Relations With Other Agents

 
 

Here is what the Code says:

Part 4                Relations between registered migration agents

4.1                   Before accepting immigration work, a registered migration agent must consider whether he or she is qualified to give the advice sought by the client. If the agent is unsure, he or she must seek the appropriate advice or assistance, or refer the matter to another registered migration agent.

4.2                   A referral may be made, for example, if a registered migration agent is asked for advice on matters for which he or she does not regularly provide immigration assistance.

4.3                   A registered migration agent must not encourage another agent’s client to use the first agent’s services, for example by denigrating other agents or offering services that the first agent cannot, or does not intend to, provide.

4.4                   A registered migration agent must not take over work from another registered migration agent unless he or she receives from the client a copy of written notice by the client to the other agent that the other agent’s services are no longer needed.

4.5                   A registered migration agent must act with fairness, honesty and courtesy when dealing with other registered migration agents.

4.6                   A registered migration agent who gives a written undertaking to another registered migration agent must make sure the undertaking is performed within a reasonable time, if possible.

 

Complaints from MARA  & Clients

Clause 6.3 of the Code requires migration agents to respond to requests for information from MARA within a reasonable time – as specified by MARA.

And Part 9 of the Code states:

 

9.1       A 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.

 

9.2       A migration agent must submit to the procedures for mediation as recommended by the Authority about handling and resolving complaints by the client against the agent.

 

9.3       If the Authority gives a migration agent details of a complaint made to the Authority about:

(a)        the work or services carried out by the agent or the agent’s employees; or

(b)        any other matter relating to the agent’s compliance with this Code –

the agent must respond properly to the Authority, within a reasonable time specified by the Authority when it gives the details to the agent.

 

It is important to be aware also of the provisions of clause 10.2 of the Code:

 

A client is entitled to ask a migration agent (orally or in writing) to return any document that belongs to the client. The agent must return the document within 7 days after being asked.

 

Note that this obligation applies whether or not your fees have been paid. It is no answer to a request for the documents that fees are still outstanding, no matter how difficult that makes it to collect those fees![21]

 

Information

The applicant is liable for any information provided in the form, even if they were not aware that incorrect information was provided, or if another person filled in the form on their behalf. If it becomes apparent that incorrect information was provided in a visa application the Minister may cancel the visa under section 109 of the Act. Should that occur, it is important that a reading of your file makes it clear that:

  • You have properly advised the client in relation to these matters; and
  • Any failure occurred on the part of the client and not on your part as an agent.

 

These issues are particularly important in migration matters where the consequences of the failure of an application or the cancellation of a visa are very serious.

 

Any documentation provided in support of an application must be a certified copy of an original document. If the document is in a language other than English, an English translation of the document must also be lodged. The translation should be by a qualified translator. Again, record on your file that you have advised your clients of these requirements.

 

A complete copy of everything submitted to the department must ALWAYS be kept on your client file.

 

  1. Issues which may arise during the process of an application

 

  • Responding to Adverse Information

Where an application for a visa can be granted in Australia, and the applicant has a right of review if the application is refused, the Department is obliged to give the applicant the opportunity to respond to any adverse information. The exceptions to this are[22]:

  • where the information was provided by the applicant themselves; or
  • the adverse information is about a class of persons, rather than the individual applicant, or
  • adverse information which is ‘non-disclosable’[23].

 

If a visa applicant is invited to provide additional information or comment on information in connection with their visa application, they must respond within the time specified, or seek an extension of time in which to respond. If they fail to do this, the Minister (or the delegate) may make a decision to grant or refuse to grant the visa without taking any further action to obtain the additional information. (See section 62 and 63 of the Act).

 

  • Time limits for communication

 

Ss 52-64 of the Act and Division 2.3of the Regulations specify time limits for communicating with the Minister / Department in certain circumstances. The ultimate sanction is contained in s. 62 which reads:

 

  1. (1) If an applicant for a visa:

(a)        is invited to give additional information; and

(b)        does not give the information before the time for giving it has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.

 

(2)        If an applicant for a visa:

(a)        is invited to comment on information; and

(b)        does not give the comments before the time for giving them has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant’s views on the information.

 

But this is subject to s. 55 which reads:

 

Section 55. Further information may be given

 

  1. (1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

 

(2)        Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

 

Therefore if a client fails to provide you with information within the time required you still submit further material to DIAC at the risk that a decision may have been made before that material arrives at DIAC.

