Questions:
Question 1
Jan Brady is a registered migration agent who has recently completed a Graduate Certificate in Migration Law and Practice. Her first client is Heather Wu, a citizen of the Peoples Republic of China and her husband, Philip Clarke, an Australian citizen. Heather wishes to apply for a Partner visa (Class UK/BS), in Australia. Heather is presently in Australia on a Visitor visa (Class FA) sub class 600. The visa does not have an 8503 condition attached to it. Jan’s fees for assisting with the partner visa application are $2,200 plus disbursements and out of pocket expenses. All fees are to be paid upfront including all out of pocket expenses and disbursements to be paid to the Department of Immigration and Border Protection (DIBP).
Prepare a letter of advice, in plain English, for Jan in relation to the procedural, accounting and ethical requirements she would have to meet to comply with the requirements under the Migration Act 1958, the Migration Agents Regulations 1998 and the Code of Conduct in relation to being appointed by Heather and Philip as migration agent and charging them for the work.
You are also required to stipulate, as far as practicable, all “disbursements and out of pocket expenses” and the requirements to make a valid visa application for a Partner visa (Class UK/BS) for Heather.
Question 2
Heather obtained an Intervention Order (family violence) against Philip in the Magistrates’
Court. Philip informs you that the Order was obtained by Heather giving fraudulent evidence. Heather wants you to continue acting on their behalf in relation to the migration application and Philip wants you to withdraw the application.
What are your obligations (if any) under the Code of Conduct?
To Jan Brady
Migration Agent
For the purpose of present assignment, advice needs to be given to new migration agent Jan Brady who is acting for Heather Wu and Philip Clark, her husband related with the partner visa application that the couple is going to make. It needs to be noted that even in case of the applications that have been filed most carefully, they can be rejected even if a slight mistake is present. Therefore it is always advisable that the person filing the application should have thorough knowledge regarding the migration legislation in Australia and at the same time, such a person should be aware of the latest amendments made in the migration laws in Australia. As a result it is always preferable that some expert handles the visa application. Similarly the process of migration can be smoothened significantly if a complete application has been submitted which also ensures that any likely delays in the migration process are also avoided. In this regard, a number of requirements have been prescribed by the legislation like the Migration Act which applied to the migration agents. At the same time, there are the Migration Regulations, 1998 as well as the Code of Conduct for the migration agents which also provide the rules to regulate the conduct of migration agents. The law requires that the migration agents in Australia have to be registered with Migration Agents Registration Authority which is also known in brief as MARA. For the purpose of being registered with MARA, it is important that the migration agent possesses thorough knowledge of migration policy and procedures. Similarly, the law also requires that the actions of the migration agents are in accordance with the Code of Conduct. In this regard it needs to be noted that the government of Australia has also endorsed this Code and as a result, it is treated as a part of Australia’s migration legislation. According to the law, a person is considered to be providing immigration assistance in case the person uses experience or knowledge concerning the migration procedure in order to help any other person in regarding the matter is that can be said to be falling within the provisions of Migration Act. It has been generally seen that assistance is provided in case of the process related with filing the visa application, sponsorship or visa cancellation. However in this regard it is to be noted that the matters like filing the visa application form or translating or interpreting or providing information related within a matter regarding the application but not giving any comment or explanation cannot be said to be providing such assistance. The law also provides that a person can claim to be registered migration agent only if such person is registered with MARA for the purpose of giving immigration assistance. As mentioned above, it is necessary for all the migration agents were operating in Australia that they should be registered with this agency.
The migration agents should clearly tell their clients that generally the fee estimates that has been provided to the client by the migration agent does not cover the government fee for any other charges that the client may have to pay and therefore, such estimate only covers the fee that is being charged by the migration agent for the professional services that are provided by such agent. In this regard, a responsibility as an imposed on the migration agents to give an accurate estimate of the clients regarding all the fees that are payable. For example, the client should be clearly informed that the responsibility for paying any additional charges like the fee for translation or interpretation services, any feed that may be payable to legal professionals and accountants, fee for medical reports, courier charges for the fee that may be charged for expert consultation will have to be paid by the client.
In this way, Jan Brady is advised that whenever any client is going to purchase professional services from her, it is highly recommendable that Jan Brady should give a detailed letter containing all the information and instructions regarding their rules and regulations applicable to the migration agents in Australia and also a letter of agreement. In the same way, as the migration agent, Jan Brady is also advised to fulfill our responsibility of providing regular updates to her clients regarding the status of their visa application and such information should be provided throughout the process of migration.
In the same way, Jan Brady is also advised to provide information to our clients Heather Wu and Philip Clark that once they have hired Jan Brady as their migration agent, it becomes the responsibility of these clients to give all information as well as other relevant material that is required to perform the work. In the same way, it is also the responsibility of the clients like Heather Wu and Philip Clark to keep the migration agent updated for any change in relevant information like contact details of the client. Similarly, it is also the responsibility of the client to inform their migration agent if it can be anticipated that the client is going to be absent for some time in the future.
Similarly there can be a situation where the migration agent is required to incur additional out-of-pocket expenses for the purpose of performing the work of his or her client. Some examples of such out-of-pocket expenses include the expenses that the migration agent may have to incur the hire translation services, or for document certification, telephone calls, postage charges and similar other sundry expenses. Therefore in such a case, it is the responsibility of the migration agent to clearly inform the clients that if any services have been provided by third party, the expenses for such services have to be paid to the third party by the client.
