Immigration Law: Advice on Assisting Clients with Visa Applications

This report provides detailed advice on assisting clients with visa applications, focusing on the legal and ethical obligations of migration agents. It discusses the Migration Act 1958 (Cth) and Migration Regulations 1998, emphasizing the importance of adhering to the code of conduct. The report cover...Read More

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

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Question 1
To
Mr. Jeffery
Address:
Date:
Subject: Advice on assisting clients in visa applications
Dear Mr. Jeffery
The aim of this letter is to ensure that you are provided with sufficient knowledge
about how to deal with clients when providing migration assistance. This letter of advice
focuses on ethical accounting and procedural expectations on the migration agents. You are
going to provide immigration assistance to Wood Engineering on behalf of Josephine who
wishes to be issued with a Temporary Skilled Work Subclass 457 visa.
The first and foremost think which a migration agent must have knowledge about that as
soon as they are registered under the Migration Agent Registration Authority they are
obligated to follow the rules laid down by the Migration Act 1958 (Cth) and the Migration
Regulations 1998. The MA is the primary legislation which provides rules for visa
application and the migration process in Australia. The MA further establishes Migration
Regulations 1998 dealing more specifically with migration agents. The migration agents have
a legal duty to abide by code of conduct set through SCHEDULE 2 of the MR. the
establishment of the code is provided through s 314 of the Act1. The legal obligation of
compliance with the code of conduct is also established through the section. The code
1 Austlii (2017) <http://www.austlii.edu.au/au/legis/cth/consol_reg/mar1998287/sch2.html>.

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provides guidelines which the agents must use while discharging their duties. As provided by
part 1.8 of the code the compliance with the code does not displace any other liability which
may be imposed on the agents through the provisions of the Criminal Code Act 1995, Trade
Practices Act 1974 and Crimes Act 1914 for unregistered practices and misleading
statements2.
There are several procedures which must be complied by a migration agent when it comes
to providing immigration assistance. Firstly there must be an agreement between the client
and the agents in relation to what services are to be provided by the agent and the fees
charged by them. All registered migration agents in Australia have the duty to inform the
department through Form 956 that they are about to provide immigration assistance to a
client according to the requirements under section 312 of the Act3. The notification has to be
provided when a written authorization of the client is obtained to act on behalf of him after
they reach an agreement.
Another important procedural requirement which you should be aware about is the
“statement of services”. The statement is a written undertaking which has to be provided by
an agent to the client mandatorily in accordance with Section 313 of the Act. The statement
consists of description about each and every service which would be undertaken by the agent
on behalf of the client along with fees and expenses which would be required for the
mentioned services. You have to be very serious regarding the statement of services as if this
document is not provided to the client you may lose authority to claim your fees or even the
out of pocket expenses paid by you. Thus it is recommended that you provide the company
with a statement of services including the services you would undertake to apply for a Work
Skilled Temporary Subclass 457 visa along with the details of the expenses to be incurred by
the company for each service to ensure transparency. You should specifically include
2 Migration Regulations 1008
3 Migration Act 1958

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disbursements and out of pocket expenses which would be incurred by you in the statement.
A few expense which must be included are the cost of health certificates, application fees,
police certificate cost and cost of any required skill assessment for the visa.
Coming to the accounting obligation of an agent you must be aware about a “clients
account”. This is a specific account which is created by a person who is taking the help of a
migration agent. The account is a bank account belonging to the client from which the
migration agent has the authority to withdraw money whenever required for the proper
discharge of their services. The account may not be required if you opt to receive the entire
amount after the completion of the services. However you have to know that till all the
mentioned services in the statement of service have not been completed you are not allowed
to withdraw your personal fees from the clients account.
You are also required to keep in mind that you have to have in place a professional
indemnity insurance in accordance to regulation 6B of the MR. This is to ensure that the
clients are compensated for a loss if any incurred because of the actions of the agent.
The code of conduct or any legislation does not limit the amount of fees to be charge by
you for the purpose of providing immigration assistance. However according to the code of
conduct the fees charged by a migration agent has to be fair and reasonable. The fees
according to the code may be based on the complexity in the situation of visa application and
the experience which the migration agent has. The MARA set out a guideline for the visa
application fees charged by the agents in Australia according to which the application fees
differs from $1800-5000 in relation to a subclass 457 visa. The basic fees which is charged
by the department for issuing a Subclass 457 visa is $1080.
When it comes to ethics you have to know that the code expressly sets out that it is the
duty of a migration agent to act fairly and diligently towards their clients. In addition the

