Breaches of the code of conduct committed by Anna

Discuss About The Admission Of Aliens Under International Law?

The facts of this case scenario relate to the principles of Migration Law. Anna has been registered as an agent with the Office of the Migration Agents Registration Authority. She leased an office and put up an advert stating that she is the best agent and would only charge after a successful registration. She received her first client, and the client is a successful businessman, she put her details her website and revealed her identity to other immigration agents. Anne requested for payment of $12,000 and promised to invoice the client as soon as the application is lodged. She, however, did not provide any documents to the client for the payment made.

There is a code of conduct prescribed for registered migration agents. The code outlines the standard of behavior of migration agents on the best practices in registering and engaging their clients.[1] The code is administered by the Migration Agents Registration Authority, and a person who intends to be a migration agent has to register with the Authority, and in case any breach of the code is committed by an agent, the Authority has imposed administrative sanctions which range from a caution, suspension of registration or the cancellation of such registration. The code, however, has not prescribed criminal sanctions for breach of the code.[2]

The authority under regulation 1.5 has the option of imposing administrative sanctions whenever a breach of the code is proved to have occurred. Anna has in her conduct breached the standards of Professional Conduct prescribed in the code. Regulation 2.8 (a) requires an agent to confirm to the client after agreeing to represent the said client the agreement or the instructions given by the client in writing.[3] Anna, however, did not provide any single document and is therefore in breach of the code of conduct. 

Regulation 2.10 prohibits an agent from running a misleading advert whether on the internet or display on the premises where the agent’s usual place of business is situated. Agents are prohibited from running adverts that relate to; their status of registration to the effect that they are registered migration agent, the guarantee of the success of an application or government policy implications on a successful or otherwise of an application made under the Migration Act.[4]

Anna had run an advert stating among other things that she is the best agent in all aspects of immigration law and that her charges will only be imposed after a successful registration. The said advert was in breach of the code under regulation 2.10 and regulation 2.11(a) which mandates every agent who wishes to advertise to include and insert the words ‘’Migration Agents Registration Number’’ or the abbreviation ‘’MARN’’ and the individual registration number of the agent.[5] Anna’s advertisement, however, did not include both the prescribed words and her registration number in total breach of the regulation outlined in the code of professional conduct.

Potential consequences for Anna

The code under regulation 3.1 requires any registered migration agent and imposes on them a duty of confidentiality. They are required to preserve the personal details of their clients and not to disclose to any person.[6] Anna has breached this express regulation by exposing to fellow registered migration agents the identity of her client by stating that she has received instructions from a very successful businessman. She also placed the details of the client on her website in total breach of the regulation that requires agents to guard the personal details of their clients and not reveal them to any person. Regulation 3.2 buttresses this fact by requiring the agent not to disclose or allow the disclosure of any confidential information on any client or the business of the client without the written consent of the said client except when required by law for such disclosure to be made.[7]

Further, the code in section 3.2A makes provision that requires registered migration agents to among other things provide all their clients with a copy of the consumer guide and record that such copy has been issued to the client immediately the agent agrees to work for the client and before the said work is commenced to provide the said guide. The guide is a document that contains information that relates to the migration advice profession, functions of the Authority, the regulations guiding the profession, the expectations of a client from the agent and procedure to be followed to address any complaints that the client may have. Anna never provided the document as required by the code.

Regulation 3.3 requires agents to inform clients of their right to receive copies of the application either freely or after payment of a fee. Anna did not inform the client of the same nor did she provide or suggest such provision to the client in total disregard of the express regulation of the code.[8] As stipulated further under regulation 5.2, agents are mandated to give an estimation of the time that the processing of a visa is likely to take as well the estimate of charges that includes the fees and disbursements that a client should pay before work is commenced and include such in a written agreement to the client. Anna however through her conduct breached the said regulation. Anna also breached regulation 5.4 which requires agents to advise clients in writing on the method of paying fees and any charges. Anna breached regulation 5.5 by disregarding the sanctions under section 313 of the act on payment of fees.

How to conduct the practice as a migration agent

As a result of breaching the regulations under the Migration Code of conduct, Anna is liable for punishment as outlined under the Migration Act 1958. The act at section 303 provides for disciplining of registered migration agents.[9] The disciplinary action is undertaken by the Migration Agents Authority where the agent has not complied with the code of conduct prescribed under the migration regulations as well as section 314 of the Migration Act.[10] The Authority has the power to do any of the following;

1. Cancel the agent’s registration by the removal of his or her details and name from the register of migration agents
2. Suspend the registration of the agent, and
3. Caution the said agent.

As a migration agent, I would conduct myself as required under the code of conduct for registered migration agents.[11] For instance, I would have included in the advert my registration number as well as the words ”Migration Agents Registration Number” or the abbreviation ‘’MARN”.[12] Secondly, after receiving instructions from a client, I would ensure that the identity and the personal details are kept as secret as possible and not disclosed to friends or making any publication of the same.

I would also provide the client with a copy of consumer guide and record that such copy has been issued to the client immediately after I agree to work for the client and before the said work is commenced.

