Migration Law Assignment: Advice Letter on Australian Migration Law

This assignment is an advice letter addressing various aspects of Australian migration law. It outlines the ethical, accounting, and procedural requirements for migration agents providing visa services, emphasizing the importance of adhering to the Migration Act 1958 and the Code of Conduct. The letter details the responsibilities of migration agents, including fee structures, client account management, and providing clear statements of services. It also covers the requirements for the temporary work (skilled) visa subclass 457, including eligibility, sponsorship, required documents, and visa conditions. The assignment further discusses the responsibilities of visa applicants, highlighting the need for accurate information and the consequences of providing false or misleading details. The letter references relevant legislation and case law to support its analysis, providing a comprehensive overview of the legal framework governing migration in Australia.

Running head: MIGRATION LAW
Migration Law
Name of the Student
Name of the University
Author note

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Question 1:
To
Mr. Jeffrey Jacob
Address:
Subject: Migration Advice letter
Dear Mr. Jacob,
The aim of this letter is to inform you about the provisions regarding the ethics,
accounting and procedures that a migration agent needs to follow, in order to provide visa
services to the clients in Australia. The code of conduct, as established through the Schedule 2 of
Migration Regulation, 1998 as well as Migration Act, 1958 must form the basis of actions of the
Migration agents and it's their duty to maintain it.
According to section 314, MA, it's the duty of every migration agent during the
performance of their professional activities, to conform to the code of conduct imposed upon
them.1
In accordance with the code of conduct for migration agents in Australia, the agents set
their fees as per the situation. However, the fees charged by him for his services must be
reasonable and fair. The fees may be based upon the type of visa application, time taken to
1 Migration Act 1958

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prepare such application, level of service needed, extra help in case of complex circumstances.
The experience and qualification of the agent may also be considered.
Section 313, MA, states that until and unless a registered migration agent provides a
statement of services, consisting of the details of services to be provided by the agent and the
costs that he will incur while providing such services, no client is liable to pay any fees to the
Migration agent.
Therefore, in this case, Wood Engineering must be provided with the details of all the
services required for the successful application of work skilled temporary visa subclass 457.
Wood Engineering would have the right to recover the amount, if any, paid by them in relation to
Visa Services, in case they are not provided with the search statement.
The holder can bring their families to Australia for educational or work purposes and can
let them travel in and out of Australia as many times as they want, as long as the subclass 457
visa is active. Before the visa application is made, such application needs to be sponsored by an
approved employer and he must nominate the applicant to a vacant position in the business.
The Migration agent has the duty to provide the MARA, i.e., Migration Agent
Registration Authority with data annually for the level of fees charged by them. The fees for
temporary work skilled subclass 457 vary from $1800-5000, generally. The client must be
provided by the agent, in writing, about the fees charged in case of an initial consultation fees.
In case the clients are charged before completion of the service, a bank account known as
the "clients account" is to be created, completely isolated from their personal bank account or
business accounts. The money in such account can not be used by agent except if they need to
use it for payment regarding some services in relation to the visa application. Only after

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completion of his services, the agent can take money out of such account for payment of his
professional fees.
Another duty of the Migration officer under the code, is to give the clients, statement in
writing, regarding the fees charged for the services they provide, which must be inclusive of
services to be performed by agent, and of fees, such as professional fees either by service or by
the hour, in addition to other disbursements such as visa application charges. The terms of
agreement for services and fees are to be accepted by client in writing and the Migration agent
has to ensure the same.
Part 3 of the Migration Act, 1958 deals with the immigration assistance provided by the
Migration agent. According to Section 312A, a migration agent must notify the department of
immigration about any immigration assistance to be provided to a visa applicant after an
agreement of service with them.
The code of conduct for migration agents further provides that the activities of the
registered migration agent must not only be directed towards the best interest of the client but
also according to the existing legal provisions. The clients must be dealt with competence and
diligence, by the agents. In case of a conflict of interests or a suspected conflict of interests, the
client must not be accepted by the agent or notified about such conflict. It’s the duty of every
registered migration agent to notify the department about the termination of services provided to
the clients, within 14 days of such termination.2 The Regulation 6B of Migration Regulations
makes it compulsory for every agent to hold a professional indemnity insurance to protect the
clients against unnecessary financial losses.3 The clients must also be notified of the progress of
2 Migration Regulations 1998
3 Austlii (2017) <http://www.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html>.