Similarly, Jan Brady is also advised that she can ask her clients to pay some expenses even before the expenses have been incurred. But at the same time, she’s also advised that it is always preferable that before incurring out-of-pocket expenses that go beyond a particular limit, the migration agent should take prior approval of the client. Therefore in the present case, if Jan Brady has to incur out-of-pocket expenses on translation services or interpretation services, she should take the prior approval of her clients before incurring such expenses.
At this point, it is also worth mentioning that the law does not impose all the responsibilities on the migration agents alone, and there are certain responsibilities that have been prescribed for the clients also. In this way, when client finalizes an agreement with migration agent, it is agreed by the client that authentic and accurate information will be provided by the client to the migration agent and this responsibility continues throughout the period for which the agent has been engaged by the client. Similarly, another responsibility has also been imposed on the client according to which, the client has to inform the migration agent if after engaging the agent, the client finds out that certain information provided by them is not accurate or correct. At the same time, it is also the responsibility of the clients that they should pay all the fee and disbursements to the migration agent that have been settled between them. Any failure to follow these requirements may result in the beginning of the application of the client and therefore, ultimately an unsuccessful application. In such a case, the migration agent can also claim that it is not the personality of the agent to refund the fee because of failure of application can be attributed to the incorrect information provided by the client.
Another important thing that Jan Brady needs to note is that as a migration agent, she can use and rely upon the information that has been given by her clients by providing services. Therefore, it is not the responsibility of the migration agent to verify the information independently or to assume responsibility that information is complete and accurate. Under these circumstances it becomes all the more important that the client provides correct and complete information to the agent. Therefore if the client provides inaccurate information to the agent, the services provided by the agent may also be inaccurate.
In the present case, at the time of making the application for partner visa, Heather Wu and Philip Clarke should submit all the documents that support the application. For example, at the time of making the application, they have to submit a certified copy of the registry extract in which the details of their marriage are present. In the same way, they also have to submit application Form 47SP Application for migration to Australia by a partner. Another form that needs to be submitted by them is Form 40SP Sponsorship of partner to migrate to Australia.
Another requirement that has been prescribed for the migration agents in Australia is that they should all of the Code of Conduct prescribed for them. According to this code there are certain ethical and professional standards which are to be followed by all registered migration agents. In this way, the Code of Conduct provides the obligations that are to be fulfilled by the migration agents regarding their clients and also the obligations that have been imposed on the agents in matters related with fee and charges, and also the duties related in financial management as well as the record keeping duties along with the detailed standards related with the professional conduct of migration agents. In this way, the Code prescribes ethical, procedural and accounting requirements which are to be followed by Jan Brady.
In the present case, as Heather Wu has obtained an intervention order against her husband Philip from Magistrate’s Court, it appears that Jan Brady faces a conflict of interest between the two clients. Jan Brady has been informed by Philip that the order has been obtained on the basis of fraudulent evidence. Now the situation is that while Heather wants that Jan Brady should continue to act for both of them in the matter of visa application, Philip Clarke has instructed Jan Brady that she should withdraw the application. Therefore in this case, according to the Code of Conduct prescribed for the migration agents in Australia, it is required that no agent should accept the client if providing assistance to the prospected client, a situation may arise where the agent is required to act in a manner that is contrary to the interests of the present client of the agent. In the same way, the code of conduct also prescribes that the agents should avoid situation under which the migration agent is required to act against the interests of the present client. Similarly the code of conduct also prescribes that in case the migration agent is accepting instructions from the sponsor as well as the visa applicants, the agent should satisfy the himself or herself that the parties know the fact that the agent is going to act for both of them before accepting the instructions to act on their behalf. In the same way, it is also been prescribed that the parties also agreed that while acting on behalf of them, there may be a situation under which the migration agent is prevented from disclosing any information related with the application to the other party that is within the knowledge of the agent. In the same way, it is also required that parties should know the fact that while providing services to the visa applicants and the sponsor, the agent should not give advice to the other party is such advice is contrary to the interests of the other party. In the same way, under such a situation, both the parties are also required to know that while providing services, the agent may be required to cease to act on behalf of either party or both of them if a situation arises in which the agent has to act in a way that is contrary to the interests of either party.
A somewhat similar situation has arisen in the present case also. Jan Brady has to act in a way that could be contrary to the interests of Heather Wu or Philip Clarke. Therefore it can be recommended that Jan Brady should not act for both of them.
References
Aronson, Mark, Dyer, Bruce and Groves, Matthew, 2004, Judicial Review of Administrative Action 3rd edition Law Book Co
Charlesworth, Hilary, Chiam, Madelaine, Hovell, Devika and Williams, George 2003 ‘Deep Anxieties: Australia and the International Legal Order’ Sydney Law Review 25:23
Chisholm, Richard and Parkinson, Patrick 2003, ‘The Immigration Cases’ Australian Journal of Family Law 17:219
Coldrey, Barry 1999, Good British Stock: Child and Youth Migration to Australia, 1901-83 National Archives of Australia
Department of Immigration and Multicultural and Indigenous Affairs
Case Law
Abebe v. Commonwealth, (1999) 197 CLR 510
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte Aala, (2000) 204 CLR 82
Legislation
Migration Act 1958
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