Immigration Law Report: Australian Immigration Law and Visa Services

This report analyzes Australian immigration law, focusing on the responsibilities and ethical obligations of migration agents when providing visa services. It references the Migration Act 1958 and Migration Regulations 1998, outlining the code of conduct for migration agents, including the provision of service statements, fair fees, client account management, and the requirement for professional indemnity insurance. The report also discusses the visa application process, particularly for the temporary work (skilled) subclass 457 visa, detailing the requirements for applicants, employers, and the importance of providing truthful information. It emphasizes the consequences of providing false information and the agent's duty to act in the client's best interest while adhering to legal provisions. The report concludes by highlighting the importance of ethical conduct and adherence to regulations within the context of visa applications.

Running head: IMMIGRATION LAW
Immigration Law
Name of the Student
Name of the University
Author note

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IMMIGRATION LAW
Question 1
To
Mr Jeffrey Jacob
Address:
Subject: Migration Advice letter
Dear Mr Jacob,
The purpose of this letter is to provide you knowledge about the ethical, procedural
and accounting provisions which has to be adhered by a migration agent while providing Visa
services to the clients in Australia. It is the duty of the migration agents in Australia to base
their actions with respect to the provisions of the code of conduct established through
schedule 2 of the Migration Regulation 1998 along with the provisions of the Migration Act
1958.
Section 314 of the MA states that every migration agent has the duty to abide by the
code of conduct imposed upon them while performing their professional activities1.
As provided by Section 313 of the MA until and unless a statement of services is
provided by a registered migration agent which has details about all the services to be
provided to the client along with all the cost which would be incurred by the migration agent
while providing such services, no client is liable to pay any fees to the migration agent.
Therefore, in this case you must provide Wood Engineering with all the details about the
services which would be required for the successful application of work skilled temporary
visa subclass 457. In case search statement is not provided to Wood Engineering, they would
have the right to recover any amount paid by them in relation to the Visa services.
1 Migration Act 1958

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IMMIGRATION LAW
According to the code of conduct for migration agents in Australia the fees which is
charged by them for the services provided has to be reasonable and fair the fees is set by the
agent based on the situation. The fees may be based upon the type of visa application, time
taken to prepare the visa application, the level of service needed extra help in complex
circumstances and the qualification and experience of the agent.
It is the duty of migration agents to provide the Migration Agent Registration
Authority (MARA) with data every year for the level of fees charged by them. Normally the
fees for temporary work skilled subclass 457 visa varies from $1800 – 5000. In case of an
initial consultation fees the agent must provide the client in writing about the fees charged by
them. It is the duty of every agent under the code of conduct to provide the clients with the
written statement with respect to the fees charged by them for their services. The written
statement must include fees, such as professional fees which maybe either by service or by
the hour along with other disbursements such as the visa application charges. The migration
agent has to ensure that the agreement terms are accepted by the client in writing via the
agreement for services and fees. The agreement has to include the services which would be
performed by the agent along with the information discussed above.
In case the clients are charged before the service is completed a bank account known
as the “clients account” has to be created. This account is totally separate from their personal
bank account or business accounts. The money in the clients account cannot be used by the
agent until and unless they need to use it to pay for some services in relation to the visa
application. Only when the services have been completed can an agent take out money from
the clients account for professional fees.
Immigration assistance provided by the migration agent is dealt by part 3 of the
Migration Act 1958. As provided by section 312A a migration agent must notify the

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IMMIGRATION LAW
department of immigration about any immigration assistance to be provided to a visa
applicant after an agreement of service with them.
As provided by the code of conduct for migration agent the activities of the registered
migration agent must be directed towards the best interest of the client but it must be kept in
mind that the activities has to be in accordance with the existing legal provisions. The agents
must deal with the clients competently and diligently. Whenever there is a conflict of interest
or a suspected conflict of interest the migration agent must not accept the client or notify the
client about such conflict of interest. When the services provided to the clients are to be
terminated it is the duty of every registered migration agent to inform the department within
14 days of such termination2.
As provided by the Migration Regulations 1998 regulation 6B it is compulsory for
every migration agent to hold a professional indemnity insurance so that the clients can be
protected from any unnecessary financial losses3. Further it is the duty of every registered
migration agent to notify the clients in relation to the progress of visa application. In this case
it is the duty of Jeffrey to provide the department notification of serving Wood Engineering
through form 956. It is also the duty of Jeffrey to notify the clients about their rights and to
provide them with a copy of the code of conduct.
For the purpose obtaining a work skilled visa subclass 457 a visa applicant has to be
given sponsorship by an approved business in Australia, in addition the visa applicant must
have the skills which is required to fill the position nominated by the sponsor. The subclass
457 visa is granted for a period of 4 years if the applicant fall under the scope of the specific
skills and as Josephine is an engineer she is eligible to get a visa for 4 years. The visa is
eligible to be applied both by a person in and out of Australia.
2 Austlii (2017) <http://www.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html>.
3 Migration Regulations 1998