 

Where an applicant is invited to give further information or respond to information specific time limits apply. These are found at regulation 2.15 which states:

 

Regulation 2.15.          Response to invitation to give information or comments – prescribed periods

 

2.15.    (1)        For the purposes of subsection 58 (2) of the Act (which deals with invitations to make comments or give further information), and subject to subregulation (2), the prescribed period for giving additional information or comments in response to an invitation is:

(a)        in the case of an application for a substantive visa that was made by an applicant who is in immigration detention – 3 working days after the applicant is notified of the invitation; or

(b)        in the case of an application made by a person who is in Australia, other than a person referred to in paragraph (a):

(i)         if the invitation is given at an interview – 7 days after the interview; or

(ii)        if the invitation is given otherwise than at an interview:

(A)       in the case of an application for a Long Stay (Visitor) (Class TN), Medical Treatment (Visitor) (Class UB) or Short Stay (Visitor) (Class TR) visa – 7 days after the applicant is notified of the invitation; or

(B)       in the case of an application for a Temporary Business Entry (Class UC) visa made by an applicant who seeks a visa to remain in Australia (whether or not also a visa to travel to and enter Australia) for a period, or periods, of 3 months or less – 7 days after the applicant is notified of the invitation; or

(C)       in any other case – 28 days after the applicant is notified of the invitation; or

(c)        in the case of an application made by an applicant who is not in Australia:

(i)         28 days; or

(ii)        if the Minister so decides in the circumstances of the case – 70 days;

after the applicant is notified of the invitation.

 

(2)        Subregulation (1) does not apply to a request for information or comments to be obtained from a third party regarding the following matters:

(a)        the applicant’s health;

(b)        the satisfaction by the applicant of public interest criteria;

(c)        the satisfaction of criteria relating to the applicant’s capacity to communicate in English;

(d)        assessment of the applicant’s skills or qualifications.

 

(3)        For the purposes of paragraph 58 (3) (b) of the Act (which deals with the time in which an interview is to take place), the prescribed period is:

(a)        in the case of an application for a substantive visa that was made by an applicant who is in immigration detention – 3 working days after the applicant is notified of the invitation; or

(b)        in the case of an application made by an applicant who is in Australia, other than a person referred to in paragraph (a):

(i)         in the case of an application for a Long Stay (Visitor) (Class TN), Medical Treatment (Visitor) (Class UB) or Short Stay (Visitor) (Class TR) visa – 7 days after the applicant is notified of the invitation; or

(ii)        in the case of an application for a Temporary Business Entry (Class UC) visa made by an applicant who seeks a visa to remain in Australia (whether or not also a visa to travel to and enter Australia) for a period, or periods, of 3 months or less – 7 days after the applicant is notified of the invitation; or

(iii)       in any other case – 28 days after the applicant is notified of the invitation; or

(c)        in the case of an application made by an applicant who is not in Australia:

(i)         28 days; or

(ii)        if the Minister so decides in the circumstances of the case – 70 days;

after the applicant is notified of the invitation.

 

(4)        For the purposes of subsection 58 (4) or (5) of the Act (dealing with extending the period to respond to an invitation or attend for interview), the prescribed further period is:

(a)        if the applicant is in immigration detention – 2 working days; or

(b)        if the applicant is in Australia but is not in immigration detention – 7 days; or

(c)        if the applicant is not in Australia:

(i)         7 days; or

(ii)        if the Minister so decides in the circumstances of the case – 28 days;

after the applicant is notified of the invitation.

 

Note:    If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.  Note also section 494D of the Act which specifies that where an authorised recipient has been nominated, any notice must go to the authorised recipient, otherwise it is not a valid notice.

 

Make sure that you have a system in place for recording:

  • when you receive a notice or letter from the Department which requires a response under one of these provisions,
  • the date on which you advised the client of the requirement, and
  • the date on which the response is due
  • the date you forwarded the response

 

TIME LIMITS FOR REVIEW OF DECISIONS

Time limits in migration law can be strict, particularly when it comes to deadlines for review of decisions to the MRT and RRT.

 

The time limits for review to the MRT and RRT are particularly strict and there is no ability to extend a deadline once it has been missed. If a deadline to appeal to the MRT or RRT is missed, a client would lose their right of appeal with regard to that particular case forever unless there is some deficiency in the notification of decision. For example, the notification does not properly outline the time in which the application for review may be made pursuant to s 127(2)(c)(ii) of the Migration Act 1958.

 

It is pointed out that the deeming provisions as set out in s 494C(7) of the Act mean that if there is a deficiency in the procedures of giving the notification of the decision, the notification is taken to be received by the client even if the client never received it.

