Migration agents, like other professionals, operate within an ethical code, otherwise known as rules of professional conduct.
The Code of Conduct for registered migration agents is a means of enforcing an ethical standard on the profession to prevent poor or misleading advice being given to people who
may be vulnerable for a variety of reasons, and it has the force of law.
There are several benefits:
– The Code clearly identifies the professional standards that clients should expect when they visit a registered migration agent.
– The Code identifies how a client can make a complaint to the MARA if the standards they encounter are outside the Code of Conduct.
– The Code acts as a reminder to clients and agents that a professional task is being performed.
The role of migration agents within the Australian legal system is a highly responsible one. There is no difference between the ethical obligations of a lawyer and a migration agent.
Migration agents act as a conduit between clients and the legal system. It is important then for agents to be aware of their individual values, for them to continually question and
readdress how they are doing their work and how they feel about their work and values in the light of each new challenge.
A migration agent can use his/her knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
– preparing, or helping to prepare, the visa application or cancellation review application;
– advising the visa applicant or cancellation review applicant about the visa application or cancellation review application;
– preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application;
– representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application;
– advising a person about their options to regularise their status while remaining in Australia;
– managing an application for merits or judicial review on behalf of their client;
– advising a person about how to be released from detention;
– arranging for a person’s voluntary departure from Australia;
– advising a person of their chances of being able to return to Australia.
We give free advice about most permanent and temporary visas including bridging visas and visitor visas; family, refugee and humanitarian visas; resident return visas; withdrawal
of sponsorship or assurance of support, or student visas; and Australian citizenship. We also give advice on detention, removal, cancellation procedures and exclusion periods.
Once you have decided that you are comfortable with our assessment, we will provide you with an Agreement for Services and Fees which contains complete breakdown of all
service fees from beginning to end with no hidden fees! We also offer flexible payment plans and you don’t pay anything more.
A formal Agreement for Services and Fees provides certainty to both us and our clients. This agreement will document what services our client will receive, how we will provide
those services to our client, how long it will take for us and other stakeholders (approximately) to provide those services and record what our client will pay for those services.
Fees and Charges
– Reasonable fees will be charged for services. There are no fixed fees. It will depend on the circumstances of the case.
– A statement of fees and charges will be provided to the client before the services commence.
– Work will not be commenced until the client has indicated acceptance of the scale of fees.
– We will not over service, over charge, engage others or incur additional expense without the client’s consent.
Merits Review Of Migration Law Decisions
Where the Minister for Immigration or one of his or her delegates makes a decision that is unfavourable to a visa applicant or visa holder, in many cases the applicant or their
sponsor (or in some cases another interested party) can seek a review of that decision by a merits review Tribunal.
Merits review has been historically conducted by the Migration Review Tribunal (‘MRT’), the Refugee Review Tribunal (‘RRT’) and the Administrative Appeals Tribunal (‘AAT’).
From 1 July 2015 the MRT and RRT were amalgamated into a separate division with the AAT. As such there are now two Divisions with the AAT which are relevant to merits review
of migration related decisions:
1- Migration & Refugee Division.
2- General Division.
A merits review body makes an entirely new decision, also known as a de novo decision, and, unlike judicial review, is not restricted to looking for legal errors in the original
Merits review is a genuine ‘second chance’ for the person aggrieved by a migration decision to present their case from start to finish.
The importance of this process cannot be underestimated, since judicial review is limited to identifying legal errors in the Minister’s or delegate’s decision. It is rarely possible in
judicial review to present new evidence. There is no ‘second chance’ to rectify the deficiencies in the original application and present the case with all the required evidence.
The result of merits review is that the original decision may be:
3- remitted for further consideration subject to certain directions made by the Tribunal; or
4- set aside and substituted with a new decision.
In cases where the applicant fails to appear at hearings, the Tribunal may exercise a power to either dismiss or reinstate the application.
Affirmation means that the Tribunal agrees with the original decision.
Variation occurs most frequently in applications involving monetary bonds, where the delegate may have asked for a certain amount and the Tribunal decides on a different (usually
Where the original decision has been to refuse a visa, a successful review by the Tribunal will result in the Tribunal setting aside the DIBP decision and then remitting the matter
being sent back to DIBP for re-consideration according to law; or finalisation of matters such as health and character checks (which would not usually have been decided when the
application was refused), with a direction binding on the Minister that the applicant satisfies certain criteria for the grant of the visa.
Where the original decision was to cancel a visa, if the Tribunal decides that the visa should not have been cancelled it sets the original decision aside.