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IMMIGRATION LAW
For the purpose of lodging a temporary work subclass 457 visa application employer
sponsored worker form 1066 has to be completed online. The basic charges for the
application of the visa subclass 457 is $ 1080. Other charges which will be charged in
addition to the base fees include the cost of health assessment, police certificates or any test
or certificate which is required for the purpose of the visa. It is also the duty of Wood
Engineering in this case to complete form 1196 which is employee sponsored work form. For
the purpose of completing this form common business information such as Australian
registered body number, Australian business number and documents related to the Australian
security and investment Commission would be needed.
The visa applicant also have to submit a few documents for the purpose of the
application. These documents include licence registration, qualification certificate, reference
of the previous employer and educational qualifications, a skill assessment which is
conducted by a registered organisation and health certificates. Visa conditions 8501 and 8107
are imposed upon the holders of subclass 457 visa. The conditions briefly state that the visa
holder must not perform any work other than the work provided to them by the sponsored
employer, abide by all the rules and regulations provided by the licensing authorities in
Australia and not stay in Australia after the visa has expired (No further stay condition)4.
The subclass 457 visa allows the holder to bring their families to Australia for the
purpose of study or work and provide them with the opportunity to travel in and out of
Australia as much as they want during the lifetime of the visa. Before the visa application is
made an approved employer has to sponsor such application and nominate the applicant for a
vacant position in the business.
Yours sincerely
4 Temporary Work (Skilled) Visa (Subclass 457) (2017) Border.gov.au <https://www.border.gov.au/Trav/Visa-
1/457->.

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IMMIGRATION LAW
Question 2
Visa applicants have the duty to ensure that they only provide information which is
true to the migration agents and not indulge in any kind of misrepresentation of information.
It has been provided by Crock, Mary and Berg (2011) that it is mandatory that a person who
is making a visa application has to be completely truthful in the information and documents
which they provide to the migration agent to be submitted before the department of
immigration5. It has been stated in Section 101 of the MA that, it is the responsibility of every
visa applicant to fill the visa application form in such a way that no false or incorrect
information is given are provided to the department of immigration and border protection. It
has been for the stated by Section 109 of the act that any kind of false or incorrect
information provided by the visa applicants may result in the cancellation of the visa
application. In addition Section 48 of the Act states that if the visa application of a person has
been cancelled because a false or incorrect information they cannot apply for a visa again
except a very limited types of visa. The fact that the visa applicant has no role to play in the
false or incorrect information provided to the department cannot be used by them to avoid
liability under this section6. They cannot claim that the process of making in application was
totally allocated to the migration agent. Through Trivedi v Minister for Immigration and
Border Protection7 it had been ruled by the judges that even if the visa applicant did not
have knowledge that they have provided incorrect information in relation to the application
they may be held liable for the purpose of providing wrong information.
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.
7 2014 FCAFC 42 (4 April 2014)

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IMMIGRATION LAW
As discussed above the code of conduct for the registered migration agent states that
the migration agent has to act towards the best interest of the clients. In addition the actions
of the migration agent has to be based totally in accordance to the existing legal provision
towards a visa application. As stated by regulation 2.9 of the code of conduct a statement in
support of a visa application should not be provided by a registered migration agent under
these regulations along with any encouragement towards making and visa application to the
clients which they believe or have knowledge to be misleading or incorrect.
It has been provided by regulation 2.9A of the code of conduct that the migration
agent directly or indirectly during the process of communication and providing information to
the department of immigration must not indulge in any action which may mislead the
department with respect to the visa application.
In the situation which has been provided by the scenario Josephine has informed
Jacob that the company is not providing on wages in accordance to what has been submitted
to the department of immigration. The fact provided by Josephine has been confirmed by
Jacob with the company would engineering. In such case to ensure the best interest of would
engineering it is the duty of Jacob to make them know that the visa application may be
cancelled because of the incorrect information provided by them to the department of
immigration. If the company does not abide by the suggestion of Jacob it is his duty to inform
the department that an incorrect statement has been made with respect to the application.

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IMMIGRATION LAW
References
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 protection 2014 FCAFC 42 (4 April 2014)