Regulations 2017. > approved activity means an approved activity within the meaning of these Regulations as in force immediately before 1 January 2018. > approved provider means an approved provider within the meaning of these Regulations as in force immediately before 1 January 2018. #### 16 Operation of amendments of regulation 3XA The amendments of regulation 3XA of these Regulations made by Schedule 6 to the amending Regulations apply in relation to applications for repeat registration made on or after 18 April 2017. #### 17 Operation of amendments of Divisions 2.1 and 2.2 of Part 2 The amendments of Divisions 2.1 and 2.2 of Part 2 of these Regulations made by Schedule 5 to the amending Regulations apply in relation to assistance given, and representations made, on or after 18 April 2017. #### 18 Operation of amendment of clause 2.1A of Code of Conduct The amendment of clause 2.1A of Schedule 2 to these Regulations made by Schedule 5 to the amending Regulations applies in relation to accepting a person as a client on or after 18 April 2017. #### 19 Operation of clauses 8.3A and 8.3B of Code of Conduct (1) Clause 8.3A of Schedule 2 to these Regulations, as inserted by Schedule 5 to the amending Regulations, applies in relation to assistance given on or after 18 April 2017. (2) Clause 8.3B of Schedule 2 to these Regulations, as inserted by Schedule 5 to the amending Regulations, applies in relation to representations made on or after 18 April 2017. #### 20 Transition from approved activities to CPD activities (1) A person who provides an approved activity must ensure that registered migration agents who commence the activity are able to complete it before 1 January 2018. (2) In working out on or after 1 January 2018 whether an applicant has met the requirements in subregulation 6(1) as amended by Part 2 of Schedule 4 to the amending Regulations, points for an approved activity completed by the applicant before 1 January 2018, and not counted for the purposes of deciding any previous application, may be counted. (3) A person who is approved as a CPD provider must not conduct CPD activities before 1 January 2018. (4) The amendments of regulation 6 made by Part 2 of Schedule 4 to the amending Regulations apply in relation to CPD activities conducted on or after 1 January 2018. #### 21 Transition from approved providers to CPD providers To avoid doubt, a person (including a person who is or was an approved provider) is not a CPD provider for the purposes of these Regulations unless the person is approved as a CPD provider under Part 3C of these Regulations on or after 1 October 2017 and the approval is in effect. #### 22 Approval as CPD provider before 1 January 2018 Despite subregulation 9R(1), any approval of a person as a CPD provider before 1 January 2018 takes effect on 1 January 2018. ### Division 5—Amendments made by the Migration Agents Amendment (CPD Requirements) Regulations 2019 #### 23 Operation of amendments Regulation 6A of these Regulations, inserted by the Migration Agents Amendment (CPD Requirements) Regulations 2019 (the amending Regulations), applies in relation to the following applications for repeat registration: (a) an application made before the commencement of the amending Regulations, if no decision had been made in relation to the application immediately before that commencement; (b) an application made on or after the commencement of the amending Regulations. ### Division 6—Amendments made by the Migration Agents Amendment (Regulation of Migration Agents) Regulations 2020 #### 24 Definitions In this Division: > amending Regulations means the Migration Agents Amendment (Regulation of Migration Agents) Regulations 2020. #### 25 Operation of amendments relating to registration of migration agents—general The amendments of these Regulations made by Part 2 of Schedule 1 to the amending Regulations apply in relation to a registration application made on or after the commencement of that Part.