Ethics Tool Kit for Migration Agents

 
 

ETHICS TOOL KIT FOR MIGRATION AGENTS[1]

 Let’s look at page 2 of the toolkit and reflect on the words of Sir Owen Dixon one of Australia’s most eminent justices and a long time of the High Court and for a time its Chief Justice.  Having a proper ethic basis for one’s practice is therefore essential. Some of the examples in this paper show that some migration agents have flagrantly ignored ethical standards and some have faced or are facing criminal sanctions.

Sir Owen Dixon said:

“Experience has shown in every age that a profession cannot proceed without high professional standards. Special knowledge is always suspected by those who do not share it. Unless high standards of conduct are maintained by those who pursue a profession requiring great skill begotten of special knowledge, the trust and confidence of the very community that is to be served is lost and thus the function itself of the profession is frustrated” [2]

Sir Gerard Brennan, former Chief Justice of the High Court of Australia, (extra-judicially)[3] about ethics said:

“If ethics were reduced merely to rules, a spiritless compliance would soon be replaced by skilful evasion.”

“cannot be reduced to rules”

“not so much learnt as lived”

Migration practice is in reality a specialised area of the law. As such the principles of legal ethics not only apply but are apposite. It is difficult to imagine a rule of legal ethics which does not apply to migration law and practice.

This paper will use the ETHICS TOOL KIT FOR MIGRATION AGENTS as an adjunct to examining ethics in migration practice.

Character questions

Always asks questions about health and character with no one else present. Sometimes people are reluctant to reveal some past indiscretions in front of a relative or a spouse.

In spouse cases it may be useful to send the character and health questions to each of the spouses in advance separately and ask them to discuss these issues between them. Having secrets between spouses can raise conflict of issue questions. A spouse not knowing about a serious criminal conviction or a serious health issue when it is known by the migration advisor and the other spouse could mean leaving a client in the dark. Leaving a client in the dark could mean that the fiduciary obligation owed to that client is not met. In most spouse cases both the sponsor and the visa applicant are the client of the migration advisor.

Recent decisions

An important tool for understanding ethics is to look at cases where migration advisers either stumbled into or otherwise committed errors leading to disciplinary action.

Francesco Fazzito, CMP-20950, OMARA decision, 16 August 2016

  1. Departmental records confirm that the Agent made the following applications:
  • a sponsorship application lodged on behalf of ABC, the prospective employer of Ms L, on 30 December 2010 which was approved on 30 June 2011;
  • a nomination application lodged on behalf of ABC on 30 December 2010 which indicated Ms L to be the nominee and which was refused on 30 June 2011; 3
  • a second nomination application lodged on behalf of ABC on 27 July 2011 again, nominating Ms L and which was refused on 19 September 2011; and
  • a subclass 457 visa application for Ms L lodged on 30 December 2010 which was refused on 19 September 2011 (being the same day that the second nomination was refused).
  1. The following allegations were raised as part of Ms L’s complaint:
  • she did not receive case updates from the Agent and he was not contactable by phone or in person;
  • the Agent did not inform her that her subclass 457 visa application was refused on 19 September 2011. Instead, the Agent met with Ms L and Ms T of ABC, around May 2012 and discussed lodgment of an Employer Nominated Scheme (subclass 856) visa;
  • Ms L’s bridging visa expired on 17 October 2011 and she became an unlawful non-citizen;
  • she was unaware that she was unlawful until she approached the Department around October 2015. The Department informed Ms L at this time that there was no record of a subclass 856 visa application being lodged for her;
  • the Agent accepted instructions in writing to lodge a subclass 856 visa for Ms L;
  • the Agent received a payment of $5825 on 13 June 2012 for his professional fees and VACs with respect to the subclass 856 visa; and
  • the Agent did not lodge the subclass 856 visa as agreed with Ms L and Ms T.

