Options for Ethical Decision Making in Australian Migration Law

This article discusses the ethical issues faced by migration agents in Australian migration law cases and explores the available options for making ethical decisions. It provides insights into the Code of Conduct and highlights the importance of protecting clients' interests.

Running head: AUSTRALIAN MIGRATION LAW
AUSTRALIAN MIGRATION LAW
Name of the Student:
Name of the University:
Author Note:

1AUSTRALIAN MIGRATION LAW
1.
The ethical issue involved in the case is what measure shall be taken by the agent after
having conversation with the lady client that she was previously married and that it was not
known to her husband, the sponsor in the light of Migration Agents Regulations - Schedule 2
Code of conduct1. The client is seeking the advice of the migration agent to apply for a partner
visa.
The migration agent has been always competent, efficient as well as a professional in his
job. He always tries to abide by the rules and standards as per the profession of the migration
agent. Both the husband and wife are clients of the agent and thus he must be trues and honest to
both of them. As per Part 1.10 of the Australian Code of Conduct2 given for the migration agent,
an agent must deal with the clients in a fair, diligent and competent manner. The agent has an
obligation of acting for the clients’ legitimate interests as per part 1.123. The agent also possesses
the duty to maintain confidentiality of his clients as per part 3.14. But the main ethical issue is
what will be done by the agent if one client’s interest is in conflict with the interest of another
client as per Part 2.15 of the Code. Another major ethical issue in front of the agent is whose right
is to be protected finally at the cost of other client. The agent also has a duty to act in a
responsible manner while dealing with statements that are false, deceptive or misleading. As per
part 2.96 of Code of Conduct, the migration agent also has the duty of not encouraging the wife
to make any statement that he knows and believes to be false, inaccurate and misleading. If the
wife’s statement in relation to the visa application regarding her previous marriage is true, shall
the agent proceed with her case? Whatever be the decision of the migration agent, such decision
1 Migration Agents Regulations - Schedule 2 Code of conduct.
2 Code of conduct part 1.10.
3 Code of conduct part 1.12.
4 Code of conduct part 3.1.
5 Code of conduct part 2.1.
6 Code of conduct part 2.9.

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must be ethical and he should act as per the provisions enumerated in the Code of Conduct and
he can identify the options, such options are to be analyzed considering the consequences they
can have.
Few options are available to the Migration agent that are to be considered by using the
Ethics Toolkit.
The agent can inform the husband. Though this will protect the right to know of the
husband, but this on the other hand will breach the wife’s right of confidentiality. This amounts
to an ethical issue before the agent. In this case, the right to confidentiality of the wife is in
conflict with the husband’s right to be totally informed.
Another option available to the agent is to keep everything confidential and submit the
visa application form as decided. In such case, he will be helping the wife to provide statements
that he knows to be false. While the agent possesses a duty to his client, he also has another duty
to abide by the Code of Conduct and by the law.
Further, the agent must consider what will be happening to him personally if it was
discovered by the Immigration department that in spite of knowing that the statements were false
in the application will impose a negative impact on his reputation and it will affect his career as
the migration agent too. Further, the integrity of the partner visa will be also affected.
None of the options is safe. Whichever option he chooses, the agent will be required to
break a rule for following another.
But probably there lies a better option.

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It has been clearly stated by the Code of Conduct that the agent cannot act for any client
with whom the agent has conflicting interest as per part 2.1B (d)7 of the Code. As discussed
above, there lie many conflicts in this case. Hence, the best option available to the agent is to
withdraw from the case altogether and ceasing to act on their behalf. This action can be justified
from the point of view of law and ethics too. It is believed by the agent that this will be the best
way available to him considering the facts of the case.
Now, the action to be taken by the agent must be tested properly. Ethical decision does
consider feelings, personal opinions or religious beliefs. Hence the agent can begin by re-
considering the motives behind choosing one option instead of another. Now the question is
whether his motive is personal. The agent must concede that though his initial response was
motivated by his personal thoughts but later he realized that the situation is unfair and thus he
felt the need of seeking a balance. He is required to analyze whether it is proper to let her opinion
and belief to affect the case decision. But his view regarding the wife’s false statement is not
personal. Further if he continues with their visa application, it will be unethical.
At the end, he decided to withdraw himself from the case. He will be feeling confident as
he will be able to explain his decision to the client confidently that he has taken a right ethical
decision. However he can talk with the wife and convince her to reveal the truth to the husband
as well as while making visa application.
Answer 2:
7 Code of conduct part 2.1 B(d).

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The ethical question before the migration agent is whether to proceed with the new client
in response to the notice of intention to cancel his visa under section 501 (2) of the Migration
Act8.
The options available to the agent must be discussed by referring to the ethical toolkit9.
Though he considers being a responsible migration agent but he dealt with partner visas
occasionally. He can be an efficient and competent migration agent but this is all about student
visas as he mainly deals with student visas. On the other hand, his business to work properly, he
needs more clients. The client being anxious is ready to offer any amount of money to the agent.
Thus there lies a huge earning opportunity. Other option available to him is proceeding with the
case. He can take the case and start working on it. In order to work on it efficiently, he must
carry out some research work. But in case, he failed to do so, the client can lodge a complaint in
the MARA office10. Further if his actions are analyzed and any breach of duty is found, his
reputation will be at stake. He is sure that he can deal with the case efficiently after doing
thorough research and study. He can even look for a mentor who has a good experience dealing
this type of cases to seek help as per Part 4.111 of the Code. Such mentor must have enough
experience and knowledge in dealing with this type of cases.
Another option available to him is refusing the assignment and referring the client to
another agent with good experience in dealing with visa cancellation cases as per Part 4.1. But in
this case though the client will get better guidance, he on the other hand will lose a potential
customer and money prospective.
8 Migration Act 1958, s 501(2).
9 "Ethics Toolkit - Office Of The Migration Agents Registration Authority", Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/news-and-publications/publications/ethics-toolkit/>.
10 "Code Of Conduct - Office Of The Migration Agents Registration Authority", Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/code-of-conduct/>.
11 Code of conduct part 4.1.

