Make your own free website on Tripod.com

"MIGRATION AGENT CODE OF CONDUCT"

PART 1: INTRODUCTION

1.1
The Code is intended to regulate the conduct of migration agents.
1.2
The Migration Agents Registration Authority (the Authority) is responsible for administering the Code.
1.3
A person who wants to operate as a migration agent must register with the Authority.
1.4
The Code applies to an individual who is listed in the Register of Migration Agents kept by the Authority under section 287 of the Migration Act 1958 (the Migration Act).
1.5
To ensure compliance with the Code, the Authority may impose an administrative sanction if a breach of the Code is found to have occurred.
1.6
An administrative sanction may range from a warning through to suspension of registration or the ultimate sanction of cancellation of registration.
1.7
Accordingly, the Code does not impose criminal sanctions.
1.8
However, there are a number of offences under the Migration Act and the Migration Regulations 1994 (the Migration Regulations) that also deal with the kind of activity covered by the Code. These activities include misleading statements and advertising, practising when unregistered and misrepresenting a matter. Provisions of the Crimes Act 1914 and the Trade Practices Act 1975 may also apply to these activities.
1.9
The Code is not intended to displace any duty or liability that a migration agent may have under the common law, or the statute law of the Commonwealth, a State or a Territory,in relation to a matter covered by the Code. The provisions of the Code should be read in the light of this principle.
1.10

The aims of the Code are:

(a) To establish a proper standard for the conduct of business as a migration agent;

(b) To set out the minimum attributes and abilities that a person must demonstrate to perform as a migration agent under the Code, including:

(i) being of good character;
(ii) knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;
(iii) completing continuing professional development as required by the Migration Agents Regulations 1998;
(iv) being able to perform diligently and honestly;
(v) being able and willing to deal fairly with clients;
(vi) having enough knowledge of business procedure to conduct business as a migration agent, including record keeping and file management; (vii) properly managing and maintaining client records;

(c) to set out the duties of a migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;

(d) to set out requirements for relations between agents;

(e) to establish procedures for setting and charging fees by migration agents;

(f) to establish a standard for a prudent system of office administration;

(g) to require a migration agent to be accountable to the client;

(h) to help resolve disputes between a migration agent and a client.

1.11
The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible migration agent.
1.12 However, the Code imposes on a migration agent the overriding duty to act at all times in the lawful interests of the agentıs client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.

1.13
If a migration agent has a contract in force with a client that complies with this Code, but the Code is amended in a way that relates to the content of the contract: (a) the agent is not in breach of this Code solely because the contract does not comply with the amended Code; but (b) the agent must do everything practicable to vary the contract to ensure that it complies with the amended Code.

PART 2: STANDARDS OF PROFESSIONAL CONDUCT

2.1

A migration agent must always:

(a) act in accordance with the law and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.

2.2

If a migration agent:

(a) gives advice of a non-migration nature to a client in the course of giving immigration assistance; and
(b) could receive a financial benefit because of the advice; the agent must tell the client in writing, at the time the advice is requested or given, that the agent may receive a financial benefit.

2.3
A migration agentıs professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
2.3A A migration agent's professionalism should be reflected in the making of adequate arrangements to avoid financial loss to a client. The Authority recommends the holding of adequate professional indemnity insurance as a suitable arrangement.
2.4
A migration agent must have due regard to a clientıs dependence on the agentıs knowledge and experience.
2.5

A migration agent must take appropriate steps to maintain and improve his or her knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and keep that knowledge up to date, including:

(a) maintaining a library containing the latest version of the Migration Act, Migration Regulations and other legislation relating to migration procedure, and the Procedures Advice Manual;
(b) undergoing a written or oral examination, or both, when appropriate. Note An agent must satisfactorily complete the requirements prescribed by the Migration Agents Regulations 1998 for continuing professionaldevelopment.

2.6
To the extent that a migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she should be frank and candid about the prospects of success when assessing a clientıs request for assistance in preparing a case or making an application under the Migration Act or Migration Regulations.
2.7
An agent who is asked by a client to give his or her opinion about the probability of a successful outcome for the clientıs application should not hold out unsubstantiated or unjustified prospects of success when advising clients on applications under the Migration Act or Migration Regulations.
2.8

A migration agent must:

(a) within a reasonable time after agreeing to represent a client, confirm the clientıs instructions in writing; and
(b) act in accordance with the clientıs instructions; and
(c) keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d) within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the clientıs case or application.

2.9
2.9 While a migration agent cannot be responsible for misinformation provided by a client, an agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
2.10

A migration agent must not engage in false or misleading advertising, including advertising in relation to:

(a) the agentıs registration as a migration agent; or
(b) the implications of Government policy for the successful outcome of an application under the Migration Act or Migration Regulations; or
(c) guaranteeing the success of an application.

2.11
A migration agent must, when advertising, include in the advertisement the words Registered Migration Agent Number, followed by the agentıs individual registration number.
2.12

A migration agent must not, when advertising, imply the existence of a relationship with the Department of Immigration and Multicultural Affairs (the Department) or the Authority, for example by using terms such as:

(a) Australian Government registered; or
(b) Migration Agents Registration Authority registered; or
(c) DIMA registered.