Clause 2.1

  1. Clause 2.1 of the Code as relevant states:

A registered migration agent must always:

  • act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
  • deal with his or her client competently, diligently and fairly.
  1. I am satisfied that the Agent did not act in the legitimate interests of Ms L, nor did the Agent deal with her competently, diligent and fairly, by reason of my findings that:
    • the Agent failed to advise Ms L that her 457 visa was refused on 19 September 2011;
    • the Agent failed to advise her of her review rights and options following the visa refusal;
    • the Agent failed to inform her that the bridging visa associated with her 457 visa ceased on 17 October 2011, causing her to become an unlawful non-citizen;
    • the Agent failed to advise Ms T that nomination applications had twice been refused by the Department on 30 June 2011 and 19 September 2011;
    • the Agent met with Ms T and Ms L in May 2012 to discuss a subclass 856 visa for Ms L, despite the fact that Ms T’s nomination applications had
    • been refused twice, Ms L’s visa application had been refused in 19 September 2011 and Ms L was unlawful;
    • the Agent did not consider that a new subclass 856 visa application was prevented by section 48 of the Act;
    • the Agent accepted instructions to lodge an 856 visa on behalf of Ms L to be nominated by ABC on 13 June 2012 but did not lodge a visa application;
    • the Agent accepted a payment of visa charges and professional fees on 23 May 2012 with respect to the 856 visa application and there is no indication that he has refunded the payment as the visa was not lodged; and
    • the Agent deliberately provided false information to Ms T regarding the progress of Ms L’s application.

Clause 2.8

  1. Clause 2.8 of the Code as relevant states:

A registered migration agent must:

  • within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
  • act in accordance with the client’s instructions; and
  • keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
  • within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.
  1. I am satisfied that the Agent breached clause 2.8 of the Code for the following reasons:
    • the Agent did not act on his client’s instructions to lodge a subclass 856 visa application for Ms L despite accepting payment of visa charges and professional fees and confirming in writing to Ms T on 29 June 2012 that the application would be lodged that day;
    • the Agent did not advise Ms T that the nomination applications had twice been refused by the Department on 30 June 2011 and 19 September 2011 due to his failure to provide information requested by the Department to satisfy the Regulations; and
    • the Agent provided false and misleading information to Ms T regarding the progress of Ms L’s application.

Clause 3.4

  1. Clause 3.4 of the Code states:

A registered migration agent must have an address and telephone number where the agent can be contacted during normal business hours.

  1. Ms L made the following statement regarding the difficulty she encountered in contacting the Agent concerning her subclass 856 visa application:

“I have been with this agent since 2011. He has helped me to do my sponsorship of 457 and employer nomination scheme when I have satisfied all my criteria.

For the last 3 years since submitting my application, I have been ringing, emailing and going to his office to get updates. Every time, he tells me that this takes a while, and he’s constantly calling immigration to get updates. I believe from other people that this kind of application does take a while and so I have been working hard and thinking that he will look after me. After I can’t ring him for about a week, I have tried to go to his office, and learnt that he has moved out without informing me, and his mobile number is turned off, even at night or during the day. I get very worried, and have contacted immigration, and have been told that they can’t find my files. I’m now very worried, and need to get back my files, and now in belief that he may have not done anything.

I have always believed that he’s done work for a long time, and he looks very genuine. Please assist me in locating him.”

 

67. In the absence of information from the Agent regarding his ability to be contacted by his clients during normal business hours, and given the difficulties the Authority has itself experienced in contacting the Agent in relation to the investigation of this complaint, I accept the allegations in Ms L’s complaint and I am satisfied that the Agent breached clause 3.4 of the Code.

 

Clause 5.2 of the Code

  1. Clause2 of the Code as relevant states:

A registered migration agent must:

  • before starting work for a client, give the client:
  • an estimate of charges in the form of fees for each hour or each service to be performed, and
  • disbursements that the agent is likely to incur as part of the services to be performed; and
  • an estimate of the time likely to be taken in performing the services; and
  • as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of:
  • the estimate of fees; and
  • the estimate of the time likely to be taken in performing the services; and
  • give the client written confirmation (an Agreement for Services and Fees) of:
  • the services to be performed; and
  • the fees for the services; and
  • the disbursements that the agent is likely to incur as part of the services; and
  • give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.

69. On 5 February 2015 the Authority requested that the Agent respond to Ms L’s complaint under paragraph 308(1)(a) of the Act. In that request, the Agent was specifically asked to provide to the Authority a copy of the contracts that were signed with Ms L.

 

  1. The Agent has not provided the Authority with a copy of the contracts. In the absence of any evidence from the Agent, and given the other findings I have made about the Agent’s practices in this decision, I am satisfied that an Agreement for Services and Fees was not signed with Ms L (or Ms T) and that the Agent breached clause 5.2 of the Code in this regard.

 

Clause 9.1 of the Code

  1. Clause1 of the Code as relevant states:

 

A registered migration agent must respond properly to a complaint by a person (whether or not the person is a client) about the work or services carried out by the agent or the agent’s employee.