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In this regard, the consequences must be analyzed. If the agent failed to take immediate
measures, his visa will be cancelled. It will have a serious result as the client will become an
unlawful citizen. Further this will have negative impact on his future visa options. Again, if the
agent can lodge the visa application within the scheduled time period but it got refused due to his
inefficiency to meet the visa conditions, the client will become angry on him. In that case, the
client can complain against him in MARA12.
He will further think upon the steps he is planning to take by asking questions critically.
Whether he is confident as well as comfortable to proceed with the case? The answer is no
obviously as he has no such experience dealing this type of cases. Again whether the agent will
be happy if he was at the place of the client? The answer is again no as the client will be looking
for an experienced agent. Whether he will be comfortable facing a senior Migration agent? It is
expected by the Immigration department that all the agents must be candid and frank with one
another while discussing and assessing any case. The department must consider that the agent
lacks the expertise dealing with this case. But in that case it will difficult for them to explain why
he took the task without having adequate experience and no mentor and no time as well as the
reply is to be lodged within the scheduled time else the client’s visa will be cancelled.
Further, if he proceeds with the case and the story if picked up by the media or
newspaper, his career as a migration agent will be ruined.
Considering all the discussion made above and referring to the Ethical deliberation
checklist13, the best option available to the agent is to refer the case to an experienced agent who
12 "Code Of Conduct - Office Of The Migration Agents Registration Authority", Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/code-of-conduct/>.
13 "Ethics Toolkit - Office Of The Migration Agents Registration Authority", Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/news-and-publications/publications/ethics-toolkit/>.

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has expertise in dealing with this type of cases as laid down in Part 4.1 of the code. This will
result into best possible outcome for the client. Further in that scenario, he will be acting in the
best interest of the client.
Answer 3:
The ethical issue before the migration agent is what options are available to the agent in
relation to the breach of duties by his office manager. Though he trusts his manager completely
and depends on him too but he has breached his duty. The first option available to him is to
inform the client that his information has been disclosed to another client. In such case, the client
can bring action against him for breach of duties enumerated in Part 3.1 of the Code. Second
option available is terminating the employee for his breach of duty given in Part 8.4 of the Code.
In that case he can again reveal other information he has to outsiders as then he was not under
any liability.
By testing the options available by the use of Ethical Deliberation Checklist14, the agent
tries to seek the grounds to support his decision.
The best option available to him is to disclose the clients whose information has been
revealed. In that way, he will remain true to his clients. But in that case, he can lodge a complaint
to the MARA office15 and if it is revealed then his reputation and future prospective will be at
stake. Further this will affect soliciting future clients.
Further if such revealed information does not include any offensive or serious type of
matter, then he can even proceed with the case without informing the client. But if such client
14 "Ethics Toolkit - Office Of The Migration Agents Registration Authority", Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/news-and-publications/publications/ethics-toolkit/>.
15 "Code Of Conduct - Office Of The Migration Agents Registration Authority", Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/code-of-conduct/>.

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came to know it from the other client, then he can again lodge a complaint to the MARA16 office
and if it is revealed then his reputation and future prospective will be at stake. Further this will
affect soliciting future clients.
Another option available is to terminate the officer. As he employed the office manager,
it his duty to make the officer to comply with the Code of Conduct as given in Part 8.3A17.
However since he had beached it, the agent can terminate him from his office. In that case, there
lies a problem that the officer can reveal all the information he possessed by virtue of his
position to others.
Further he can withdraw his association with both the clients by terminating relation with
them after disclosing them everything in details. In such way, he will be true to his both clients.
But this will not be helpful to the client whose information is revealed. The client to whom the
information is revealed can misuse it.
Thus considering the above tests, the best option available to the agent is to inform the
client about this and seek apology from him as per par 2.1B18. Further the employee can be
brought in interaction with the client and the former can seek apology from the client.
16 "Code Of Conduct - Office Of The Migration Agents Registration Authority", Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/code-of-conduct/>.
17 Code of conduct part 8.3A.
18 Code of conduct part 2.1B.

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References:
"Code Of Conduct - Office Of The Migration Agents Registration Authority", Mara.Gov.Au (Webpage,
2019) <https://www.mara.gov.au/becoming-an-agent/professional-standards-and-obligations/code-of-
conduct/>.
"Ethics Toolkit - Office Of The Migration Agents Registration Authority", Mara.Gov.Au (Webpage, 2019)
<https://www.mara.gov.au/news-and-publications/publications/ethics-toolkit/>
Migration Agents Regulations - Schedule 2 Code of conduct.
Migration Regulations 1994.
The Migration Act 1958 (Cth).