‘Common language’ and proficiency tests: a critical examination of registration requirements for Australian registered migration agents

ABSTRACT

Registered Migration Agents (RMAs), the practitioners who assist with Australian visa applications and appeals, play a crucial role in navigating these complex legal procedures. RMAs’ registration requirements, including those relating to English language proficiency (ELP), have thus garnered much attention, leading to government-commissioned reviews and inquiries, and amendments to regulations. The most recent changes have attracted scrutiny by the Australian Parliamentary Joint Committee on Human Rights, due to the unequal burden to prove ELP placed on different applicants based on their backgrounds. However, these new requirements ultimately came into force without the government satisfying the Committee that they were human rights-compliant. This article examines the most recent ELP rules for RMAs and the Immigration Minister’s justifications for these. Drawing on sociolinguistic scholarship, it finds that rules requiring general ELP tests, and categorically exempting certain applicants from testing, rely on problematic assumptions about the nature of language, and are therefore unnecessarily discriminatory. Given the government aims to ensure specific communicative competencies within the migration advice setting, the analysis concludes that these specific competencies should be the focus of any required assessment.

Acknowledgements

This research was conducted and prepared as part of a UTS Chancellor’s Postdoctoral Research Fellowship. I thank Dr Alyssa Severin for her research assistance, and Dr Alexandra Grey for her extensive feedback and support through the drafting and revision process. Thanks to the anonymous reviewer for their helpful suggestions. I’m grateful to my Language on the Move colleagues for their feedback and support in the preparation process, especially detailed advice from Agnes Bodis. Thanks also to Dr Jacqueline Mowbray for her support and encouragement. Draft versions of this paper were presented and discussed at the 2020 Australia Linguistic Society’s annual conference, and 2020 Law and Society Association of Australia and New Zealand’s online conference. Thanks to participants for their reflections and questions.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 A draft of this article formed the basis of a submission (dated 24 July 2020) to the Department of Home Affairs review, ‘Creating a world class migration advice industry’, https://www.homeaffairs.gov.au/reports-and-publications/submissions-and-discussion-papers/migration-advice-industry.

2 Smith-Khan (2020, 2017, 2021).

3 For a critical overview of the Act, see Williams and Reynolds (2015).

4 Eades (2012), p 474. See also this issue: Grey and Smith-Khan (under review) and Cho (under review).

5 Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth).

6 Admission into the Graduate Diploma requires students to have completed an undergraduate degree in any field.

7 Until 2021, the College of Law conducted this exam. From 2021, there will be a new provider. https://www.collaw.edu.au/news/2020/08/13/announcement-regarding-migration-agents-capstone.

8 E.g. Kendall (2014); Department of Immigration and Citizenship (2008); Joint Standing Committee on Migration (2018).

9 See Smith-Khan (forthcoming) for a critical examination of a recent inquiry.

10 Migration Act 1958 (Cth) s 294(1), s 290.

11 2010-1: 23% relied on tests, versus 20% exempt; 2011-12: 20% versus 16%; 2012-3: 22.5% versus 20.4%; 2013-4: 26.2% versus 19.7%. The remaining fractions held a legal practicing certificate or were registered in New Zealand, so had already demonstrated ELP. See Annual Reports for those years, via https://www.mara.gov.au/about-us/who-we-are-and-what-we-do/annual-report/.

12 Data from qualitative interviews in my ongoing research project. At the end of 2019, 39% of RMAs were sole traders. https://www.mara.gov.au/media/682329/MAAR_Jul_Dec_2019_Web.pdf

13 See, e.g. Creese and Wiebe (2012), exploring the (gendered) de-skilling of English-speaking African migrants in Canada; and Butorac (2014) exploring the diverse barriers at the intersections of language competence and race for migrant women to Australia.

14 Not meeting ELP requirements was cited in 2011–12 for 2/5 refusals, 9/11 withdrawals, 2012-13: 5/8 refusals, 5/11 withdrawals, 2013-14: 8/9 refusals, 13/19 withdrawals. See statistics in OMARA annual reports.

15 McNamara (2011); and see Smith-Khan (2015), examining a de-classified 1955 government memo that describes applying the test to exclude an applicant who was not white enough.