 

  1. The Authority has provided the Agent with several opportunities to respond to the allegations made by Ms I find that the Agent has not provided a proper response to Ms L’s complaint, and has hindered the Authority’s investigation of the matter. Accordingly, I am satisfied that the Agent breached clause 9.1 of the Code.

 

 

Kurt Kraues  24 October 2014 MARA Cancels registration

 

Complaint

  1. The Authority received a complaint about the Agent’s conduct as a registered migration Agent from Mr Z on 28 November 2012. Mr Z held a subclass 457 visa and was employed by Corestaff (a labour hire firm) to work as a miner for a client of Corestaff. There were 14 other miners (all from Papua New Guinea – PNG) who were also employed by Corestaff and are parties to this complaint, (“the miners”).

 

The complaint alleged that:

  • the Agent advised Corestaff to make deductions from the salary payments to the miners to cover permanent residence applications. There was an initial payment of $825 followed by 78 weekly payments of $82.50. The agreement indicated that the deduction would be made from a miner’s salary. The deductions commenced from 1 May 2012. The total fee payable under the agreement was $7,260 including GST;

 

  • the miners’ employment was terminated by Corestaff at varying dates in October and November 2012. The miners then terminated their agreements with the Agent as they would no longer be eligible to apply for permanent residence in Australia. The miners had had no direct communication with the Agent as everything was arranged by Corestaff;

 

  • they wanted to organise a refund of the fees they paid to the Agent, but the Agent ignored their attempts to contact him. When they did get to meet the Agent, the Agent refused to answer their questions;

 

  • the miners are seeking a refund of the fees paid to the Agent as they have not received any services from the Agent.

 

  1. The respective amounts for each of the miners are listed below:

Amount paid                                        Balance owing

[Names of 15 miners removed]

Total $31,680                                      $77,220

 

 

  1. In the absence of any relevant evidence provided by the Agent, the Authority is satisfied that:

 

  • the monies paid by the miners are not held in the Agent’s clients’ account;
  • the Agent did not issue receipts to the miners for the payments they made;
  • the Agent did not issue a final statement of services to the miners whose agreements were terminated;
  • the Agent did not keep records of the clients’ account or has not made them available to the Authority.

 

 

  1. It is apparent that the Agent has not provided services to any of the miners. As such any withdrawals are in clear breach of the agreement to provide immigration assistance.

 

  1. In the absence of any relevant evidence the Authority is satisfied that:

 

  • the Agent made withdrawals from the clients’ account without providing any related services or making appropriate disbursements;
  • the Agent did not issue statements of services for the withdrawals that the Agent made;
  • the withdrawn funds were inappropriately used for the Agent’s own purposes.

 

 

  1. The Agent has stated that the purpose of the agreement was for the Agent to be available to provide immigration assistance rather than to actually provide immigration assistance. This interpretation of the agreement suggests that the miners would pay the Agent a substantial amount of money in the event they needed the Agent’s professional services. They would then have to pay another fee to engage the Agent’s advice. It is difficult to accept that the miners would have willingly entered into such an arrangement which is the Agent’s interpretation of the agreement.

 

Seriousness of behaviour

100.I consider the Agent’s behaviour in this matter is of a serious nature.

 

101.I am satisfied that the Agent has demonstrated:

 

  1. a blatant disregard of the interests of his clients in this case who are most vulnerable (PNG miners) having no knowledge of visa regulatory requirements or of Australian law;
  2. a blatant disregard for the law and his professional obligations as a registered migration agent.

102.I consider the Agent’s conduct to be most serious in that he has breached the trust placed in him by his clients and he has breached the law by misappropriating clients’ monies. The Agent’s behaviour is not acceptable or to be tolerated within the migration advice profession. The Agent’s behaviour is not only unlawful and unethical but would be viewed with contempt by other registered migration agents.

 

 

Mr Rudy Noel Frugtniet  Decision to cancel 6 November 2014

 

Essentially the decision was about MARA finding that the agent had been part of a process to fabricate work references for TRA assessment on work experience for a cook.

 

Issa, Issam MARA decision to cancel 10 October 2014

 

The Office of the MARA found that the agent prepared and submitted applications containing generalised information not supported by instructions from his clients; he included misleading and inaccurate statements to enhance the prospects of success of the visa applications; and failed to provide frank and candid advice to his clients about the prospects of success of their visa applications. The agent also failed to maintain proper records of material communications with his clients. As a result of the investigation the Office of the MARA was satisfied that the agent had breached multiple provisions of the Code of Conduct and was not a person of integrity, and not a fit and proper person to give immigration assistance. The agent’s registration has been cancelled for 5 years.

