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1 Canberra ACT 0200 Australia Sydney NSW 2000 Australia Telephone: Telephone Thank you for the opportunity to contribute to a discussion on the OMARA English Language requirements for registration. Introduction This submission has been prepared in conjunction with Liana Allan, Convenor of Migration Alliance and member of the Migration Alliance Law Reform Taskforce. Australian National University Migration Law Program The Migration Law Program within the Legal Workshop of the College of Law at the Australian National University specialises in developing and providing programs to equip people with the necessary knowledge, skills and qualifications to register as Migration Agents. The Program also provides Continual Professional Development opportunities for Registered Migration Agents and professional short courses in migration law and New Zealand Immigration law. The Migration Law Program is engaged in developing research into the practical operation of migration law and administration in Australia, and regularly provides submissions and presents evidence to a Parliamentary Committee inquiries, conferences and seminars. As the largest Australian provider of the Graduate Certificate in Migration Law and Practice the ANU College of Law is well placed to contribute to debate about the profession. Migration Alliance Law Reform Task Force Migration Alliance is a membership organisation made up of Registered Migration Agents with the aims of: 1

2 Leading the Migration advice profession through the provision of expert advice to Government and consumers. Providing effective representation of both the Alliance and consumers to Government. Providing practical assistance and support to the membership. Fostering co-operation between members for the betterment of the Profession and to discharge the trust vested in the Profession to provide expert and independent advice to consumers in the National Interest. Assisting the consumer through practical support to the non-commercial sector in the provision of expert pro-bono advice. Promoting a culture of integrity. The Migration Law Reform Taskforce was established on the 9th of November 2011 in response to the increasing complexities of migration law and policy. It is staffed full time on a bro bono basis by members of the Migration Alliance. Its purpose is to review the practicality of migration legislation as it applies in the frontline and draft appropriate legislative recommendations. In support of its objective the Migration Law Reform Taskforce provides expert opinion and analysis to stakeholders and overall aims to assist in improving the process integrity of the Australian visa system. Current Projects - Migration Law Reform Taskforce: Fair Work Act Review - Terms of Reference Submission (17/02/12) (more ) Joint Ministerial Briefing and Submission on Aviation Security and Foreign Aircrew Visa Arrangements (28/12/11) Joint Ministerial Briefing and Submission on the Cyber Security Requirement of the Migration Advice Profession (28/12/11) Joint Ministerial Submission to improve protection against visa cancellation caused by unfair job dismissal (17/02/12) Joint Ministerial Submission to reduce exploitation of migrant workers with amendments to the sponsor compliance criteria (28/12/11) Parliamentary Draft Legislation to reduce offshore scams by Unregistered Persons providing offshore Immigration Assistance (28/12/11) 2

3 Parliamentary Draft Legislation to improve migrant worker fair work conditions and market pay rates within the migration zone (28/12/11) Active Engagement Of Stakeholders Issues in the Transport, Mining, Aviation, Maritime and Construction Sectors (09/02/12) Submission It is in this capacity that the ANU Migration Law Program would like to raise two issues in relation to the recent imposition of additional requirements for registration. The first is the placing of the English language requirement within the provisions of s290 of the Migration Act. All requirements for registration other than the English language requirement are outlined clearly in the relevant legislation. The new English language requirement includes a range of evidence applicants can provide to show they meet the proposed standard. It is interesting to note that the standards are not higher than those required for entry into the Graduate Certificate and include provisions that would encompass ANU students who completed their education in Australia, New Zealand, the Republic of Ireland, UK or Canada. However they do not encompass all students who meet the ANU English language requirements for entry. It appears to be the last clause of Section 290 of the Migration Act 1958 that the OMARA is relying on to implement the English language requirement. Section 290 of the Migration Act holds that an applicant cannot be registered if they are not a person of integrity or not a fit and proper person. The legislation lists factors which must be taken into account when considering if the applicant is a fit and proper person or a person of integrity. These include knowledge of migration law, criminal convictions that are not spent, criminal proceedings, disciplinary action, inquiry or investigations, bankruptcy and any other matter relevant to the applicant s fitness to give immigration assistance. If the OMARA is relying on these provisions to impose an English language standard then the presumption this rests upon is offensive as it includes English ability within an area that traditionally tests a person s fundamental character. Whilst there is no definition of fit and proper person, the test is an old one that is widely applied.. As a result there is considerable jurisprudence interpreting this provision in a variety of Acts and organisational rules. The terminology is 3