 

S 494C

DOCUMENT NOT GIVEN EFFECTIVELY

(7)      If:

(a)      the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

(b)      the person nonetheless receives the document or a copy of it;

 

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

For example, if a notification of a visa refusal is sent to a client via registered post in compliance with S 494B(4) but the client never receives the letter, the client will be nonetheless deemed to have received the notification letter even if he did not ever receive the letter.

Time Limits for Visa Applications relying on Sponsorship and/or Nomination

Where a visa application requires some form of sponsorship and/or nomination, agents should be aware that the sponsorship and/or nomination must either be approved or an application for review of the sponsorship and/or nomination refusal has been filed.

In some cases, clients may require the sponsorship in order to have a right to appeal pursuant to s 338(2)(d).

S 338(2)

(d)      where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

(i)      the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

(ii)      an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

In other cases such as in the employer sponsored visas, clients may require the sponsorship and/or nomination to also be appealed (if there has been a refusal) in order for the appeal of the visa application to be successful.

For example, for the subclass 856 visa application if the appointment of the job position has been refused and the 856 visa has been consequently refused, there must be an appeal of both the 856 visa refusal and the refusal of the appointment. This is because cl 856.221 (time of decision criterion) requires the appointment to be the same appointment relied on at time of application.

856.221

The appointment mentioned in paragraph 856.213(a):

(a)      has been approved; and

(b)      has not been withdrawn; and

(c)      continues to satisfy the criteria for approval; and

(d)      is still available to the applicant.

In other words, if the appointment has been refused, it is not enough that the employer submits a new application for approval of the appointment. An approval of a subsequent appointment will not satisfy cl 856.221 as it requires the appointment to be the same one that the client was relying on at the time the 856 visa application had been made. As a result a client would be unlikely to be successful on appeal of the 856 visa refusal given that the visa would have nonetheless been refused as the client did not satisfy cl 856.221. Therefore agents would need to ensure that the employer had submitted an application for review of the decision to refuse the appointment as well as the visa applicant submitting an appeal of the 856 visa refusal.

Notification of refusals of sponsorships, nominations or appointments may occur at a different time than the notification of refusal of the visa application. Agents must therefore be careful to note the various deadlines for appeal. The writer is aware of situations where agents have filed an appeal for a visa application to the MRT but failed to file an appeal for the sponsorship or nomination within the time limit and vice versa, resulting in clients being unsuccessful in their appeal or losing their rights of appeal.

 

Multiple deadlines

 

As indicated above, one should be aware that sometimes that there may be more than one time limit for appeal with regard to a particular case. Multiple deadlines for appeal can exist where a visa application is reliant on sponsorship and nomination applications or where DIAC have notified the client using more than one method. For example, the writer is aware of circumstances where DIAC have notified individuals through registered post and email on the same day. Pursuant to s 494 C(4) and (5), this would set out different time frames for the deadline for appeal. As a matter of practice, one should always meet the earlier deadline rather than the later.

 

Multiple deadlines can also exist when a client is holding a bridging visa and seeking to appeal a decision (judicial review). If a visa application has been refused, bridging visas cease within 28 days of notification of the decision. In some cases, a client’s bridging visa may cease prior to the deadline for applying for review to the Courts. As a matter of practice, appeals to the Court should be filed prior to a client’s bridging visa expiring even if the deadline for judicial review is some time later.

 

For example, if a client receives notification of a visa refusal by email on 11 October 2010 their bridging visa will expire on 8 November 2010. However, the deadline for judicial review would be 15 November 2010.

 

From a practice point of view, the Court application should be filed on 8 November 2010 at latest so that the client can obtain a bridging visa connected to their judicial review and to avoid any period of unlawful stay in Australia. Filing the Court application by 8 November 2010 would also be essential in order for the client to retain their Bridging Visa A status, if the client was holding a BVA connected to their appeal to the Tribunal.

