Migration Law: Breach of Code of Conduct by a Migration Agent

This article discusses the breach of code of conduct by a migration agent in relation to the provisions of the Migration Act 1958 and Migration Regulations 1998. It highlights the duty of a migration agent and the consequences of violating the code of conduct. The article analyzes a case study where a migration agent has breached various provisions of the code of conduct while assisting a client with a protection visa application. The violation may subject the agent to fines and cancellation of registration.

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

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Issue
It has been provided by part 2.1 of the code that a migration agent has the duty of
always comply with the law and act in the best legal interest of the person they are working
for.
Rule
The issue is also to identify the breach of any provisions of the Migrations Act 1958
with respect to the facts of the case.
The issue is to identify whether David have violated the provisions of the Code of
Conduct provided by Migration Regulations 1998.
The Migration regulations 1998 provide that all agents who have been listed as
registered Migration agents under s.287 of the Migration Act 1958 have to abide by the code
of conduct1. In case the code of conduct is breach administrative sanctions can be imposed on
the agent such as fines and cancellation of registration.
Under code 2.6 of the code of conduct it has been stated that to the degree the agent
has to consider objective criteria to launch an application via MA 1958 or MR 1994, they
must be candid and frank in relation to the chances of having a successful application when
they are assessing the request of the client for preparing a case or launching an application2.
Under part 2.3 of the code it has been provided that the professionalism of the agent
has to be reflected through a proper working knowledge of the Migration Regulations and
migration act and also with other laws in relation to migrations. They must also posses the
capacity of providing timely and accurate advice3. Under code 2.4 it has been given that it is
1 Migration Act 1958 (Cth) s 237
2 Code of Conduct, Migration Regulations 1998 (Cth) s 2.6
3 Code of Conduct, Migration Regulations 1998 (Cth) s 2.3

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the duty of the agent to provide consideration to the dependence which the clients have on his
or her knowledge and experience4. Under code 2.5 the agent is required to enhance and
maintain his or her knowledge in relation to the MA 1958, MR 1994 and other migration
Laws5.
Code 2.7 states that when an agent has been asked by the client to provide his or her
opinion with respect to the probability of success of the application, it is the duty of the agent
to provide the advice in writing within a reasonable time, or in a way that oral advice is same
as written advice and should not provide unjustified or unsubstantiated prospects of the
application being successful.
It is the duty of the agent under code 2.8 to keep the client informed about each stage
of the application process6. Under code 2.14A an agent is not allowed to portray before the
client that he would be able to procure a specific decision for the client with respect to the
MA 1958 or MR 19947.
It is the duty of the Migration agent under code 2.17 that if the application proposed
by the client under the MA 1958 or the MR 1944 is grossly unfounded or vexatious such as
having no hope of success, he should not encourage the client to make an application, advice
the client about the vexatious of the application and obtain acknowledgement form the client
that he has provided him with a contrary advice8. It is also the duty of the migration agent
under code 2.23 to uphold the integrity and reputation of the migration advice profession9.
Application
4 Code of Conduct, Migration Regulations 1998 (Cth) s 2.4
5 Code of Conduct, Migration Regulations 1998 (Cth) s 2.5
6 Code of Conduct, Migration Regulations 1998 (Cth) s 2.8
7 Code of Conduct, Migration Regulations 1998 (Cth) s 2.14A
8 Code of Conduct, Migration Regulations 1998 (Cth) s 2.17
9 Code of Conduct, Migration Regulations 1998 (Cth) s 2.23

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It has been provided with respect to the facts that Jack Tan is a citizen of China and is
in Australia on a student visa. The visa is to come to an end in 2018. This means that he
would have to leave Australia this year once the visa comes to an end. In this situation it has
been provided that he has approached David because his brother and father has been arrested
in china and he wants a protection visa so that he does not have to go back to China. David is
a migration agent but he does not have much expertise in relation to a protection visa, and he
had initially refused to provide assistance to John. However he subsequently agreed to assist
Jack with the protection visa application.
David has notified Jack that he would be provided with the protection visa. In doing
so he has breached the provisions of the code of conduct this is because according to code 2.6
to the degree the agent has to consider objective criteria to launch an application via MA
1958 or MR 1994, they must be candid and frank in relation to the chances of having a
successful application when they are assessing the request of the client for preparing a case or
launching an application. He has not made a frank disclosure to Jack that the chances of a
protection visa to be provided are very law in relation to the circumstances. Further It is the
duty of the Migration agent under code 2.17 that if the application proposed by the client
under the MA 1958 or the MR 1944 is grossly unfounded or vexatious such as having no
hope of success, he should not encourage the client to make an application, advice the client
about the vexatious of the application and obtain acknowledgement form the client that he
has provided him with a contrary advice. This also has not been done by David and thus he
has breached the code. Under code 2.14A an agent is not allowed to portray before the client
that he would be able to procure a specific decision for the client with respect to the MA 1958
or MR 1994. However David has portrayed to Jack that he would be provided with the visa
and thus have violated this code as well.

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It is the duty of the agent under code 2.8 to keep the client informed about each stage
of the application process. The facts of the case study do not depict any such situation where
David has done the same and therefore he has violated the code.
The code also provides via part 2.3 that professionalism of the agent has to be
reflected through a proper working knowledge of the Migration Regulations and migration
act and also with other laws in relation to migrations. They must also posses the capacity of
providing timely and accurate advice. However it is evident that David was not well versed
with the provisions of MR 1958 and MR 1994 with respect protection visa and he was also
not able to provide accurate advice to Jack. Under code 2.4 it has been given that it is the
duty of the agent to provide consideration to the dependence which the clients have on his or
her knowledge and experience. David was also aware that Jack is highly dependent on him
for the application and thus he should have disclosed all materials facts to him and by not
doing so have violated the code. Under code 2.5 the agent is required to enhance and
maintain his or her knowledge in relation to the MA 1958, MR 1994 and other migration
Laws. However David is only emphasizing on few areas of the legislation and not the overall
law and thus is in violation of the code. While providing inaccurate advice to Jack, David is
also violating code 2.23 as it is required to uphold the integrity and reputation of the
migration advice profession under the code.
Conclusion
In conclusion it can be stated that various provisions of the code of conduct provided
under the MR have been violated by David by assisting Jack in a way which is contrary to the
provisions of the code of conduct. The violation may subject him to fines and may also get
his registration cancelled.

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