I would give an estimation of the time that the processing of a visa would take as well the estimate of charges that includes the fees and disbursements that a client should pay before work is commenced and include such in a written agreement and give it to the client.

I would inform the client of his or her right to receive copies of the application either freely or after payment of a fee.

Requirements for lodging a valid visa application for a Business Talent Visa Class EA Subclass 132

The application is required to be made at the place and in the manner that the Minister specifies in a legislative instrument.[13] The applicant can be in or outside Australia at the time of making such application. Where the applicant is in Australia, he or she is required to hold;

1. A substantive visa, or
2. A subclass 010 Bridging A visa, or
3. A subclass 020 Bridging B visa, or
4. A subclass 030 Bridging C visa

1. The applicant must have received a written invitation by the Minister to make the application for a subclass 132 (Business talent) visa in the Significant Business History stream
2. The applicant has to make the application for the visa within the period that is stated in the invitation
3. The applicant must have been nominated by a state or Territory government agency

For the first installment, which is payable at the time of making the application. The applicant will be required to make the following payments;

1. A base application charge amounting to $ 7, 130
2. Additional applicant charge for an applicant who has attained the age of 18 of $ 3, 565
3. Additional applicant charge for an applicant who is less than 18 years of $ 1, 780

For the second installment whose payment should be made before a visa is granted, the applicant would be required to pay an amount of $ 9, 795 if such applicant was aged 18 at the time when the application was made, and has been assessed as not having functional English and has satisfied the primary criteria for such grant. Other applicants who satisfy the secondary criteria for grant would pay up to $4, 890.

Requirements for lodging a valid visa application for a Business Talent Visa Class EA Subclass 132

References

Code of Conduct for Registered migration agents, 2012

Books and publications

Crock, Mary, and L. A. Berg Immigration, refugees and forced migration: law, policy, and practice in Australia. (Federation Press, 2011)

Rubenstein, Kim. “Australian Citizenship Law in Context” (2002)

Plender, Richard, ed. International migration law. Vol. 2 (Martinus Nijhoff Publishers, 1998)

Crock, Mary. Immigration and refugee law in Australia. (Federation Press, 1998)

Dauvergne, Catherine. Humanitarianism, identity, and nation: migration laws of Australia and Canada. (University of British Columbia Press, 2005)

Hawkins, Freda. Critical years in immigration: Canada and Australia compared. Vol.2 (McGill-Queen’s Press-MQUP, 2001)

Fragomen, Austin T., and Steven C. Bell Immigration Fundamentals: A Guide to Law and Practice. (Practising Law Inst, 1996)

MacDonald, Ian Alexander, and Ronan Toal, eds. Macdonald’s Immigration law and practice (LexisNexis, 2015)

Wasserman, Jack. Immigration law and practice American Law Institute-American Bar Association Committee on Continuing Professional Education, (1999)

Weissbrodt, David, Laura Danielson, and Howard Myers Immigration law and procedure in a nutshell 9West Academic, 2017)

Khoo, Siew?Ean, Carmen Voigt?Graf, Peter McDonald, and Graeme Hugo “Temporary Skilled Migration to Australia: Employers’ Perspectives1.” International Migration 45, no. 4 (2007): 175-201

Nafziger, James AR. “The general admission of aliens under international law.” American Journal of International Law 77, no. 4 (1983): 804-847

[1] Crock, Mary, and L. A. Berg Immigration, refugees and forced migration: law, policy, and practice in Australia. (Federation Press, 2011) 35

[2] Rubenstein, Kim. “Australian Citizenship Law in Context” (2002)66

[3] Plender, Richard, ed. International migration law. Vol. 2.( Martinus Nijhoff Publishers, 1998)17

[4] Crock, Mary. Immigration and refugee law in Australia. (Federation Press, 1998)21

[5]Dauvergne, Catherine. Humanitarianism, identity, and nation: migration laws of Australia and Canada. (University of British Columbia Press, 2005)99

[6] Hawkins, Freda. Critical years in immigration: Canada and Australia compared. Vol. 2. (McGill-Queen’s Press-MQUP, 2001) 48

[7] Fragomen, Austin T., and Steven C. Bell Immigration Fundamentals: A Guide to Law and Practice. (Practising Law Inst, 1996)23

[8] Code of Conduct for Registered migration agents, 2012

[9] MacDonald, Ian Alexander, and Ronan Toal, eds. Macdonald’s Immigration law and practice (LexisNexis, 2015)304

[10] Wasserman, Jack. Immigration law and practice. American Law Institute-American Bar Association Committee on Continuing Professional Education, (1999)110

[11] Migration Act, 1958

[12] Weissbrodt, David, Laura Danielson, and Howard Myers Immigration law and procedure in a nutshell 9West Academic, 2017) 90

[13] Nafziger, James AR. “The general admission of aliens under international law.” American Journal of International Law 77, no. 4 (1983): 804-847.

[14] Khoo, Siew?Ean, Carmen Voigt?Graf, Peter McDonald, and Graeme Hugo “Temporary Skilled Migration to Australia: Employers’ Perspectives1.” International Migration 45, no. 4 (2007): 175-201