OPERATIONAL REPORTS

• The Authority received 433 complaints.
• The Authority finalised 398 complaints.
• As a result of 11 complaints, six registered migration agents were sanctioned.

The published standards for managing complaints about registered migration agents require the Authority to:

In 2013–14 the Authority continued to focus on streamlining processes for the management of less serious professional conduct complaints by using informal resolution processes.

Of the 398 complaints finalised in 2013–14, 90.2 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 4: Complaints received, finalised and on hand, as at 30 June 2013 and 30 June 2014

* Please note that, due to data migration issues, there are minor discrepancies in complaints activity figures for 2013–14.

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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 91.4 per cent of the complaints received or re-opened in 2013–14 were received directly from individuals or on behalf of individuals. This represents an increase of approximately 6.8 per cent compared with the previous programme year. The primary reason for this increase is that the number of referrals from the Department of Immigration and Border Protection has fallen as a result of an internal restructure of responsibilities within the department.

As part of the restructure, the department has re-established referral processes through its National Allegation Assessment Team. In the next financial year the department will continue to refer to the Authority any allegations that require assessment and investigation.

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

Table 5 compares the sources of complaints received in 2012–13 and 2013–14.

Table 5: Sources of complaints, 2012–13 and 2013–14

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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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Figure 6 shows the outcomes of complaints finalised in 2013–14.

Figure 6: Outcomes of finalised complaints, 2013–14

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Complaints that are resolved and finalised without sanction include:

These complaints are managed with a focus on achieving more timely outcomes in the interests of better consumer protection, resolving complaints by conciliation where possible, and addressing and improving standards of professional practice.

Consistent with the government’s deregulation agenda, this informal process places less burden on registered migration agents by relying less on statutory declarations (unless required by the circumstances of the complaint) and making targeted requests for information from agents.

In 2013–14, 387 complaints were finalised without a sanction. Of these, 86 were finalised with a finding that a breach of the code of conduct had occurred and 170 were finalised with a finding that no breach had occurred. In these cases outcomes may involve:

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A consumer made a complaint to the Authority about the conduct of a registered migration agent who was retained to assist the consumer with a Higher Education Sector (subclass 573) visa application. The consumer was the secondary applicant for the visa; his spouse was the primary visa applicant.

The main allegation made in the complaint was that the registered migration agent failed to include the consumer as a secondary visa applicant on the visa application form. As a consequence, the consumer became unlawful after his existing student visa expired.

In resolving the dispute, the professional standards officer sent the complaint to the registered migration agent and asked for his response. In his response, the agent admitted that he had mistakenly omitted to include the consumer as a secondary visa applicant on the visa application form. The agent admitted that he had selected ‘No’ rather than ‘Yes’ on the online form in response to a question about whether the consumer was included in the visa application, and that this was an oversight.

The professional standards officer identified that the agent had failed to meet the code of conduct standards by failing to act for his client competently, diligently and fairly when the details of the consumer were omitted from the visa application.

The complaint was resolved without a disciplinary decision, as the registered migration agent acknowledged deficiencies in his practice had caused the mistake and cooperated with the Authority to amend his business practices to prevent a re-occurrence. The agent has implemented a process whereby, before each visa application is lodged, his clients verify who is included in the visa pplication and are shown the online visa application form that is to be submitted. The agent also paid the consumer’s professional and visa application fees for a new visa application as a secondary visa applicant. The consumer was subsequently granted a subclass 573 visa.

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In 2013–14, 113 complaints were closed as a result of being discontinued or dismissed. Complaints may be discontinued or dismissed for a variety of reasons, including where:

• 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 1958
• the complaint was withdrawn.
• the Authority had no jurisdiction to investigate the complaint (for example, where the complaint is about an overseas migration agent who is not registered)
• there was insufficient evidence to investigate the complaint.

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Complaints about immigration assistance by an individual not registered as a migration agent are within the jurisdiction of the Department of Immigration and Border Protection and are referred to the department for investigation.

In 2013–14, 18 complaints were referred to the department or other agencies with authority to investigate the conduct. Complaints referred in this manner included allegations of immigration assistance by individuals not registered as migration agents.

Where the primary issue in the complaint is a fee dispute, professional standards officers try to resolve the complaint by assisting the parties to reach a conciliated outcome. However, if the matter cannot be resolved, the officer may refer the complainant to a state or territory consumer tribunal or court that is empowered to make a refund order under Australian consumer law.

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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:

Where a complaint is received within 12 months of an agent ceasing to be registered, the Authority may bar the former agent from being a registered migration agent for up to five years.

In 2013–14 the Authority sanctioned six registered migration agents (involving a total of 11 complaints) on grounds of significant and serious breaches of the code of conduct or not being a fit and proper person to be registered or otherwise not a person of integrity.

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

Table 6: Complaints resulting in a sanction outcome, 2013–14

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During 2013–14 there was one new appeal to the Administrative Appeals Tribunal arising from a disciplinary decision made by the Authority in that year. Five appeals were carried over from the previous year. All appeals were finalised by the end of the year.

Of the six appeals before the Administrative Appeals Tribunal in 2013–14, the tribunal:

The Authority’s successful defence of its decisions in the Administrative Appeals Tribunal demonstrates the robustness of those decisions. For example, on 4 April 2014 the Administrative Appeals Tribunal affirmed the decision of the Authority to cancel Ms Weiming Qian’s registration following a number of complaints about protection visas. The Authority found that Ms Qian had failed to competently and diligently assist her clients and act on their instructions; manufactured or encouraged the manufacture of claims for protection visas; failed to attend with her clients at the Refugee Review Tribunal and the former Federal Magistrates Court for appointed hearings; and prepared applications for judicial review when she was not qualified to do so.

In 2013–14 there was one appeal to the Federal Court of Australia arising from a decision of the Administrative Appeals Tribunal. In that matter an agent sought leave for an extension of time to appeal a decision of the tribunal. The Federal Court granted leave and accepted the notice of the appeal but later dismissed the appeal.

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During 2013–14, one application was made to the Federal Circuit Court by an agent who challenged the Authority’s power under s. 308 of the Migration Act to request information from an agent about a complaint. This application is pending.

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In 2013–14 the Authority continued its engagement with Australian Government and state agencies and other key stakeholders.

Legal services commissions

In 2013–14 the Authority continued to work cooperatively with the state and territory legal regulators in handling complaints about registered migration agents who are also Australian legal practitioners. Additionally the Authority has entered into memoranda of understanding with legal regulators in New South Wales, Victoria, Queensland and Western Australia.

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. To improve services to consumers seeking to resolve fee disputes, Authority officials regularly attend stakeholder meetings with the New South Wales Civil and Administrative Tribunal (formerly the Consumer Tenancy Traders Tribunal) in Sydney.

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 on how complaints referred by the tribunals can be better managed to improve consumer protection.

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. The Authority and the board share information on their respective functions, practices and systems for managing complaints to improve regulatory and consumer outcomes.

Australian Competition and Consumer Commission

In 2013–14 the Authority engaged in dialogue with the Australian Competition and Consumer Commission about whether the commission can investigate offences within its jurisdiction that arise from complaints received by the Authority.