4 considered to be of ancient lineage harking back to 5 th century Rome and 13 th century English common law 1. Case law focuses on both the context of the imposition of this clause within rules and legislation and behaviour, character or conduct that may lead one to make a judgement regarding an individual affected by these clauses. The tribunal in Woods (No. 1) and Migration Agents Registration Authority [2004] AATA 457 (11 May 2004) refers to two leading cases these being: Hughes and Vale Pty Ltd and Another v State of New South Wales and Others (No 2) [1955] HCA 28; (1955) 93 CLR 127 (Hughes and Vale) And Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 94 ALR 11 ("Bond"). Both cases consider the terminology in light of character and reputation. In Bond, Toohey and Gaudron JJ, in their separate opinion acknowledge the expression takes its meaning from context and formed the view that the concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaged in those activities...the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur... in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 36 The linkage of the fit and proper person requirement within the Migration Act (and many other Acts that govern professional registration) with integrity provisions strengthens the long history of associating fit and proper with personal characteristics that are positive in nature. 1 The Hon P D Jersey AC. Chief Justice QLD, Bar Practice Course final lecture Banco Court Friday 18 February 2005, 6pm The fit and proper criterion: indefinable, but fundamental 4

5 Nevertheless these are determined by examining negative conduct, such as, criminal convictions, disciplinary action, bankruptcy etc. The Hon PD Jersey AC 2 links the term with that of excluding unacceptable conduct when he refers to a definition attempted by Sir Edward Coke in the seventeenth century, that is echoed in Hughes and Vale, which concludes that determining if a person is said to be fit to execute his office involves an assessment that the person has three qualities: honesty, knowledge and ability. There is no case law known to the author that links a professional s English language capability with a fit and proper test. However the Department of Immigration and Citizenship has linked the provision in its Annual Report The Department of Immigration Annual Report include as a Deliverable the goal that the OMARA: Consider all applications for registration appropriately to ensure that only suitable persons are registered as migration agents, and unsuitable persons are refused registration or re-registration. In discussing this goal, the report comments: When deciding whether a person should be registered for the first time, decision-makers must consider whether they have completed the Graduate Certificate in Australian Migration Law and Practice or are an Australian legal practitioner. Other considerations are English language proficiency, criminal convictions and proceedings, previous bankruptcy, employment relationships with an individual who is not a person of integrity and any other matter relevant to the applicant's fitness to give immigration assistance. Result: In , the Office of the OMARA continued to ensure that only suitable persons were approved to be registered migration agents. Decisions on applications for registration as a migration agent are made after careful consideration and in accordance with the legislative requirements in the Migration Act and the Migration Agents Regulations 1998 Agents must apply for repeat registration each year. In addition to meeting ongoing requirements relating to fitness and integrity, they are also required to complete continuing professional development. In 2014 they will be required to demonstrate, if they have not previously, that they meet the English language proficiency requirements. 2 ibid 5