16 E.g. case studies and critical discussions in Frost (2017); Hoang and Hamid (2017); Berg (2011).

17 Piller and McNamara (2007).

18 Saraceni (2020), p 635.

19 Pennycook (2007); Makoni and Pennycook (2007).

20 Holliday (2008); Rubdy and Saraceni (2006b).

21 See Leung (2019).

22 McNamara (2012) Frost (2017); Hoang and Hamid (2017).

23 Shohamy (2009), p 187.

24 Smith-Khan (2019, 2021).

25 Piller (2016), p 14.

26 Rosa and Flores (2017), p 641. See also García and Otheguy (2017).

27 See, e.g. van Dijk (2008).

28 See webpage archived at https://web.archive.org/web/20010606153153/http://www.themara.com.au/mara/agents/initial_registration.html on 27 April 2001. Full details were available by requesting a Registration Pack, and are not publicly available.

29 See Frost (2017), whose examination of the evolving ELP requirements for skilled migration over time demonstrates a similar pattern to those for RMAs.

30 Archived versions of information sheets and application forms are unavailable in the period between 2nd September 2007 and early 2010.

31 MARA Information sheet 0106, M01 – 12/2006v1. The list of countries appears in Appendix 1, and proof options within the application form itself.

32 Prescribed courses and exams for applicants for registration as a Migration Agent (Regulation 5(1)(a)) – IMMI 06/056.

33 MARA Application form, Information sheet M01 – 01/2010v2. However, this type of discretion results in diverse interpretations, relying on officers using their own beliefs about language: see Piller (2001).

34 Australian Survey Research Group (2010).

35 OMARA Operational Report 2013-4.

36 Migration Legislation Amendment Regulation 2012 (No. 3).

37 Prescribed courses and exams for applicants for registration as a Migration Agent (Regulation 5) – IMMI 12/035. Replaced shortly after (to address wording issues) by Prescribed courses and exams for applicants for registration as a Migration Agent (Regulation 5) – IMMI 12/097.

38 IMMI 12/035 para 4.

39 IMMI 12/035 para 6.

40 Explanatory statement – IMMI 18/003 para 7(b).

41 Migration (IMMI 18/003: Specified courses and exams for registration as a migration agent) Instrument 2018 para 6.

42 IMMI 18/003 para 7(1).

43 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) arts 6, 2.

44 Explanatory statement – Migration Legislation Amendment Regulation 2012 (No. 3); also, Explanatory statement – IMMI 12/035 paras 19–20.

45 Explanatory statement – IMMI 18/003, Attachment A.

46 Parliamentary Joint Committee on Human Rights, Parliament of Australia (2018c), section ‘Requirement for certain persons to complete additional English language exams to register as a migration agent’, from p 65 (‘PJCHR Report 3’).

47 PJCHR Report 3 para 1.231.

48 PJCHR Report 3 para 1.235.

49 Parliamentary Joint Committee on Human Rights, Parliament of Australia (2018b) (‘PJCHR Report 4’), Appendix 3; Parliamentary Joint Committee on Human Rights, Parliament of Australia (2018a) (‘PJCHR Report 5’), Appendix 3.

50 Piller (2016), ch 3.

51 Bodis (2020, 2021).

52 PJCHR Report 3, para 1.234.

53 Piller (2016), p 45.

54 Grey and Smith-Khan (2020).

55 PJCHR Report 3, para 1.232.

56 See discussion of this term in NSW law in Grey and Severin (in preparation), this issue.

57 PJCHR Report 5, Appendix 3.

58 Holliday (2008); Rubdy and Saraceni (2006a).

59 Clyne (2004).

60 Clyne (2004, 2005).

61 Jenkins (2006).

62 E.g. Clyne (2005).

63 See e.g. Makoni and Pennycook (2007); Pennycook (2007); Saraceni et al. (2020).

64 Piller (2016).

65 See Leung (2019).

66 PJCHR Report 5, para 2.273.

67 Galloway and Rose (2015), p 72.

68 There is some cross-over of categories. For example, Australia and the US have been involved in various colonial and/or ‘administrative control’ roles in various states, and Ireland has significant British colonial history.