 

CALCULATION OF TIME LIMITS

(Based on letter dated 1 March 2010)

 

DecisionReview soughtTime LimitDeadline if hand delivered on the date of the letterDeadline if posted

Refusal letter dated 1 March 2010 for visa which could have been granted inside & outside Aust [see s. 338(2) & (7A) & reg 4.10(1)(a)] & letter sent to an Aust addressMRT21 days from date notice received22 March 2010Under ss. 494B(4) & 494C(4), letter is taken to be received 7 working days after the date of the letter – 31 March 2010, (unless the delivery address is in a state where there is a Labour Day public holiday) then the deadline is 1.04.10

Refusal letter dated 1 March 2010 to an overseas address for visa which could have been granted inside & outside Aust [see s. 338(2) & (7A) & reg 4.10(1)(a)]MRT21 days (NOT working days) from date notice received22 March 2010Under ss. 494B(4) & 494C(4), letter is taken to be received 21 days (ie NOT working days) after the date of the letter –  then the deadline is

 

12 April 2010

Visa cancellation letter dated 1 March 2010 for a person in Aust [see s. 338(3) & (3A[24]) & reg 4.10(1)(b)]MRT7 working days from date notice received10 March 2010 or 11 March 2010 if served is in a state where there is a Labour Day public holidayBy ss. 494B(4) & 494C(4), letter is taken to be received 7 working days after the letter’s date – 19 March 2010, (unless there’s a Labour Day public holiday in the addressee’s state) then the deadline is 22 March 2010

Refusal letter dated 1 March 2010 to an overseas address for an offshore visa with MRT  rights [see s. 338(5) (6) & (7) & reg 4.10(1)(c)] or points score letterMRT70 days (NOT working days) from date notice received10 May 2010Under ss. 494B(4) & 494C(4), letter is taken to be received 21 days (ie NOT working days) after the date of the letter –

 

then the deadline is

31 May 2010

Refusal letter dated 1 March 2010 to an Aust address for an employer sponsorship issue [see s. 338(9) & regs 4.02(4) & 4.10(1)(d)]MRT21 days (NOT working days) from date notice received22 March 2010Under ss. 494B(4) & 494C(4), letter is taken to be received 7 working days after the date of the letter – 31 March 2010, (unless the delivery address is in a state where there is a Labour Day public holiday) then the deadline is 1.04.10

Bridging visa refusal or cancellation for a detainee, letter dated 1 March 2010 [see s. 338(4) & reg 4.10(2)(a)]MRT2 working days3 March 2010Assumed letter is not posted but served on the applicant on the date of the letter

Security bond decision for a detainee, letter dated 1 March 2010 [see s. 338(9) & regs 4.02(4)(f) & 4.10(2)(aa)]MRT2 working days3 March 2010Assumed letter is not posted but served on the applicant on the date of the letter

Other MRT reviewable decisions affecting detainees [reg4.10(2)(b)] made on 1 March 2010MRT7 working days from date notice received10 March 2010 or 11 March 2010 if served is in a state where there is a Labour Day public holidayAssumed letter is not posted but served on the applicant on the date of the letter

MRT or RRT decision (see s. 477) for a decision dated 1 March 2010 sent to an applicant in AustJudicial Review to Federal CourtWithin 35 days of the notification of the decision5 April 2010 if decision handed to applicant or agentBy ss. 379A(4) & 379C(4)[25], letter is taken to be received 7 working days after the date of the decision –, (14 April 2010 unless delivered where there’s a Labour Day public holiday) then the deadline is 15 April 2010

MRT decision (see s. 477A) for a decision dated 1 March 2010 sent to an applicant overseasJudicial Review to Federal CourtWithin 35 days of the notification of the decision5 April 2010 if decision handed to agentUnder ss. 379A(4) & 379C(4), letter is taken to be received 21 days (ie NOT working days) after the date of the letter – then the deadline is 26 April 2010

 

Duties of Agents to Employees

The Code also stipulates, in Part 8, certain duties with regard to an agent’s employees. The agent must:

  • exercise effective control of his or her office,
  • properly supervise the work of staff, and
  • ensure all immigration assistance is given by a registered migration agent.

 

Immigration assistance is defined in the Migration Act 1958 at section 276 as follows.

  • For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
  • preparing, or helping to prepare, the visa application or cancellation review application; or
  • advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
  • preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
  • representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

 

  • For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
  • preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or
  • advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
  • representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

 

  • Despite subsections (1) and (2), a person does not give immigration assistance if he or she merely:
  • does clerical work to prepare (or help prepare) an application or other document; or
  • provides translation or interpretation services to help prepare an application or other document; or
  • advises another person that the other person must apply for a visa; or
  • passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

 

An agent must also take steps to ensure all staff, including clerical staff, are familiar with the Code. In addition an agent should ensure all employees are of good character and act consistently with the Code during their employment.

 

Always ask for an acknowledgement of a letter or communication

 

Always ask for an acknowledgement of a letter or communication, because it will be the letter which has gone astray which will cause you a problem.  So whenever you write to DIMIA or one of the Tribunals always finish your letter or email with the following:

 

Kindly acknowledge receiving this communication by return mail.