 

Applicants for protection visas are sometimes desperate and great care has to be taken not to encourage applications which have minimal prospects of success. Sometimes the best advice which can be given is that the end of the line has arrived.  (The full decision in Issa is part of the accompanying material).

 


WON, Hi  MARA decision to caution 27 June 2014

 

On 27 June 2014, the Authority decided to caution the agent for a period of twelve months. As a result of its investigations, the Authority found that: – The agent admitted to providing a fraudulent document to the Department of Immigration and Border Protection in relation to a visa application. The agent prepared a financial statement for a subclass 457 visa application (training benchmark) which did not accord with the client’s instructions, for the purpose of enhancing the prospects for success. The conduct of the agent was unacceptable and improper, and may adversely affect the reputation of the migration advice profession. The agent also failed to provide his client with an Agreement for services and fees (contract), and with a Statement of services. Following its investigation, the Authority was satisfied that the agent had breached the following clauses of the Code of Conduct: 2.1, 2.9, 2.23, 5.2(c) and 5.5. However, given that the agent does not have a prior record of disciplinary breaches and had promptly admitted to his conduct and acknowledged his actions were wrong and offered no excuses, the Authority was satisfied that such conduct would not occur again On that basis, the Authority decided that a caution was a sufficient sanction. An abridged version of the decision is attached below. Personal details have been removed in the interests of protecting the privacy of the parties involved.

 

Making things up to enhance an application is of course wrong, and the agent was appropriately punished.  The decision is part of the accompanying material and it looks like the agent did not look at all options. The visa applicant was a student and one assumes was under 31. A person in her position would have been better off going back to South Korea and applying for a working holiday visa.  Such visas are granted quickly and then on her return would have had enough time to sort out the subclass 457 visa application. Bad strategy as well on the training benchmark. The training benchmark is fully discussed in the paper on Temporary Work Visas. The benchmark requires ‘recent expenditure’ and not that the training actually have occurred prior to the lodgement of the sponsorship application. There is nothing illegal about a sponsoring employer paying for training in advance provided it is authentic and the training will take place in the future. Here the solution would have to have advised the employer to pay for training up front to meet any deficiency in the training benchmark.


ZHENG, Joseph MARA decision to caution 27 June 2014

 On 11 April 2014, the Authority decided to caution the agent for a period of twelve months. As a result of its investigations, the Authority found that: – The agent had allowed or otherwise failed to prevent his assistant from placing a client’s initial or signature on a Form 956 without any authority or consent – The conduct of the assistant lacked integrity and may adversely affect the reputation of the migration advice profession – The agent is responsible for the actions of his assistant in performing work in connection with immigration assistance – The agent had failed to take all reasonable steps to maintain the reputation and integrity of the migration advice profession – The agent failed to exercise effective control of his office due to failure to adequately control the actions of his assistant – The agent failed to properly supervise work carried out by his assistant Following its investigation, the Authority was satisfied that the agent had breached the following clauses of the Code of Conduct: 2.23, 8.1 and 8.2. The agent’s lack of appreciation of the impropriety of the conduct of signing on a Form 956 on behalf of another person without authority is of concern. However, given that the agent does not have a prior record of disciplinary breaches and had independently arranged education for himself and his staff members to prevent re-occurrence of the events the subject of this matter, the Authority decided that a caution was a sufficient sanction. An abridged version of the decision is attached below. Personal details have been removed in the interests of protecting the privacy of the parties involved

Nowadays with the availability of scanning (or even fax) it was totally unnecessary to have pretended the client signed the 956 form.  The case possibly indicates a work culture which permitted that event to happen. The 956 form is a pivotal form and must be signed by the client.

Chang v MARA

 In Chang v MARA [2014] AATA  235

The AAT found:

Of particular concern is what appears to have been the exorbitant payment he took from each client, which appears to have borne little or no relation to the work undertaken.

Here the agent was applying for student visas for clients and also enrolling them in courses. The AAT found that in some cases only 42% of the money paid by students went to the education institution for fees.

