Immigration Law Report

This report outlines the legal obligations of migration agents in Australia, focusing on the subclass 457 visa application process. It details the responsibilities of both agents and applicants, emphasizing the importance of accurate information and adherence to the Migration Act 1958 and Migration Regulations 1998. The report also discusses the consequences of misrepresentation and the necessary documentation for 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:
Date:
Subject: Advice of Migration Law
Respected Mr Jacob,
This letter is being address to you so that you are able to
understand the duties and obligations of a registered migration
agent along with the procedure required for the successful
application of workers skilled temporary subclass 457 visa.All
migration agents who are registered under them Migration
Agent Registration Authority in Australia have to abide by the
legal provisions of the Migration Act 1958, the Migration
Regulations 1998 and the Code of Conduct set out for the
migration agents in Schedule 2 of the MR1. The legislation and
the regulation set out specific criteria following which
migration agent would be able to avoid legal liabilities and
properly carry out their functions towards a client.
Following the legislation and the regulation is not just a
moral duty of the migration agent but it is a legal duty which is
set out in Section 314 of the MA. The section clearly States that
1Austlii (2017)
<http://www.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html>.

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all migration agents in Australia have to abide by the code of
conduct which is set by scheduled 2 of the Migration
Regulation 19982.
As provided by Section 313 of the MA, a migration
agent has to mandatorily provide a statement of services which
must include details like the types of service to be provided and
the fees which would be charged by the agent for providing
such services3. The section further highlights that in case there
is a failure on the part of the migration agent to provide the
mentioned statement of service the client is under no obligation
to pay any kind of fees to the migration agent.
In addition, if the migration agent wants to claim from
the client the fees for the visa application in advance in such
case it has to be remembered by a migration agent that a “client
account” has to be created for such advanced transaction. The
client account is totally different from a normal bank account of
the client and the clients business account. This type of account
is totally under the control of the client however the migration
agent may take out money from the account as and when
needed for the purpose of paying any fees related to the visa.
The migration agent is not allowed to take out money from this
2Migration Regulations 1998
3Migration Act 1958

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account for professional fees until all services were to be
provided by him have been completed4.
The code of conduct further highlights regulation 6b of
the MR which expressly states that a migration agent has to
have in place a professional indemnity insurance so that any
loss which can result out of his actions to the clients can be
compensated by the insurance company.
A Sanction may be imposed by the Migration Agent
Registration Authority (MARA) if any provision of the code of
conduct is breached by the agents as per section 1.5 of the code.
The code of conduct through part 2 provides that a migration
agent always has to base his or her activity within the scope of
law and the interest of the client which is legitimate. The part
extends and provide that the agent must deal with the client
fairly diligently and competently.
It is the duty of a migration agent after he has agreed to
represent the client within a reasonable time confirm the
instruction of the client in writing and act in accordance to the
clients instructions it is also is duty to keep the client informed
fully through writing about the process of each step which the
agent has undertaken with respect to the visa application. The
agent must also inform the client within a reasonable time after
the case has been decided the outcome of the visa application.
4Hollifield, James, Philip Martin, and PiaOrrenius. Controlling immigration:
A global perspective. Stanford University Press, 2014.

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As provided by section 2.9 of the code under no circumstances
can a migration agent support the application of a visa under
the MR and the MA or encourage any effort towards making a
visa application in case he or she believes or suspects search
application to be inaccurate on misleading.
The work skilled visa subclass 457 allow a person to
come and work in Australia if such person is sponsored by an
approved business in Australia and nominated for a specific
position. Any person who is making an application for this visa
has to have the qualification for the position for which he has
been nominated. The visa subclass 457 is provided for a period
of 4 years if the qualification of the applicant comes under the
provision of specific skills provided by the MR. It has been
provided by the scenario that the position for which Josephine
has been appointed is of an engineer and the qualification of
Josephine is also of an engineer which comes under the
provision of specific skills under the migration regulations.
Thus, she would be provided this visa for a period of 4 years if
the application is approved.
Further you have to take into account that specific
document have to be submitted by Josephine if she wishes to be
eligible for subclass 457 visa. These documents include
qualification certificate, licence registration, reference provided
by the previous employer, all educational qualifications and
any skill test which may be required for the purpose of this

