Application of the Migration Act: Applied Immigration Law Task

This study analyzes the application of the Migration Act in a case scenario involving a migration agent and his client. It discusses the relevant laws and regulations, and provides an application of the rules to the case. The study concludes with a discussion of what the agent should have done to comply with the regulations of the code of conduct.

Applied Immigration Law Task: Application of the Migration Act
Student’s Name
Institutional Affiliation
Table of Contents
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Contents
Table of Contents.............................................................................................................................2
Introduction......................................................................................................................................3
Facts of the Case..............................................................................................................................3
Issues...........................................................................................................................................3
Law/Rules or Regulations Applicable.............................................................................................4
Application of the Rules..................................................................................................................5
Conclusion.......................................................................................................................................6
What Charlie should have done to comply with the regulations of the code of conduct................7
Bibliography....................................................................................................................................8
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Introduction
The Migration Act of Australia1 has different applications for various scenarios with regards to
the entry, presence, departure, and deportation of foreigners in Australia. This study will take an
organized approach in responding to the questions asked. The format adopted will be; first, an
outline of the important facts of the case with the issues arising from them. This will be followed
by a discussion of the law and various regulations relating to the issues. Third, will be an
application of the rules and law to the case scenario. Finally, there will be a conclusion providing
a response to the questions posed.
Facts of the Case
A migration agent has a client from India who has an Australian husband and who resides in
Australia herself. The lady recently obtained a Permanent Invention Order (“PIO”) against the
husband, their relationship having deteriorated. The husband believes that this lady obtained the
order so as to get permanent residence in the country, so he has allegedly asked the agent to
delay the PIO. The lady has been very demanding of the agent in the process of the application
of the document, causing the agent a lot of stress. The agent was so concerned that at the
beginning of this relationship with the lady he collected a fee – 3,000 dollars – and applied for a
partner and put it up with the Department of Home affairs.
Issues
 Did the agent act in contradiction of the Code of Conduct?
 If so, what should he have done in order to act as expected in the code?
1 Migration Act 1958 (Cth)
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Law/Rules or Regulations Applicable
Before the 1990s the activity of migration agents were not regulated by Australian law.2 This has
come to change, however, with various developments culminating into the establishment of the
Code of Conduct for Migration Agents in Australia.3 According to the Code, an agent is not
supposed to ‘…disclose, or allow to be disclosed, confidential information about a client…unless
required by law.’4 Part 2 requires an agent to perform his work not only in accordance with the
law but also in the best legitimate interest of the client.5 Furthermore, he/she is required to deal
with the client “competently, diligently and fairly.”6 Section part 2.1 B requires the agent to
inform his/her client if there is a conflict of interests regarding his obligation to the client. Part
2.15 requires an agent never to act in discrimination against a certain gender, race, religion or
nationality. In part 2.18 an agent is required that; upon an application by the client under the
Migration Act or the Migration Regulations7, he ensures to act in a manner where he keeps time
provided that the client has provided all necessary documents. It is further instructed that the
agent handles client documents in a way that does not prejudice the possibility of approval. The
agent is also bound by the Code to provide adequate information to the Department of Home
Affairs or any other concerned authority, in accordance with the client’s instructions.
Concerning matters of fees and finances, part 5.1 notes that the Migration does not provide a
scale of fees that a migration agent should charge. However, the fees charged must be
2 Rulf Buckley et al, ‘19 Green Change: Inland Amenity Migration in Australia’ (2006) The Amenity Migrants:
Seeking and Sustaining Mountains and their Cultures 278.
3 Parliament of Australia, Education and Migration Agents (2010)
<https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_Employment_and_Workspace_Re
lations/Completed_inquiries/2008-10/international_students/report/c05>
4 Code of Conduct for Migration Agents in Australia 2017 s3.2.
5 Michiel Baas, Imagined Mobility: Migration and Transnationalism among Indian Students in Australia, (Anthem
Press 2012).
6 Michael Barnett, ‘Mind Your Language-Interpreters in Australian Immigration Proceedings’ (2006) 10 UW Sydney
L. Review109.
7 Migration Agent Regulations 1998.
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‘reasonable’. According to Part 7.1 the migration agent has to put up two separate accounts for
the purpose of a client; one for his own “operating expenses and another for payments made to
him as agent fees.
Application of the Rules
Charlie, has an obligation as a registered migration agent, to uphold the privacy and
confidentiality of any processes and applications that he pursues for his client. Apparently, in this
case, Jeffrey is aware of Jasmine's application. That if proven to be true is a violation of part 3.2.
He as an agent is only supposed to share the information when the law allows which is no case
here.8
Jasmine is protected against any form of discrimination according to part 2 of the Code,
including discrimination based on nationality. There is a possibility that Charlie disregards the
professional relationship to listen to Jeffrey because Jasmine is not Australian. It could also be
discrimination based on race, she is Asian.
Part 2 of the code demands of Charlie to perform his professional duty in the best interest of
Jasmine. He is in contract with the latter to push for her interests. Him allowing to be
manipulated by Jeffrey amounts into a violation of this section. With regards to this section,
there is apparently a conflict of interests as well. Charlie wants to do what pleases Jeffrey while
Jasmine is interested in a visa for herself. If Charlie’s relationship with the husband is so strong
then he has an obligation under this code to inform his client of the conflict of interest so that he
ceases to represent her.
8 Elsa Underhill et al, ‘Migration Intermediaries and Codes of Conduct: Temporary Migrant Workers in Australian
Horticulture’ (2018) 153(3) Journal of Business Ethics 675.
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In part 2.18 he is required to act promptly. Jasmine believes that Charlie is purposefully delaying
the submission of evidence of the PIO with the Department. If he is indeed acting in this way
then he violates this provision with regards to the time factor, and it is an act which prejudices
the possibility of approval of the application.
Concerning finances, Charlie charges 3000 dollars which he deposits in the office account. He is,
however, supposed to create two accounts for different purposes as stipulated in the Code.
Conclusion
In conclusion, Charlie is evidently in breach of the Code of Conduct for Migration agents. He
violates multiple parts of the code if at all the claims by his client Jasmine is true.
What Charlie should have done to comply with the regulations of the code of conduct
First, upon getting into a contract to be an agent for Jasmine, he should have opened two
accounts for the process; an operating account and another for his charges. He should have then
kept the information of the application process secret from his client's husband and anybody else
except the authorities. If this could not be possible for him, he should then have informed
Jasmine of the situation and resigned from being her agent. Finally, he should have provided
evidence of the PIO in time so that Jasmine's application for a visa could go through.
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Bibliography
A. Books/Journal Articles/Electronic Sources
Baas M, Imagined Mobility: Migration and Transnationalism among Indian Students in
Australia, (Anthem Press 2012).
Buckley R, et al, ‘19 Green Change: Inland Amenity Migration in Australia’ (2006) The Amenity
Migrants: Seeking and Sustaining Mountains and their Cultures 278
Underhill E et al, ‘Migration Intermediaries and Codes of Conduct: Temporary Migrant Workers
in Australian Horticulture’ (2018) 153(3) Journal of Business Ethics 675
Barnett M, ‘Mind Your Language-Interpreters in Australian Immigration Proceedings’ (2006) 10
UW Sydney L. Review109.
Parliament of Australia, Education and Migration Agents (2010)
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_Employment_a
nd_Workspace_Relations/Completed_inquiries/2008-10/international_students/report/c05
B. Legislation
The Migration Act 1958 (Cth)
The Migration Agent Regulations 1998.
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