OPERATIONAL REPORTS

• There were 407 complaints received, relating to 277 registered migration agents.
• There were 527 complaints finalised, relating to 325 registered migration agents.
• As a result of 70 complaints, 12 registered migration agents were sanctioned.

The published standards for managing complaints about registered migration agents are to:

In 2012–13 the Authority focused on implementing the recommendations of an independent review of the handling of complaints. The primary focus was implementing more streamlined processes for the management of less serious professional conduct complaints.

Of the 527 complaints finalised in 2012–13, 75.8 per cent were finalised within the published standards. This comprised:

A dedicated team of officers, the Early Resolution team, has been established to manage less serious professional conduct matters. The primary focus of the management of complaints by the Early Resolution team is to achieve more timely outcomes in the interests of better consumer protection; to resolve complaints by conciliation; and to address and improve standards of professional practice in accordance with the code of conduct.

In managing a complaint, professional standards officers in the Early Resolution team will typically engage with the parties to resolve the complaint—including, if applicable, fee disputes. Decision outcomes may include fee-negotiated outcomes, no-breach outcomes, and recommendations to the agent to take remedial or corrective action. Short reasons for decision are given to the parties, with the primary aim to provide the agent with guidance to improve practices in accordance with the standards of professional conduct set out in the code of conduct.

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Table 3: Complaints received, finalised and on hand, as at 30 June 2012 and 30 June 2013

The data in Table 3 shows:

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In 2012–13 the Authority continued to strongly emphasise the finalisation of aged and more complex complaints. This resulted in a reduction of 26 per cent in the number of complaints aged 12 months and over compared to the last financial year.

Figure 6: Age of complaints on hand, as at 30 June 2013

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Approximately 84 per cent of the complaints received or reopened in 2012–13 were received directly from an individual or on behalf of an individual. This represents an increase of approximately 4 per cent compared to the previous program year.

The Authority and the Department of Immigration and Citizenship have established referral arrangements to ensure that complaints referred are supported by sufficient information to warrant investigation. The proportion of complaint referrals from the department decreased by approximately 4 per cent in 2012–13 compared to 2011–12.

The proportion of complaints referred from all other sources varied only slightly from the previous year. Such referrals constitute a relatively small proportion of the total number of complaints received.

Table 4 compares the sources of complaints received in 2011–12 and 2012–13.

Table 4: Sources of complaints, 2011–12 and 2012–13

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Issues relating to the standards of professional conduct of migration agents (Part 2 of the code of conduct) continued to be the most commonly raised in complaints but decreased from the previous program year.

The proportion of issues raised relating to fees and charges (Part 5) increased from 11.8 per cent to 22.8 per cent, an increase of over 90 per cent compared to the previous program year. This was the second most common type of issue raised in complaints.

The proportion of complaints relating to other parts of the code of conduct varied only slightly from the previous year, and amounts to approximately 10 per cent of total complaints.

Table 5 compares the types of issues raised in complaints in 2011–12 and 2012–13.

Table 5: Types of issues raised in complaints, 2011–12 and 2012–13

Table 6 gives a more detailed view of the types of complaints relating to Part 2 of the code of conduct. It shows that a significant proportion of issues raised were related to an agent’s competence.

Table 6: Complaints raised relating to Part 2 of the code of conduct, 2011–12 and 2012–13

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Table 7 shows the outcomes of complaints finalised in 2011–12 and 2012–13.

Table 7: Finalised complaints, 2011–12 and 2012–13

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Compared to 2011–12 there was an increase of 26.2 per cent in the number of complaints finalised without a sanction. These complaints include matters where conduct is found to be in breach of the code of conduct but not to warrant serious disciplinary action, as well as those that are closed after an investigation finds that the registered migration agent has not breached the code of conduct.

Informal decision outcomes, where a breach of the code of conduct was found but was not serious enough to warrant disciplinary action, may involve:

In 2012–13, 289 complaints were finalised without a sanction. Of these:

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In 2012–13, 106 complaints were closed as a result of being discontinued or dismissed. Of these, 35 were discontinued because:

• the complainant failed to provide an authority to advise the registered migration agent of the complaint
• the migration agent’s registration was suspended, cancelled or barred before the complaint was investigated
• the Authority was unable to investigate the complaint pending a departmental investigation of possible criminal offences under the Migration Act
• the complaint was withdrawn.

The remaining 71 complaints were dismissed because:

• the Authority had no jurisdiction to investigate the complaint (for example, complaints about individuals overseas who were not registered to give immigration assistance)
• there was insufficient evidence to investigate the complaint.

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Complaints relating to immigration assistance by an individual in Australia not registered as a migration agent are within the jurisdiction of the Department of Immigration and Citizenship and are therefore referred to the department for investigation.

In 2012–13, 27 complaints concerning allegations of immigration assistance by individuals not registered as migration agents were referred, which is more than in the previous program year (21 complaints).

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The Authority receives complaints concerning fee disputes. These complaints may also raise conduct issues. Professional standards officers will evaluate such complaints and determine how best to handle them.

While the Authority does not have the power to formally assess costs or to make a costs order, professional standards officers will try to resolve fee disputes by helping the parties reach an agreed outcome.