2.13
A migration agent may indicate that he or she is registered, and may describe what the registration process involves.
2.14
However, a migration agent must not portray registration as involving a special or privileged relationship with the Minister, officers of the Department or the Authority, for example to obtain priority processing, or to imply that the agent undertakes part or full processing for the Department.
2.14A A migration agent must not represent that he or she can procure a particular decision for a client under the Migration Act or the Migration Regulations.
2.15

A migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, an agent must not engage in any of the following:

(a) undue pressure;
(b) physical threats;
(c) manipulation of cultural or ethnic anxieties;
(d) threats to family members in Australia or overseas;
(e) untruthful claims of Departmental sanctions;
(f) discrimination on the grounds of religion, nationality, race, ethnicity, politics or gender.

2.16
A migration agent with operations overseas may indicate that he or she is registered in Australia, but should not create an impression that registration involves accreditation by the Commonwealth Government for work overseas for the Commonwealth or for a client.
2.17

If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application has no hope of success) the agent:

(a) must not encourage the client to lodge the application; and
(b) must advise the client that, in the agentıs opinion, the application is vexatious or grossly unfounded; and
(c) if the client still wishes to lodge the application - must obtain written acknowledgement from the client of the advice given under paragraph (b).

2.18
A migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a personıs visa ceases to be in effect.
2.19
Subject to a clientıs instructions, a migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria. For example, an agent should avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.
2.20

A migration agent must:

(a) find out the correct amount of any visa application charge and all other fees or charges required to be paid for a clientıs visa application under the Migration Act or the Migration Regulations; and
(b) tell the client the amount of each fee and charge; and
(c) if the agent is to pay an amount for the client - tell the client the date by which the amount must be given to the agent so that the interests of the client are not prejudiced; and
(d) give the client notice of each amount paid by the agent for the client.

2.21
A migration agent should not submit an application under the Migration Act or Migration Regulations without the specified accompanying documentation. For example, in a marriage case, threshold documentation would include a marriage certificate and evidence that the sponsor is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, without which assessment of the case could not proceed (unless the agent has a reasonable excuse or the client has requested the agent to act despite incomplete documentation).
2.22

If a migration agent:

(a) has been registered:

(i) on a non-commercial, or non-profit, basis; or
(ii) as a member of, or a person associated with, an organisation that operates on a non-commercial, or non-profit, basis; but

(b) starts to act:

(i) on a commercial, or for-profit, basis; or
(ii) as a member of, or a person associated with, an organisation that operates on a commercial, or for-profit, basis - the agent must tell the Authority about the change as part of the agent's next registration application.

2.23
A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.
2.24
This Code is a responsive document that will change from time to time to meet the needs of clients and to ensure the delivery of relevant, up to date advice.
Note:
An agent must satisfactorily complete the requirements prescribed by the Migration Agents Regulations (1998) for continuing professional development.

PART 3: OBLIGATIONS TO CLIENTS

3.1
A migration agent has a duty to preserve the confidentiality of his or her clients.
3.2 A migration agent must not disclose, or allow to be disclosed, confidential information about a client or a clientıs
business without the clientıs written consent, unless required by law.
3.3
A migration agent must inform clients that they are entitled to receive copies of the application under the Migration Act or Migration Regulations and any related documents if they want copies. The agent may charge a reasonable amount for any copies provided.
3.4
A migration agent must have an address and telephone number where the agent can be contacted during normal business hours.
3.5

If the agent changes his or her address, telephone number or any other details that are recorded on the Register of Migration Agents, the agent must give notice to the Department, the Authority, any review authority and all current clients of the agent:

(a) in advance; or
(b) not later than seven days after the change or changes if advance notice would be unreasonable in the circumstances.

3.6
A migration agent must ensure that clients have access to an interpreter if necessary.

PART 4: RELATIONS BETWEEN AGENTS

4.1
Before accepting immigration work, a 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 should seek the appropriate advice or assistance, or refer the matter to another migration agent.
4.2
A referral may be made, for example, if the agent is asked for advice on matters for which he or she does not regularly provide immigration assistance.
4.3
A migration agent must not encourage another agentıs client to use the first agentıs services, for example by denigrating other agents or offering services that the first agent cannot, or does not intend to, provide.
4.4
A migration agent must not take over work from another agent unless he or she receives from the client a copy of written notice by the client to the other agent that the other agentıs services are no longer needed.
4.5
A migration agent must act with fairness, honesty and courtesy when dealing with other agents.
4.6
A migration agent who gives a written undertaking to another agent must make sure the undertaking is performed within a reasonable time, if possible.

PART 5: FEES & CHARGES

5.1
There is no statutory scale of fees. However, a migration agent is expected to set and charge a fee that is reasonable in the circumstances of the case.
5.2

A migration agent must:

(a) before starting work for a client, give the client:

(i) an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
(ii) an estimate of the time likely to be taken in performing a service; and

(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and

(c) give the client written confirmation of the terms of the service to be rendered; and

(d) 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.