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visa. Form 956 has to be duly filled by Jeffrey so that he can
notify the department about the services he is going to provide
to would engineering. Further Jeffrey also has to provide the
code of conduct and knowledge about all rides which would
engineering are entitled to.
A duty is also imposed on Jeffrey according to which he
has the obligation to provide the migration agent registration
authority with information in relation to the amount of fees this
is charged by him for his services. According to the migration
agent registration authority the general fees for a temporary
work skilled temporary subclass 457 visa ranges from $1800 to
$5000 depending upon the situation and the qualification of the
migration agent.
For the purpose of applying for work skilled temporary
subclass 457 visa Jeffrey has to fill up form 166 on behalf of
the visa applicant which is also known as a sponsored worker
form. The minimum charges which are applicable for an
application of subclass 457 visa from in or outside $1080.
Further Wood Engineering have the obligation to duly fill up
form 1196 which is also known as employee sponsored work
form. The form requires general business information such as
documents with respect to Australian Security and Investment
Commission, The Australian Business Number of the company
and the Australian Registered Body Number.

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The applicant of Work Skilled Temporary Subclass 457
visa is imposed with two specific conditions under the
migration regulations which are conditions 8501 and 8107.
According to the brief summary of these conditions holder of
subclass 457 visa cannot work in Australia with respect to any
other job other than what has been offered by the approved. As
soon as the visa gets over the holder of the subclass 457 visa
has to depart from Australia unless he is holding another
substantial visa which allows further stay. In addition the
holder of the 457 subclass visa has to start working for the
employer within 60 days of their arrival in Australia. The visa
applicant is allowed to travel in and out of Australia according
to his wishes as long as the visa is valid. The visa holder is
further allowed to bring their families to Australia for the
purpose of education5.
Yours faithfully
Question 2
Although there are various duties which are imposed on
the migration agent by law, there is a specific duty which the
visa applicants must abide by and which is to make sure that
the information provided by them to the agent is accurate and
does not involve any kind of misrepresentation.Crock (2011)
states that a mandatory obligation has been imposed on visa
5Temporary Work (Skilled) Visa (Subclass 457) (2017)
Border.gov.au<https://www.border.gov.au/Trav/Visa-1/457->.

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applicants that they ensure the information which has been
provided by them to the migration agent has been done with the
observance of complete honesty6.
When the visa applicants fill up a visa application forms
they must not indulge in providing any kind of incorrect or
false information to the department of immigration and border
protection as provided by section 101 of the MA.
The visa application of a person may be cancelled by
the department if it is discovered that any incorrect or false
information has been provided by the applicant according to
Section 109 of the MA
Further if the visa application of a visa applicant is
cancelled in accordance to Section 109 there are only a very
few types of visa which can be applied by such applicant as
provided by section 48 of the MA
Even if the applicant argues that he or she had no
involvement in providing false information to the department
and providing information was totally delegated to the
migration agent they cannot avoid the liability under section
109. The matter was discussed in the famous case of Trivedi v
Minister for Immigration and Border Protection where it was
decided by the court that even though the plaintiff did not know
6Crock, Mary, and L. A. Berg. Immigration, refugees and forced migration:
law, policy and practice in Australia. Federation Press, 2011.

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that the information provided by him is incorrect, he is liable to
get his visa cancelled7.
The code of conduct for migration agents provides that
it is the duty to act in the best interest of the client however
while performing their duties towards a client under no
circumstances the agents are allowed to Breach the provisions
of any law existing in Australia.
Further, as provided by regulation 2.9 of the code of
conduct the migration agent under no circumstances may
provide his support or encourage a visa application by the
applicant which he believes or has reasons to believe to be
incorrect or misleading the department directly or indirectly.
In the particular circumstances where Jeffrey has been
informed by Josephine that the salary provided to her is not
similar to those which have been mentioned in the submission
made by the company to the department. Wages to be provided
to the Employees is an important criteria for determining the
visa application. Thus, if the department finds out, which is
most probable, that incorrect information has been provided to
them the visa application of Josephine would be cancelled.
Under the circumstances it is the duty of Jeffrey to notify the
consequences of such action to the company and to ensure that
correct an appropriate information is provided to the
department in relation to the visa application.
72014 FCAFC 42 (4 April 2014)

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Bibliography
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 PiaOrrenius. 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)