In 2012–13 the Authority successfully negotiated resolution of a fee dispute in 60 complaint matters, recovering a total of
$136 822.50 on behalf of consumers. This represents a 6.4 per cent increase from the total amount recovered in the previous program year. Of these 60 complaints, a full refund was negotiated in 22 complaints.

Matters that cannot be conciliated are referred to the relevant state tribunal. In addition, in suitable matters the Authority can appoint an independent mediator. No matters were referred to an independent mediator in 2012–13.

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In accordance with its jurisdiction, the Authority investigates complaints concerning registered migration agents who are also Australian legal practitioners if the complaint relates to the provision of immigration assistance.

Complaints concerning legal work provided by these registered migration agents are referred to the relevant legal regulatory body. The provision of immigration legal assistance is within the jurisdiction of the legal regulators.

In 2012–13 the Authority received 93 complaints concerning 68 registered migration agents holding a legal practising certificate. This represents 22.9 per cent (93 of 407) of all complaints received and 24.5 per cent of all registered migration agents who were the subject of complaints (68 of 277).

Of the 93 complaints:

The Authority referred four complaints to the legal regulators in New South Wales and Victoria, as the complaints related to the provision of immigration legal assistance by registered lawyer agents.

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The Authority takes strong disciplinary action against registered migration agents where this is warranted in the interests of consumer protection.

Depending on the individual case circumstances, and taking into account any aggravating and/or mitigating circumstances, the Authority may:

The Authority may bar a former agent from being a registered migration agent for up to five years in relation to a complaint received within 12 months after the agent ceased to be registered.

In 2012–13 the Authority sanctioned 12 registered migration agents (involving a total of 70 complaints) for significant and serious breaches of the code of conduct, including the registered migration agent not being a fit and proper person to be registered or otherwise not a person of integrity. By comparison, 19 registered migration agents were sanctioned in 2011–12.

None of the 12 sanction decisions involved a registered migration agent who held a legal practising certificate.

Table 8: Complaints resulting in a sanction outcome, 2011–12 and 2012–13

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During 2012–13 there were four new appeals to the AAT arising from disciplinary decisions made by the Authority in that year. Six appeals were carried over from the previous year. Five of those are now finalised.

Of the five appeals finalised by the AAT in 2012–13:

• one was withdrawn by the review applicant on 22 November 2012
• two resulted in the AAT affirming the Authority’s decision, on 24 December 2012 and on 19 March 2013
• one (against a barring decision) was dismissed after the former registered migration agent failed to appear at the AAT hearing. The AAT refused a subsequent application to reinstate the appeal
• one (against a caution) resulted in the AAT setting aside the Authority’s decision, on 15 April 2013.

As at 30 June 2013, five review applications remain pending.

Table 9: Status of disciplinary decisions before the AAT

Decision by the Authority	Date review application lodged by review applicant	Current status
Suspension (3 years)	3 May 2012	Pending
Cancellation	5 September 2012	Pending
Suspension (2 years)	7 March 2013	Pending
Cancellation	12 March 2013	Pending
Suspension (1 year)*	21 June 2013	Pending

* On 27 June 2013 the review applicant was granted a stay with conditions, pending the outcome of the review.

There were two court appeals: one to the Federal Magistrates Court (now the Federal Circuit Court (FCC)) and the other to the Federal Court of Australia. One of these matters arose from a matter in the AAT carried over from 2011–12. The two court matters were finalised: one was dismissed on 8 May 2013 and in the other the applicant filed a notice of discontinuance.

There was one application for review arising from a decision by the Authority not to re-open a finalised complaint in the absence of new evidence. The AAT dismissed the application for review on jurisdictional grounds.

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In 2012–13 the Authority continued its engagement with Commonwealth and state agencies and other key stakeholders.

Legal services commissions

In accordance with a memorandum of understanding with legal regulators in New South Wales, Victoria, Queensland and Western Australia, the Authority continues to work cooperatively with the legal regulators in handling complaints about registered migration agents who are also Australian legal practitioners.

State consumer tribunals

The Authority continued to refer complaints concerning fee disputes that cannot be conciliated to the relevant tribunal in the state where the consumer resides. Officials from the Authority regularly attend stakeholder meetings with the Consumer Tenancy Traders Tribunal in Sydney in the interests of improving services to consumers seeking to resolve fee disputes.

Migration Review Tribunal and Refugee Review Tribunal

The Authority meets quarterly with officers of the Migration Review Tribunal and the Refugee Review Tribunal. A key focus of the meetings is the management of complaints referred by the tribunals to improve complaint handling in the interests of consumer protection.

Insurance Council of Australia

The Authority engaged cooperatively with the Insurance Council of Australia in relation to professional indemnity insurance matters. All registered migration agents are required to obtain and hold a professional indemnity insurance policy for the period of their registration.

Tax Practitioners Board

The Authority had ongoing dialogue with the Tax Practitioners Board, which has regulatory responsibilities for tax practitioners and business activity statement agents in Australia. Information on respective functions and practices and systems for managing complaints is shared in the interests of improved regulatory and consumer outcomes.

Data matching

In 2012–13 the Authority provided an electronic copy of its register to the Australian Taxation Office. This information included ABNs.