6 Whilst continuing professional development is captured by s290 2) a) English Language proficiency is not. The second issue that we wish to raise is that of the imposition of an English language test for both new and ongoing registration of Migration Agents. The OMARA Language Survey Report July 2010, confirms our assertion that the English language requirements cannot be met by all students who successfully complete the Graduate Certificate in Migration Law and Practice. The Australian National University has strict entry requirements for all post graduate courses. As a result we consider that our graduates should meet both academic and English Language requirements without further testing. Our students come from a wide demographic. In 2011, 50% of students enrolled the ANU Graduate Certificate in Australian Migration Law and Practice were aged between 30 and 49 years. In total, 61% of enrolments were students 30 years of age or older. 52% were male students. The great majority were domestic students. 57% spoke English at home. Other languages spoken at home include: All Chinese languages (13%), Hindi (3%), Korean (2%), Tagalog (2%), Urdu (2%), Nepali (2%), and Vietnamese (2%). Qualifications Students studying the Graduate Certificate in Migration Law and Practice are required to hold an undergraduate degree equivalent to a three year Australian Bachelors degree. Students who do not meet the academic entry requirements may be granted entry as a Non Award student. This is based on work history, references and previous study. Non Award students are not eligible for fee help; they must complete one subject successfully before enrolling in further study. Tracking over the past four years has shown no discernable difference in outcome for Non Award and Award students. English Language The Australian National University has a formal policy for admission entitled: Policy for English Language Admission Requirements for Students.. This policy applies to all potential students and requires they meet the English language requirements prior to admission. The policy requires students to meet one of the following principles That they are a citizen of one of the countries below 6

7 Australia Canada (excluding Quebec) Fiji Ireland Kenya New Zealand Papua New Guinea Singapore Solomon Islands South Africa United Kingdom (including Northern Ireland) United States of America Samoa Zambia Whose studies were conducted entirely in English or They completed full time study in the medium of English for a minimum of two years in one of the countries listed above no more than two years prior to the date of application or They have successful performance in an acceptable English Language test within the past two years. For Law - English language test includes Academic IELTS overall score of 7 with at least a 6 in each component. TOEFL of 600 with TWE of 5.0 TOEFL of 100 with minimum 22 in all four sections. In addition to the English Tests and prior study, the ANU also accepts a number of academic qualifications as meeting the English language requirement for admission to undergraduate programs. Law has exemptions that are higher than other areas of the university. (See attached) Applicants who fail to meet minimum standard requirements may be eligible for a waiver of the English Language Requirement. This process requires us to provide the Dean of the College and ultimately the Deputy Vice Chancellor with a request that the student gain admission into the course. Examples where we have requested a waiver include applicants who have lived and studied in countries outside those listed above, where the national 7

8 language is English, and applicants who are long term permanent residents or citizens of Australia who work in areas that require a high standard of English such as academics, law clerks, immigration officers. We do not request waivers lightly and have not been in a situation whereby we have had a request refused. We are also required to track the students we have arranged a waiver for and report back on their progress. Of the students who were granted a waiver in 2011; 42% have completed their course work with distinctions, 28% deferred study and 28% have results pending. Conclusion The OMARA website refers to the new entry requirements and proposed registration requirement as arising from various reports including the 2009 Changing Together prepared for the OMARA. This Report clearly promotes a higher standard of English language capability and is misleading in its reporting of entry standards for students into the Graduate Certificate. As the largest Australian provider of the Graduate Certificate the ANU College of Law would like to note that our Program staff including our Director and Sub Dean were not consulted or engaged as stakeholders during the preparation of the 2009 Changing Together report. Furthermore the claims within the Report that there is an agreement in place between the MIA and the universities to increase the level of qualification is unfounded with regard to the ANU. The OMARA Language Survey Report July 2010 builds on the work of Changing Together. This report reveals the discriminatory aspects of imposing an English Language standard upon long term successful migration agents, which in effect will retrospectively declare they were unsuitable persons regardless of their knowledge or work as an agent, when it reveals that the majority of agents (38.6% of respondents) who would be affected by the new requirements are from a Chinese speaking background. The Report also indicates that a high proportion of those affected are middle aged RMA S who have been in practice for over 6 years 3 and that of those affected, the number who will not re register and as a result lose their livelihood will be readily replaced by new agents, presumably those from different backgrounds. 3 OOMARA Language Survey Report July pp5-10 8

