Diaspora Legal
Equity, Prosperity and Dispute Resolution Across Borders
Migration Agent Compliance
Feb 11, 2015
S286 of the Migration Act (Cth) provides that only individuals may be registered as migration agents, and no person may either provide immigration assistance or receive a fee for providing immigration assistance, (Migration Act ss280, 281) unless registered or unless it is immigration legal assistance provided by a lawyer.
An authority on point is BDS Recruit Pty Ltd v Parris and Shah Pty Ltd [2008] NSW Supreme Court 614.
In that case Mr Kazacos, a registered migration agent and the sole officeholder of the respondent company, acknowledged that a company cannot be registered as a migration agent but gave evidence (in reality submissions) that a company can offer immigration services – “just kind of give advice and assistance that it can charge on behalf of – offer to give advice and assistance as long as the other person is a migration agent”.
The New South Wales Supreme Court was of a different view and held “P & S is a corporation and therefore is not permitted to be registered as a migrant agent (ss 286 & 287 of Migration Act). Accordingly P & S was not permitted to give immigration assistance (s 280). Under s 281(1) it was prohibited from asking for or receiving any fee or other reward for giving immigration assistance. As previously stated P& S was giving immigration assistance.”
The company had to repay the fees which it had charged the client for immigration assistance and pay costs to boot.
Strangely, the administration of the law by regulators and professional bodies doesn't appear to have either had sufficient familiarity with the legislation or to have recognized the import of the decision, and Mr Kasakos appears to be right in fact when he told the Court, “that’s how all the companies are operating.”
If you are a Registered Migration Agent, or a law firm which provides Migration related services in Australia, this firm is well placed to give legal advice on compliant business structures and advise on mitigation of professional and financial risk from past activities.
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