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agents during the discharge of their functions must always abide by the existing legal
provisions and not indulge in any coercion or misrepresentation for personal benefits at the
cost of the clients.
The provisions related to subclass 457 visas have been amended from 1st July 2017 and
strict requirements have been set to be eligible for this visa. The visa is provided to those who
are provided sponsorship by an approved business organization. The person who has made an
application for this visa must be nominated by the approved business organization for a
vacant position. The person applying from this visa has to have the knowledge regarding
English language. The applicant also has to get their skills assessed by The Department of
Education and Training’s Trades Recognition Australia4.
The approved business have the duty to fill up Employee Sponsored Work Form 1196
with proper Australian Business Number (ABN), Australian Registered Body Number (ARN)
and specific documents related to Australian Security and Investment Commission. In
addition employer sponsored worker form 1066 has to be submitted by Josephine with
relevant information about educational qualifications, references from past employers,
licenses, penal clearance certificates and health assessments.
You must also ensure that Josephine is informed about the obligations imposed on her if
she gets the subclass 457 visa. A subclass 457 visa holder is subjected to conditions 8501 and
8107 under the migration regulations. According to these conditions the visa holder is not
allowed to work for any other purpose other than what is allocated to them by the approved
business. The holder must start working for the employer within 60 days of arrival in
Australia. The holder must not stay in Australia after the visa ceases to be valid. Josephine
would also have to obtain all licenses which would be required by her to carry out her
4 Temporary Work (Skilled) Visa (Subclass 457) (2017) Border.gov.au <https://www.border.gov.au/Trav/Visa-
1/457->.

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functions in Australia. The visa would allow Josephine to come into and go out of Australia
for any number of times till it is valid.
Yours sincerely

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Question 2
The migration agents have a duty of care towards the clients as well as the
department. As provided by part 2.9 of the code of conduct a registered migration agent to
not support or encourage any application for visa which they believe or have reasons to
believe to be misleading or likely to be misleading.
There is a legal duty and a moral obligation imposed on each non resident who seeks
to apply for a visa in Australia of not indulging in any falsity or misrepresentation while
submitting information related to the visa application to the migration agents or the
department of immigrations5. Therefore a non resident should not submit information to the
department or agents which is incorrect or likely to be incorrect or misleading. Several
provisions are provided by the Act to make sure that this obligation is taken very seriously
the applicants and the agents. Any incorrect or misleading information coming to the
knowledge of the migration agent has to be addressed by him with diligence and in
accordance to law.
The statutory requirements preventing any submission of incorrect and misleading
information as provided through the Migration Act are as follows:
Section 101: All non residents making a visa application has the legal obligation to
only provide information which is true and appropriate in relation to the visa application.
Section 109: If the department finds out that the application for the visa has been
made through any false or misleading information the department has full authority to cancel
such visa application on the basis of such information
5 Crock, Mary, and L. A. Berg. Immigration, refugees and forced migration: law, policy and practice in
Australia. Federation Press, 2011.

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Section 48: if the visa application of a non resident has been rejected because of the
fact that the applicant indulged in providing misleading or in correct information to the
department, the applicant would not be allowed to make an application in relation to visa in
Australia except for a few exceptions.
In addition in case the applicant tries to provide a defence that they did not have
knowledge about the fact that they have provided wrong information to the department or the
agent they would not be exempted from the liability6. Even if it is provided by the applicants
that the wrong information has been provided on behalf of them by the migration agent even
then they cannot be exempted from the liability of their visa being cancelled. In Trivedi v
Minister for Immigration and Border Protection7 the court cancelled the visa application of
the plaintiff even when the incorrect information was not provided intentionally.
Thus, in the situation which you are facing in relation the wages as reported by
Josephine, the company has to be notified that wrong information can lead to the cancellation
of the visa. This situation must not be supported by you because of have the obligation to act
in accordance to law. The company should be asked to change the wages or the same should
be reported to the department so that further actions can be taken by them.
6 Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford
University Press, 2014.
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 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)