69 See Appendix 1. It is worth noting that in some countries, e.g. some Caribbean states, the UK still has some post-independence legal control, in the form of a Constitutional Monarchy government and/or the Privy Council remaining the final court of appeal.

70 Makoni and Pennycook (2007); Pennycook (2007).

71 Piller (2017), p 102.

72 Galloway and Rose (2015), ch 4.

73 This idea is foundational to sociolinguistics. See Labov (1972); Gumperz (2009).

74 Piller (2016) p 62. For a description of overt and covert language policy, see Shohamy (2006).

75 Racial Discrimination Act 1975 (Cth) ss 9-10.

76 See also this issue, Grey and Smith-Khan (under review), and Grey and Straus (under review).

77 Hoang and Hamid (2017). The IELTS test currently costs $355.

78 Frost (2017).

79 See literature review in Frost (2017).

80 Department of Immigration and Border Protection (2016).

81 Pilcher and Richards (2017), p 14.

82 Macqueen, Pill, and Knoch (2016). Macqueen et al. and other papers in the same special issue engage critically with occupation-specific language testing, and the conceptual boundaries between communication skills and language proficiency.

83 See Chang (2011). Of course conceptualisations of what is general or neutral are ideologically, culturally and socially informed themselves.

84 See, e.g. Hoang and Hamid (2017) and Frost (2017).

85 I thank Agnes Bodis for sharing her emerging research with me. In her ongoing study, she notes inconsistent score requirements for international student admission in different universities, and explores, inter alia, ideologies related to numerical scores.

86 Hoang and Hamid (2017).

87 IMMI 18/003 para 9(1)(d)-(e).

88 Bardovi-Harlig and Stringer (2010).

89 As of mid-2020, the overall cost for one attempt of both components of the Capstone is $2750: OMARA (Date unknown-a), Initial RMA registration is $1760 professional indemnity insurance is approximately $400, and required National Police Check is a minimum of $42: OMARA (Date unknown-b). Each IELTS attempt costs an additional $355. Annual salaries for RMAs for positions advertised on indeed.com.au range from $30,000 to $60,000.

90 E.g. ‘The new policy has been administered fairly and flexibly, and where necessary applicants have been given additional opportunities to provide evidence of their English language proficiency.’ OMARA Operational Report 2009–2010. The policy that year allowed ELP to be considered on a case-by-case basis. See ‘ELP Requirements for RMAs’ section above.

91 Explanatory statement – Migration Legislation Amendment Regulation 2012 (No. 3).

92 Macqueen et al. (2016).

93 See Medical Board of Australia (2015).

94 Law Admissions Consultative Committee (2015), 6.3 (b).

95 Holliday (2008).

96 E.g. Explanatory statement – Migration Legislation Amendment Regulation 2012 (No. 3); also, Explanatory statement – IMMI 12/035 paras 19-20.

97 See ‘2012-2018 requirements’ sub-section.

98 Berg (2011); Piller and Lising (2014).

99 Kendall (2014), p 127.

100 OMARA (Date unknown-a).

101 OMARA (Date unknown-a).

102 Department of Immigration and Border Protection (2016).

103 OMARA (Date unknown-a).

104 OMARA (Date unknown-a).

105 The Capstone’s content has not been made publicly available.

106 See, e.g. submissions made to the Department’s latest (2020) review: https://www.homeaffairs.gov.au/reports-and-publications/submissions-and-discussion-papers/migration-advice-industry

Additional information

Funding

This work was supported by University of Technology Sydney [Chancellor's Postdoctoral Research Fellowship].

Notes on contributors

Laura Smith-Khan

Dr Laura Smith-Khan is a Chancellor's Postdoctoral Research Fellow in the Faculty of Law at the University of Technology Sydney (UTS). Her current project explores the regulation, practice and education of Australian migration advisors. She is co-founder of the Law and Linguistics Interdisciplinary Researchers' Network. Dr Smith-Khan's doctoral research examined credibility, language and communication in Australia's refugee policy, procedures and public discourse. She has published and presented her research across a number of media and disciplines, and regularly shares her work via www.languageonthemove.com.