 

If you have then not received a response within reasonable time then you need to contact who you wrote to to check of the communication has been received.  You need ti diarise the need to check if a response has arrived.

 

Mentoring

 

In the early days of practice it is very useful to have a mentor.  This would normally be a more senior migration agent or a legal practitioner.  This would be someone who would be available to look over matters you regard as being on the edge of your competency.  You would ordinarily expect to pay such a person a fee or a retainer to be available to be your mentor.

 

Buddy

 

An associated issue for a sole practitioner migration agent is – what would happen if you were suddenly taken ill and become incapacitated and there were matters which needed urgent attention.  Is there a qualified person available to step into your shoes to protect the interests of your clients?  It would be prudent to set up a mutual buddy system with a fellow migration agent to be able to step into your practice and keep things going until you get back to work.

 

ANNEXURE

 

SOME RECENT & PAST DECISIONS BY MARA

 

In the matter of Ronald Wright  ( 3 February 2011) the agent’s registration was cancelled. The agent had employed a Mr F as a Chinese translator and assistant.  Mr F was not a registered migration agent.  Here is how Mr Wright described Mr F:

 

‘I have came (sic) to realise that [Mr F] is a professional con man, he can talk very sweet and give you the impression that all is alright or will be alright….Most of the clients are saying the same thing about [Mr F], a sweet talking man but black heart.’

 

But MARA found:

 

  • On the available evidence although Mr F was not a registered migration agent or a Director of the business he provided immigration assistance and received client moneys. The Agent was the actual registered migration agent and Director and the ostensible employer within Migrate. Therefore, the Agent was responsible and has failed to meet his responsibilities and obligations to his clients.

 

There were numerous complaints against the agent and as a result MARA concluded:

 

  • Having regard to the totality of the complaints discussed above I am satisfied that for the purposes of section 303(1)(f) of the Act, the Agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance. Based on the evidence before me I am satisfied that the Agent has:

 

  • repeatedly breached his obligations to act in the best interests of his clients;
  • he has failed to have due regard to his clients dependence on his knowledge and experience;
    • received fees from the complainants for services that he either failed to perform or performed so poorly as to disadvantage their migration prospects, and for some clients allowed an unregistered person to provide immigration services contrary to the law;
  • did not act in accordance with instructions provided to him by his clients, in some cases leading to an invalid visa application;
  • accepted payment for professional fees and did not follow client instructions;
  • allowed an unregistered person to have access to clients’ money held in trust on their behalf;
  • allowed an unregistered person to mismanage client funds and to abscond with a large amount of money held in trust on behalf of his clients, and;
  • he has demonstrated a lack of due diligence in regard to the keeping of client files and records.

 

Here is what MARA reported on one of the complaints:

 

  1. When the Agent left the former Migrate office at 2 Queen St Melbourne in December 2009 he left behind a large number of files that were in disarray. The Authority was advised by some complainants that the real estate agent let some of the Agent’s clients into the office to locate their own files and documents as it appeared that the office had been abandoned. At this time, there was a high risk that any of the clients or other persons present could freely have accessed any or all of the confidential materials.

 

The Agent temporarily lost Mr H’s passport, a matter which Mr H reported to the relevant consulate prior to the passport being located in a rubbish bin at the former Migrate offices.

 

Ultimately MARA concluded:

 

  • The conduct referred to in this decision indicates that, should the Agent attempt to engage in migration practice in the future, he would pose a clear and significant risk to consumers.

 

Agent suspended

 

In Varinder Singh Sandhu, (decision dated 9 March 2010)  the agent was suspended until he undertook 4 hours of private tuition on Ethics, a further 4 hours on office management and among other things re-imburse a client for fees paid.

 

Here a student visa applicant suffered a financial loss of $9058 being fees paid to a college.  The agent also failed to respond to requests by MARA for an interview. The agent also did not have an address and telephone number where he could be contacted during the day.

 

Monies not dealt with properly

 

Svetlana Dzelebdzic (decision dated 19 October 2010) had been registered as a migration agent from May 1997 until May 2009 when her registration expired without renewal. In this case it emerged that the agent received almost $30,000 from a client but did not either pay fees to education providers and did not do what she was asked to do.  Here are extracts from the MARA decision –

 

  1. Mr R claims to have paid to the Former Agent fees totalling $28,974 for professional fees and on account of College B enrolment fees and associated disbursements for Mr N.