5.3

A migration agent:

(a) should not carry out work in a manner that unnecessarily increases the cost to the client; and

(b) should, if outside expertise is to be engaged and the client agrees, fully inform the client of the likely extra cost; and

(c) should, especially if a solicitor or barrister, warn clients of possible delays and likely cost involved in pursuing a particular course of action before tribunals and in the courts, for example:

(i) any need to engage and pay expert witnesses;
(ii) the need to meet legal costs if a case were lost;
(iii) the need to pay Departmental fees and charges;
(iv) the need to pay translation and interpreter fees and charges.

5.4 A migration agent should advise clients of the method of payment of fees and charges, including Departmental fees and charges.

5.5

A migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:

(a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services; and

(b) a statement of services must set out:

(i) particulars of each service performed; and
(ii) the charge made in respect of each such service; and

(c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:

(i) made the payment to the agent for giving immigration assistance; and
(ii) did not receive a statement of services before making the payment; and
(iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.

PART 5: FEES & CHARGES

5.1
There is no statutory scale of fees. However, a migration agent is expected to set and charge a fee that is reasonable in the circumstances of the case.
5.2

A migration agent must:

(a) before starting work for a client, give the client:

(i) an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
(ii) an estimate of the time likely to be taken in performing a service; and

(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and

(c) give the client written confirmation of the terms of the service to be rendered; and

(d) 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.

5.3

A migration agent:

(a) should not carry out work in a manner that unnecessarily increases the cost to the client; and

(b) should, if outside expertise is to be engaged and the client agrees, fully inform the client of the likely extra cost; and

(c) should, especially if a solicitor or barrister, warn clients of possible delays and likely cost involved in pursuing a particular course of action before tribunals and in the courts, for example:

(i) any need to engage and pay expert witnesses;
(ii) the need to meet legal costs if a case were lost;
(iii) the need to pay Departmental fees and charges;
(iv) the need to pay translation and interpreter fees and charges.

5.4 A migration agent should advise clients of the method of payment of fees and charges, including Departmental fees and charges.

5.5

A migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:

(a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services; and

(b) a statement of services must set out:

(i) particulars of each service performed; and
(ii) the charge made in respect of each such service; and

(c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:

(i) made the payment to the agent for giving immigration assistance; and
(ii) did not receive a statement of services before making the payment; and
(iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.

PART 5: FEES & CHARGES

5.1
There is no statutory scale of fees. However, a migration agent is expected to set and charge a fee that is reasonable in the circumstances of the case.
5.2

A migration agent must:

(a) before starting work for a client, give the client:

(i) an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
(ii) an estimate of the time likely to be taken in performing a service; and

(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and

(c) give the client written confirmation of the terms of the service to be rendered; and

(d) 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.

5.3

A migration agent:

(a) should not carry out work in a manner that unnecessarily increases the cost to the client; and

(b) should, if outside expertise is to be engaged and the client agrees, fully inform the client of the likely extra cost; and

(c) should, especially if a solicitor or barrister, warn clients of possible delays and likely cost involved in pursuing a particular course of action before tribunals and in the courts, for example:

(i) any need to engage and pay expert witnesses;
(ii) the need to meet legal costs if a case were lost;
(iii) the need to pay Departmental fees and charges;
(iv) the need to pay translation and interpreter fees and charges.

5.4 A migration agent should advise clients of the method of payment of fees and charges, including Departmental fees and charges.

5.5

A migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:

(a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services; and

(b) a statement of services must set out:

(i) particulars of each service performed; and
(ii) the charge made in respect of each such service; and

(c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:

(i) made the payment to the agent for giving immigration assistance; and
(ii) did not receive a statement of services before making the payment; and
(iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.

PART 5: FEES & CHARGES

5.1
There is no statutory scale of fees. However, a migration agent is expected to set and charge a fee that is reasonable in the circumstances of the case.
5.2

A migration agent must:

(a) before starting work for a client, give the client:

(i) an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
(ii) an estimate of the time likely to be taken in performing a service; and

(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and

(c) give the client written confirmation of the terms of the service to be rendered; and

(d) 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.

5.3

A migration agent:

(a) should not carry out work in a manner that unnecessarily increases the cost to the client; and

(b) should, if outside expertise is to be engaged and the client agrees, fully inform the client of the likely extra cost; and

(c) should, especially if a solicitor or barrister, warn clients of possible delays and likely cost involved in pursuing a particular course of action before tribunals and in the courts, for example:

(i) any need to engage and pay expert witnesses;
(ii) the need to meet legal costs if a case were lost;
(iii) the need to pay Departmental fees and charges;
(iv) the need to pay translation and interpreter fees and charges.

5.4 A migration agent should advise clients of the method of payment of fees and charges, including Departmental fees and charges.

5.5

A migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:

(a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services; and

(b) a statement of services must set out:

(i) particulars of each service performed; and
(ii) the charge made in respect of each such service; and

(c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:

(i) made the payment to the agent for giving immigration assistance; and
(ii) did not receive a statement of services before making the payment; and
(iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.