Objectives Of Merits Review
The principal objective of merits review is to ensure that those administrative decisions in relation to which review is provided are correct and preferable:
– correct – in the sense that they are made according to law; and
– preferable – in the sense that, if there is a range of decisions that are correct in law, the decision settled upon is the best that could have been made on the basis of the relevant
This objective is directed to ensuring fair treatment of all persons affected by a decision.
Merits review also has a broader, long-term objective of improving the quality and consistency of the decisions of primary decision-makers. Further, merits review aims at ensuring
that openness and accountability of decisions made by government are enhanced.
A person seeking merits review is known as the ‘Review Applicant’, regardless of whether the decision under review concerns a visa refusal or a visa cancellation. The review
applicant is not always the visa applicant – for example, if an offshore partner visa is refused, the review applicant will be the Australian sponsor, not the visa applicant.
The process of seeking merits review is known as an Application for Review rather than an appeal. The term appeal is used in relation to review before a Court.
It is important to remember that not all decisions made under the Act and Regulations are merits reviewable. A migration decision will only be merits reviewable if the Act provides
that it can be merits reviewed.
Ministerial Discretion To Intervene
The Minister has extensive discretionary powers, many of which are non-delegable – that is, the power can only be exercised personally by the Minister. Usually, the only check on
this power is Parliamentary scrutiny through provisions of the Act that require the Minister to table in both Houses of Parliament a statement about the discretion exercised.
The Minister has powers to make a personal decision refusing or cancelling a visa, and also to substitute his or her own decision for that of a delegate or of the AAT. In addition, the
Minister has powers to make a personal decision revoking a decision to cancel a visa and to set aside a revocation made by a delegate of the Minister or the AAT. The Minister too
has a personal discretionary power to grant a visa to a person in immigration detention – and thus, the power to release from detention. The Minister has a personal power to permit
a non-citizen to make a second Protection Visa application after the first has been refused (and the applicant would normally be prevented from making a second Protection Visa
application by s 48A of the Act).
As well as these personal powers the Minister has discretionary intervention powers to substitute, for a decision made by the Migration & Refugee Division of the Administrative
Appeals Tribunal, a decision that is more favourable to the visa applicant(s) – and thus, the power to grant a visa. Only the Minister, acting personally, may exercise these
discretionary powers. These discretionary powers are non-compellable, non-reviewable, and can only be exercised by the Minister personally.
Requests For Ministerial Intervention
The sole legislative criterion for Ministerial Intervention is the ‘public interest’. The courts have accepted that this is a discretionary value judgment. Public interest has been
interpreted broadly to include humanitarian and compassionate circumstances.
There is no formal application process, no obligation on the Minister to consider a case, and there are no published processing times. A request can take any format from a one-page
letter to a complete submission. However all requests must be accompanied by appropriate supporting documentation unless the person can provide compelling reasons for their
inability to do so.
Since July 2016 there has been a significant policy change in the Minister’s office, known as the Ministerial Interventions Unit (’MIU’). Up until that time it was common for a ’bare
bones’ Ministerial request to be commenced with the MIU to secure a new Bridging E visa for the applicant with the balance of the supporting documentation provided at a later
date. Since July 2016 a harsher attitude has been demonstrated by the MIU where the request will be considered on the basis of the material first filed and, if that material is
incomplete or weak, a quick refusal to even refer the matter to the Minster is made.
Requests can be lodged at the Minister’s office in Parliament House in Canberra. This can be done by fax if necessary. Requests can also be sent to the MIU’s within DIBP in the
different state and regional offices.
Administration of decision-making is handled by the MIU which ‘vets’ the requests. Public servants in the MIU decide whether or not requests meet the Minister’s guidelines to
forward to the Minister. If a request meets the guidelines, the MIU prepares a submission for the Minister outlining reasons why the request comes within these policy instructions.
If the MIU decides that the request does not fall within the guidelines then the Ministerial request will not be referred to the Minster and instead the applicant is advised that the
refusal has been finalised on that basis.
There is no limit to the number of times a person can make a request to the Minister under these provisions. However there are a number of ’issues’ connected with further requests
for Ministerial intervention:
1- The first time they request Ministerial Intervention, and only the first time, they will be eligible for a Bridging E visa, and may continue to have permission to work if their last visa
did not have a work limitation, providing they did not become an unlawful non-citizen between the time of the tribunal decision and the request to the Minister. The process of
seeking Ministerial Intervention is lengthy and applicants can be left without income for a long period of time if they have a work limitation on their BVE.
2- If the person is making a repeated request, the guidelines state that it will only be considered if it includes significant new grounds or information than any previous requests.
The Minister does not have to give reasons for a decision not to consider the exercise of a non-compellable power, or a decision to exercise it but not give the applicant a visa.