 

  1. Having regard to the evidence, which is not in dispute, I find that the Former Agent accepted money from Mr R for the provision of immigration assistance and failed to provide the services for which she was paid, namely the enrolment fees which she did not pay to either College A or College B.

 

I find that the Former Agent has failed to return the money which was paid to her by Mr R, for which she did not provide the agreed services.

  1. Mr L claims to have made payments amounting to $9,500 in relation to the MRT review application to the Former Agent. He has provided evidence of documents entitled: “Tax Invoice/Statement” and issued by the Former Agent in relation to the following:

 

  • 12 March 2008: $3,300 for “professional fees, costs and disbursements: MRT – Total professional fees”.
  • 12 March 2008: $1,400 for “MRT application fee”.
  • 12 June 2008: $3,300 for “professional fees, costs and disbursements: Barrister fees”, and
  • 1 July 2008: $1,500 for “professional fees, costs and disbursements: barrister fees”.

 

  1. Having regard to the evidence, which is not in dispute, I find that the Former Agent charged the complainant the MRT review application fee, professional fees for the preparation and lodgement of the MRT application and barrister fees. I find that the Former Agent failed to lodge the MRT review application and to engage the services of counsel that her former client was therefore charged inappropriately. Given the complainant’s allegations that this money was paid to the Former Agent and the documentary evidence showing that $3,300 had been paid by the complainant for “barrister fees”, I find that the Former Agent charged Mr L for services which she did not provide.

 

Having regard to the evidence, which is not in dispute, I find that the Former Agent failed to follow Mr L’s instructions to lodge an MRT application on his behalf. In making this decision I have placed weight on the evidence from the Department that the MRT application was not lodged and on the “Invoice/Statement” documents issued by the Former Agent.

 

  1. I find that the Former Agent accepted money from Ms S for the provision of immigration assistance and failed to provide the services for which she was paid, namely the enrolment fees which she did not pass on to College A.

 

I find that the Former Agent has failed to return this money which was paid to her by Ms S, for which she did not provide the agreed services.

 

Having regard to the evidence, which is not in dispute, I find that the Former Agent has fabricated invoices to mislead Ms S to believe that she had enrolled her sons in College A.

 

The Former Agent should be barred from being registered as a migration agent from the date of this decision for the maximum period of five years.

 

Maria Thereza Leyes (decision dated 27 October 2010)

 

The case involved numerous complainants of the type set out below:

 

Complaint 4404

 

  1. In response to the section 309(2) notice, through her legal representative, the Agent

submitted that she had sent emails to the Department in May 2008 enquiring into the

progress of the visa, but that no response had been received.

  1. The Agent claims to have spoken with a Department officer who informed her that the

application had been finalised and that she had subsequently requested a copy of the decision. Upon becoming aware that the application had been refused and that the appeal period had passed, she provided a statutory declaration to the Department confirming that she had not received the decision letter.

 

  1. The Agent claims that although her email sent an automated response to the

Department, this did not mean that the email was received in her inbox, due to

technical problems she experienced with her computer.

  1. The Agent states that even though she provided the statutory declaration to the

Department, she was advised that nothing could be done. The Agent organised for the

clients to attend the Compliance section in the Department to discuss her client’s

options.

  1. The Agent admits that “she should have been more proactive with respect to

[Ms F A’s] application” and that “she should have kept herself abreast” of the

application. The Agent also admits that there was poor management of the files and

client documents.

  1. The Agent claims that she did keep the client fully informed of the application but that a

written account of these conversations was not kept, nor were emails or letters sent

confirming the purported conversations.

 

 

The volume of complaints lead to the migration agents having her registration cancelled which meant that she could not be registered for 5 years.

 

The above nevertheless is a useful indicator of how not keeping a track of emails and communication can cause problems.

 

Cancellation despite no complaints before MARA

In one decision (File No: 0428346), MARA decided to cancel an agent’s registration on the basis that the agent was not a fit and proper person. In this case, the migration agent was also a lawyer whose legal practising certificate had been cancelled by the Law Institute of Victoria (LIV) due to issues relating to legal matters not related to migration. It is important to note that in this case there were no complaints before MARA in relation to the agent and the agent had never previously been disciplined by MARA. The agent had voluntarily ceased providing immigration assistance since the cancellation of his legal practising certificate. Additionally, the agent had also ensured that MARA was aware of the decisions and sanctions being imposed him in relation to the LIV matters and had accepted that penalties may be imposed on him by MARA and had in fact proposed that MARA suspend his registration for 9 months. Nonetheless, MARA decided that it was appropriate to cancel the agent’s registration. In making its decision MARA stated in paragraph 39 of the decision:

“The Authority considers that the standard applied to migration agents, in terms of the behaviour that occurred in the ‘S matter’ and ‘J matter’, is no less than the standard of conduct applicable to solicitors[26]. The Authority is therefore satisfied that the Agent fails the test of being a fit and proper person to practice as a migration agent.”    