The four 2009 complaints involved the complainants providing money to Mr Chang to pay English tuition fees at a rate well in excess of the actual fees charged to Mr Chang by the relevant Australian educational institutions. Mr Chang retained this excess amount. On top of this, he received a commission from the institutions themselves. The total amount that Mr Chang retained ranged from about 54 to 58 percent of the total tuition fees paid by the student to Mr Chang. The two 2009 complaints also involved the payment of tuition fees and the retention of some of those fees by Mr Chang. In addition, the two complaints alleged that Mr Chang signed enrolment forms without the complainants’ consent. He denies this, but MARA found his explanation to be implausible.

For example, the first of the 2009 complainants, who enrolled in a 50 week English course at Cambridge College International in Sydney, paid $15,488 to Mr Chang’s business, in addition to the fees she paid to Zhaolong. The $15,488 comprised:

 tuition fees totalling $14,500 calculated on the basis of weekly fees of $290 for a total of 50 weeks.

an enrolment fee of $150.00.

 the required health insurance for international students –  a premium of $348

 a visa application fee of $450

 bank charges of $40.

 However, unknown to the first complainant, and pursuant to his agreement with Cambridge College, Mr Chang received a discount on the tuition fees. This took the form of the College accepting payment from Mr Chang for 50 weeks at $180 per week, rather than at $290 per week. As a result, while the student remitted $14,500 for tuition fees to Mr Chang, he only paid $9,000 to the College. Mr Chang retained the discount of $5,500.

In addition, Mr Chang told me that the College paid him a 30% commission on the $9,000 paid to the College. Relying on the tax invoices issued by Mr Chang to Cambridge College, it appears the College paid Mr Chang a commission of $2,970. The combined result of the discount and commission arrangements was that, of the $14,500 in fees paid by the complainant, only 42% of the fees were actually received by the College. The other $8,470 was retained by Mr Chang. From this he paid a commission to Zhaolong, which Mr Chang said was 10 to 15% of the $9,000 paid to the college. None of this was revealed to the first complainant.

 The proceedings focused on Mr Chang’s failure to recognise the complainants as clients for whom he was providing immigration assistance, and his failure to recognise the conflict between his own interests and those of his clients. The proceedings also focussed on the ramifications of those failures in terms of breaches of the Code and whether he is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. The relevant clauses of the Code are: acting in accordance with the legitimate interests of the client and dealing with the client competently, diligently and fairly (clause 2.1), not accepting the person as a client if the agent has any other interest that would affect the client’s legitimate interests (clause 2.1A), advising clients of conflicts of interest (clause 2.1B), having due regard to the client’s dependence on the agent’s knowledge and experience (clause 2.4), confirming and acting on instructions (clause 2.8), misleading or deceiving MARA (clause 2.9A), setting and charging a reasonable fee (clause 5.1), providing fee estimates and obtaining instructions on those estimates (clause 5.2), and providing a statement of services (clause 5.5).

Mr Chang said he believed the complainants were the clients of Zhaolong and were not, therefore, his clients. In my view, such an explanation is implausible. Mr Chang was providing immigration services for individual students. He provided advice to the students on applying for a visa, assisted them in completing the documentation required for their visa applications, obtained the required visa application fees from them, submitted the visa applications and fees on their behalf, and monitored the processing of the application. The students were clearly his clients with the result that he had specific obligations to the students under the Code. Equally clearly, he breached those obligations, as Mr Chang conceded at the hearing. Of particular concern is what appears to have been the exorbitant payment he took from each client, which appears to have borne little or no relation to the work undertaken.

 As to the conflicts of interest, had Mr Chang complied with the conditions of his 2009 caution, he might have had a better understanding of there being a conflict between his clients’ interest in his enrolling them in the most suitable program for their needs, and his personal interest in securing a commission for the clients’ enrolment from a college with which he had an agreement. For him to suggest that he was obliging the students by not charging them fees for providing immigration assistance is extraordinary.

I regard the breaches as serious. In particular, by allowing his interests to conflict with those of his clients, Mr Chang breached the overriding duty stated in clause 1.12 of the Code “to act at all times in the lawful interests of the agent’s client”. He is therefore liable to cancellation of his registration.

The AAT found Mr Chang was not a fit and proper person to be a migration agent and affirmed the decision to cancel his registration as a migration agent.

There are many cases involving migration agents misbehaving regarding commissions received from education institutions. It may be time for MARA to stiffen up the rules in this regard forcing agents to reveal how much they receive in commissions.

Barbara DavidsonEthics Tool Kit for Migration Agents