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the visa application, by the Migration Agents. In this case, it is the duty of Jeffrey to notify the
department of serving Wood Engineering through form 956. Jeffrey also has the duty of
notifying the clients about their rights and providing them with a copy of the code of conduct.
In order to obtain a work skilled visa subclass 457, an approved business in Australia
needs to provide sponsorship to the visa applicant. The applicant must have the skills needed to
fill the position that the sponsor nominates. The subclass 457 visa is granted for 4 years, if the
applicant falls under the scope of specific skills. As Josephine is an engineer, she is eligible to
get the visa. A person in or out of Australia may be eligible for the application of the visa.
A few documents must be submitted by the applicant including the license registration,
qualification certificate, reference of the previous employer, educational qualification, skill
assessment conducted by a registered organization and health certificates.
Holders of subclass visa 457 must follow visa conditions 8501, 8107. They briefly state
that no other work than that provided to holders by the sponsored employer must be done by the
holder. All rules and regulations provided by the licensing authorities in Australia must be
followed by the holder. The holder must not stay in Australia beyond the time of expiration of
the visa4.
In order to lodge the temporary work subclass 457 visa applications, the sponsored
worker form 1066 needs to be completed online. The basic charges for the application of the visa
subclass 457 are $1080. The cost of health assessment, police certificates or any test or
4 Temporary Work (Skilled) Visa (Subclass 457) (2017) Border.gov.au <https://www.border.gov.au/Trav/Visa-
1/457->.

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certificate required for the purpose of the visa are charged in addition to the basic charge
mentioned.
In this case, it's the duty of Wood Engineering to complete the employee sponsored work
form, that is, form 1196. Common business information for instance, Australian registered body
number, Australian business number and documents related to Australian security and
investment Commission need to be furnished for the completion of this form.
Yours sincerely

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Question 2:
It's the duty of the visa applicants to ensure that the information they furnish to the
Migration agents is true and no misrepresentation of information has been made. It has been
provided by Crock, Mary and Berg (2011) that the complete honesty of the person making the
visa application, in relation to the documents and information they provide to the Migration
agent for submission to the department of immigration, is mandatory5.
Section 101, of the MA Act provides that every visa applicant has the duty of filling up
the visa application form without providing any false or incorrect information to be submitted to
the department of immigration and border protection.
Section 109 states that any false or incorrect information of any sort by the visa applicant
in this regard may result in the cancellation of the visa application.
Section 48 states that if any such submission of false or incorrect information has been
done, because of which the visa application has been cancelled then the visa applicant will not be
allowed to apply again for the visa except in cases of very limited types of visa
The fact that the applicant had nothing to do with the providing of false or incorrect
information to the department cannot be used to excuse them from the liability, under this
section.6 That the total process of making the application was allocated to the Migration agent
cannot be claimed by them.
5 Crock, Mary, and L. A. Berg. Immigration, refugees and forced migration: law, policy and practice in Australia.
Federation Press, 2011.
6 Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford
University Press, 2014.

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In Trivedi vs. Minister for Immigration and Border7, it had been held by the judges
that even if the fact that incorrect information regarding the application has been provided was
unknown to the visa applicant, they may be held liable for providing wrong information.
According to the code of conduct for registered migration agent, he has to act towards the
best interest of his clients. Moreover, his actions need to be on the basis of existing legal
provisions towards a visa application.
Regulation 2.9 of the code states that a statement supporting a visa application should not
be provided by the Migration agent under these regulations, as also any encouragement towards
making a visa application to the clients, which they know or believe to be misleading or
incorrect. The regulation provides that the Migration agent directly or indirectly must not
mislead the department in relation to the visa application by his actions, during the process of
communication and providing information
In the circumstances provided, Josephine has informed Jacob that wages in accordance
with the provisions of that which has been submitted to the department of immigration is not
being provided by the company. Jacob confirms this fact, stated by Josephine, with the company
Wood Engineering.
In such a case, it's the duty of Jacob acting in the best interest of Wood Engineering, to
inform them, that the visa application may be cancelled because they furnished incorrect
information to the department of Immigration. If the suggestion made by Jacob is not accepted
by the company, it's his duty to inform the department of the incorrect statement that has been
made in relation to the application.
7 2014 FCAFC 42 (4 April 2014)

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Reference List
Austlii (2017) <http://www.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html>.
Crock, Mary, and L. A. Berg. Immigration, refugees and forced migration: law, policy and
practice in Australia. Federation Press, 2011.
Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global
perspective. Stanford University Press, 2014.
Migration Act 1958
Migration Regulations 1998
Temporary Work (Skilled) Visa (Subclass 457) (2017) Border.gov.au
<https://www.border.gov.au/Trav/Visa-1/457->.
Trivedi v minister for immigration and border protection2014 FCAFC 42 (4 April 2014)