 

Registration imposes a personal responsibility on an agent

In another decision (File No: 0324610), MARA decided to sanction an agent for a number of breaches of the Code of Conduct. As part of its reasoning, MARA considered that the agent had breached Clause 2.1(b) of the Code of Conduct by failing to forward a HSA request to his client as soon as it was received thereby causing delay in the application process. According to the agent, the delay in forwarding the HSA request was due to the agent being overseas on holiday at the time and the fact that his employer did not have appropriate procedures in place to monitor the agent’s work whilst he was absent. (The agent was an employee of a larger organisation.)

 

In its decision, MARA made the following comments in paragraphs 53-55:

 

“The Agent also noted that he did not receive the Case Officer’s reminder of the HAS email of 21 September 2007 because he was overseas on holiday at the time. The Authority accepts that an Agent will be out of contact at times; however in such circumstances they have a responsibility to ensure that their client’s matters are monitored in their absence so that appropriate action can be taken.

 

The Agent has submitted that as he was an employee of a larger organisation, he was restricted in his power to control his office and its procedures. He has blamed both the failure to promptly react to the Case Officer’s reminder of 21 September 2007 and the failure to lodge Mr Huang’s initial subclass 485 visa application on a junior staff member who, he alleges, then resigned.

 

While registration as a migration agent is a personal appointment and agents are expected to control their office in all circumstances, the Authority recognises that as an employed agent of a larger organisation the Agent did not have full power to control his office and staff. This has been taken into account by the Authority.”

 

However, while MARA accepted that an agent as an employee of an organisation may not have the power to control the office and the staff, registration as a migration agent nevertheless imposed a personal responsibility, as indicated in paragraph 21 of the decision:

 

“Mr Wen noted that his employer at the time “didn’t have the procedures and policies on handling urgent situations when an agent was away”. While the Authority notes that Mr Wen was an employee of a medium-sized company at the time, registration as a migration agent is a personal appointment and therefore agents bear a personal responsibility to ensure that systems are in place to properly manage applications and correspondence when the Agent is absent from the office.”

 

Use of templates

While templates may be of some use in migration practice, it is essential that the templates do not exceed their purpose as a guideline or formatting standard. All applications should reek of authenticity i.e. contain the relevant documentary evidence and reflect the individual circumstances of a client. MARA take a dim view of applications lodged by an agent that utilise templates to the point that the applications are virtually identical, as seen in the following decision (File No: 9688515) at paragraphs 18-19:

 

“In response to the original complaint, the Agent stated that:

It is commonly known that some certain words, phrases and even sentences would be unavoidable in legal forms and documents, especially when similar meanings and claims are translated from one language into another language

 

This submission was rejected in the section 309(2) notice, which stated the Authority did not accept that claims for protection come within the category of words that are ‘unavoidable in legal forms and documents’, nor that the identical passages found in the applications are the result of translating ‘similar meanings’ from one language to another, as it was inconceivable that the Agent would have repeatedly translated claims into exactly the same words, including spelling and grammatical errors”.

 

MARA went further to say in paragraph 23:

 

“Further, the Authority considers that applications containing identical phrases would be likely to come to the attention of the DIAC and lead to adverse inferences being drawn, which could not reasonably be viewed as being in the legitimate interests of the applicant.”

 

Note that in this matter the agent had lodged 9 protection visa applications which contained numerous identical submissions/statements and no documentary evidence had been provided to support these claims. Not surprisingly, DIAC refused all 9 visa applications.

 

Immigration assistance versus legal services

In the same matter discussed above, the agent was also found to provide services that were beyond her capacity by providing legal services. MARA made a specific distinction between the provision of ‘immigration assistance’ and ‘legal services’ as outlined in paragraphs 32-34 of the decision:

 

“In response to the section 309(2) notice, the Agent’s representative submitted that there is no obligation on an agent to refer such matters to a lawyer, as the definition of ‘immigration assistance’ in s 276 of the Act includes ‘preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application’.