9 So, for example, Bangladesh had RMAs who indicated that they would meet the requirements and not meet the requirements. So if one RMA left the industry as a result of the proposed change, there would be others to take their place. Similarly, many people with clients from Chinese-speaking countries indicated that they would be affected by the change, but even more RMAs with clients from these countries indicated that they would not be affected 4. The Report notes the majority of RMA s affected have entered the profession following completion of the Graduate Certificate; we reiterate that this should be sufficient recognition of their academic and English language ability. In addition the Report claims that a significant number of affected agents had successfully completed IELTS but not within the timeline imposed by the OMARA for registration. The imposition of subsequent IELTS presumes that a successful registered agent s English language ability will not improve over time but will actually decrease; a presumption which has no foundation. Finally, in terms of impact on client groups the Report indicates that the clients of the affected RMA s predominantly speak a language other than English and communicate directly with their agents in this language. Many of those affected by the change operate offshore, working with clients who need a translator to speak English. The reality that these agents can continue to operate offshore without registration is of further concern as it is in direct opposition with the goals of the OMARA and the wider profession which is to ensure that migration agents are registered. There is no evidence within the report that those affected by the proposed changes have not fulfilled their role as agents professionally and adequately, nor is there evidence that clients have been adversely affected through the work of these agents. There is therefore no evidence that performance at a future IELTS test will improve future outcomes for clients. The Migration Act lists a number of requirements that agents seeking reregistration must fulfil. In addition agents must have complied substantially with the Code of Conduct and the Migration Agent Regulations. These requirements include provisions to sanction agents. It is within these requirements that OMARA should focus on consideration of an agent s performance of their duties. Within here the OMARA may be able to ascertain if English language 4 Ibid p19 9

10 ability has adversely affected a client and retracted from the agent s ability to function. Those who are not performing adequately could be sanctioned. It is interesting to note that the proposed standards are to be met once by all agents after January This test along with the imposition of the provision to register annually, will impact adversely not only on registered migration agents but on their clients. Those who attempt to meet the test at first instance and fail will find they have to undergo a formal language test thereby delaying successful registration and risking ongoing work. Whilst these agents can all access an IELTS test and may all pass such a test these provisions set a dangerous precedent. Our student cohort shows that migration agents are drawn from a demographic that has either familial or indirect ties with migrant communities. Many speak English as a second language. Their success as an agent can depend on their links with migrant communities and their ability to speak a second language as well as their ability to communicate clearly and succinctly in English. Studies into the work of migration lawyers in the United States 5 have reinforced our findings regarding the background of those drawn to work in this area of law. The suggestion that people who have English as a second language and who have met other legal requirements such as successful completion of an academic qualification still do not meet a requirement traditionally and legally confined to the assessment of character would appear be discriminatory. Migration Alliance Member Concerns Members of Migration Alliance have expressed concerns that Section 290 of the Migration Act is being improperly used. The legislation lists factors which must be taken into account when considering if the applicant is a fit and proper person or a person of integrity. Members argue that the test of character and integrity has nothing to do with English language ability. Migration Alliance shares the concerns submitted by the ANU. 5 Levin, L. C. (2009), Guardians at the Gate: The Backgrounds, Career Paths, and Professional Development of Private US Immigration Lawyers. Law & Social Inquiry, 34: doi: /j x 10

11 Recommendations The OMARA define where the English language standard rests (policy or legislation) to prevent the perception that the requirement is linked to legislative requirements that relate to integrity and fit and proper person provisions under s290 (h) of the Migration Act. The OMARA removes the English language standard requirement from registration for new agents And The OMARA does not impose the English language standard as a requirement for re-registration on existing agents. Marianne Dickie Sub Dean Migration Law Program Legal Workshop Liana Allan Convenor of Migration Alliance Member of Law Reform Task Force 11