 

The Authority notes the definition of ‘immigration assistance’ and considers that this matter comes within its jurisdiction by virtue of that definition. However, the Authority does not accept that the definition creates an automatic right for migration agents to provide assistance with court applications and other work that would generally be considered to constitute ‘legal services’. Agents should ensure in all cases that they are suitably qualified to undertake instructions. The Authority considers that it is in the legitimate interests of clients to have court documents drafted by a qualified legal practitioner.

 

This duty exists notwithstanding client instructions to the contrary. Insistence by a client is not adequate justification for an agent undertaking work that they are not qualified for.”

 

Knowledge of Migration Law

Most of the sanctions include a lack of the basic knowledge of the migration law as a reason for the decision. For example, in one case an agent was not aware of the English language requirements for 485 visa while in another case an agent lodged a RRV with ‘no prospects of success’ as the applicants did not meet any of the criteria. The writer highly recommends that agents print out the relevant Schedule 1 and Schedule 2 criteria for a visa to ensure that their clients satisfy the requirements to apply and later be granted the visa prior to lodging an application.

 

[1] My professional criticism of the form of the toolkit is that it is not easily navigable, it would have been better done in a manoeuvrable form of PDF.  Not being able to easily access footnotes is frankly annoying.  Basic software nowadays allows a user to move back and forwards from text to footnotes. There is no software excuse for not having the footnotes at the bottom of the page where the footnote occurs.

[2] Sir Owen Dixon in The Hon Sir Gerard Brennan AC KBE, “Ethics and the Advocate”, Bar Association of Queensland, Continuing Legal Education Lectures, 1992.

[3] The Hon Sir Gerard Brennan AC KBE, “Ethics and the Advocate”, Bar Association of Queensland, Continuing Legal Education Lectures, 1992.

 

[4] The ‘Code of Conduct’ being Schedule 2 to the Migration Agents Regulations 1998 as enacted by Reg 8.  The Code’s force comes from s 314 of the Migration Act 1958 which reads:
Section 314      Code of conduct for migration agents

314      (1)      The regulations may prescribe a Code of Conduct for migration agents.

(2)      A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

 

 

 

[5] (1909) 9 CLR 655 at 681

[6] ‘Ethics and Conflict of Interest and Duties’ – a paper written in April 2006 by Virginia P Shirvington BA, LLB, Solicitor, Senior Ethics Solicitor, Law Society of NSW

 

[7] National Accreditation Authority for Translators and Interpreters Ltd, www.naati.com.au

[8] Hanna v MARA [1999] FCA 1657; (1999) 94 FCR 358

[9] See Migration Agents Amendment Regulations 2006 (No 2), Schedule 1 Item [22], with effect from 1 October 2006.

[10] Per Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713.

[11] The High Court normally sits a 5 member bench so the forming of a 7 member bench means the decision is important and the fact there was a single set of reasons unanimously makes this decision unassailable in the near future.

[12] [1956] 1 QB 702 at 712-713

[13] Briginshaw  v Briginshaw  [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938)

[14] See Migration Amendment Regulations 2006 (No 5), Schedule 2.

[15] See Migration Agents Amendment Regulations 2006 (No 2), Schedule 1 Item [9], with effect from 1 October 2006.

[16] See Migration Agents Amendment Regulations 2006 (No 2), Schedule 1 Item [10], with effect from 1 October 2006.

[17] See Migration Agents Amendment Regulations 2006 (No 2), Schedule 1 Item [16], with effect from 1 October 2006.

[18] Shi v MARA [2005] AATA 904 (6 April 2005)

[19] The word ‘instruct’ is a legal term used by lawyers to describe the information conveyed by the client to the lawyer.  It can also mean ‘authorised to say on behalf of’.  So a lawyer often says to a court – ‘I am instructed to say the following’, which means that my client has told me to say the following to the court.

[20] See Migration Agents Amendment Regulations 2006 (No 2), Schedule 1 Item [17], with effect from 1 October 2006.

[21] But see the discussion later in the Business Management paper on the High Court case Breen v Williams – the question is what exactly is it that belongs to the client, it is clearly not the whole file.

[22] See section 57 of the Act

[23] defined in section 5 of the Act

[24] S. 338(3A) is the decision not to revoke a student visa cancellation under s. 137L of the Migration Act

[25] Ss. 379A(4) & 379C(4) are for the MRT, ss 441A & 441C apply in exactly the same way to the RRT

[26] Woods (No 1) and Migration Agents Registration Authority [2004] AATA 457

Barbara DavidsonRelations with other agents