Immigration Law: Advice for Migration Agent, Work Visa 457

This report provides comprehensive advice to a migration agent regarding their legal, ethical, and financial responsibilities in Australia, particularly concerning the Work Skilled Subclass 457 Visa. It details the requirements for registration with the Migration Agent Registration Authority (MARA), adherence to the Migration Act 1958 and Migration Regulations 1998, and compliance with the code of conduct. The report emphasizes the importance of providing a statement of service, informing the Department of Immigration, maintaining professional indemnity insurance, and maintaining client confidentiality. It also discusses the ethical obligations of agents, including acting in the best interest of clients and avoiding conflicts of interest. Furthermore, the report outlines the financial accounting procedures, including reasonable fees and the management of client accounts. The assignment explains the requirements for the subclass 457 visa application, including the need for sponsorship, nomination, English language proficiency, and penal clearance certificates. It also highlights the conditions imposed on visa holders and the obligations of visa applicants to provide truthful information. The report references relevant legal provisions and case law to support its advice.

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

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Answer 1
Mr. Jacob
Date:
Address:
SUB: Relevant advice to properly carry out functions as a migration agent; provisions related
to Work Skilled Subclass 457 Visa.
Respected Mr Jacob,
I am writing to you so that relevant advice is supplied to you related to procedures, ethics and
accounting provisions required to successfully operate as a migration agent in Australia. In
order to operate as a migration agent you must be registered with the Migration Agent
Registration Authority and comply by the existing legal provisions of the country to avoid
legal liabilities. You must clearly know that the Migration Act 1958 and the Migration
regulations 1998 have to be strictly adhered to by you to ensure proper functioning. In
addition you are also obliged to follow a specific code of conduct which has been set out for
migration agents. The code exists through schedule 2 of the migration regulations.
The legal instructions that the code has to be followed are stated in section 314 of the
Act. As per the provisions of the section an agent has the legal obligation of abiding by the
rules of the code of conduct while they are carrying out their functions. Therefore you must
be aware of the code and conduct your activities in accordance to its rules.
Further as per section 313 in the Act it is mandatory for you to provide a statement of
service to any client you are dealing with as soon as all negotiations with the clients related to
the services to be provided have been concluded1. The statement is a written document which
1 Migration Act 1958 (Cth)

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must include detailed information about services which have to be provided for the purpose
of attaining the required visa for the clients such as the steps, the monetary need for such
steps and the approximate time concerning the specific visa application. In the particular
circumstances you have to provide the company Wood Engineering who have approached
you to make a visa application on behalf of Josephine with the necessary details about the
prospects of success of the visa application, the steps involved in the application of subclass
457 visa and the monetary cost involved in it. The section further implies that in case the
required statement of services have not been provided by you than your client would be under
no obligation to pay you any fees, disbursements and out of pocket expenses incurred by you.
You have the obligation to inform the department of immigration as a procedural
requirement about any services related to migration assistance which you are going to
provide to a client. As provided by part 3 of the Act section 312A this obligation is
mandatory for you to comply with. The information submitted by you has to be done through
form 956. Upon the termination of the services which were provided to the clients you must
inform within 14 days to the department about such event.
Regulation 6B of the regulations makes it mandatory for you to have in place
professional indemnity insurance. Having this insurance in place would ensure that you and
your clients are protected from any monetary losses resulting out of a professional mistake in
on your side related to the visa application process2.
You also have the duty to inform any person who is being provided with assistance
about the progress related to each step involved in the application. You have to provide the
clients with the copy of the code of conduct and the rights of the clients which they are
entitled to.
2 Migration Regulations 1998 (Cth)

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In this part of the advice you would be notified about your ethical requirements as a
migration agent. The code of conduct expressly provides that the agents have a fiduciary duty
to act in the best possible manner for those being provided with assistance, however in
pursuit of such results the agents must always provide priority to the existing legal
obligations imposed on them and the clients. You have to be diligent and competent while
providing assistance to the clients and if any situation where a conflict of interest between
personal interest and the interest of the client arises you must ensure that you notify the
clients about such conflicts and mostly opt yourself out of such situations. You must not use
any kind of coercion or influence on to the clients as you have information about them to gain
a personal benefit to charge unreasonable fee. It is also you ethical responsibility to keep the
information provided by your clients confidential unless a disclosure is required by law or
you may be prosecuted under the Privacy Act.
Financial accounting also has to be taken seriously by any migration agent registered
with the MARA. No specific benchmark for chargeable fee in relation to a visa application is
provided by the code of conduct. However the code states that the fees charged by an agent
for providing assistance must be within a reasonable limit. You may set out the fee charged
by you in accordance to the complexity involved in the application and the kind of experience
of have as an agent.
In addition you have to be aware of a “clients account”. This account is not normal
bank account and belongs to the clients. You have the right to take out money from this
account if you chooses to charge your clients in advance. You can withdraw money from this
account during the stages of the application as required but your personal fees would only be
withdraw able when all services to be provided have been completed. All disbursements and
out of pocket expenses which needs to be paid by you in relation to the application such as

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application fees, health certificates, police clearance certificates is can be charged by you
from the clients.
For being eligible to make an application for subclass 547 visa an applicant has to be
sponsored by an approved Australian business. Along with the sponsorship the person has to
be nominated for such post in the organization which they possess skills to occupy. As
provided by the MARA the general fee charged by the agents including all disbursements and
out of pocket expenses differs from $1800-5000. The base fee for applying for 457 visa is
$1080. Additional charges include health assessment costs, police certificates and skill
assessments. According to the new requirements for subclass 457 visa the applicant must
have the knowledge of English language along with a penal clearance certificate as effective
from March 2016. The application of this visa is done through lodging form 1066 which is
the employer sponsored worker form by the applicant. The applicant requires details like
educational history, previous employer certificates and any particular license required to
carry on the job. You must instruct Wood Engineering to provide you with their Australian
Business Number and Australian Registered Body number to complete employee sponsored
work form 11963.
You must notify the applicants that there are specific conditions which would be
imposed on them if the visa is granted which are conditions 8501 and 8107 of the migration
regulations. This means that the applicant cannot indulge in any other work for monetary
benefits other than the work provided by the approved employer. The applicant must start
working for the employer within six months of entering in Australia. The visa also provides
for no further stay condition which signifies that as soon as the visa expires the holder has to
leave Australia if they do not have any other visa. The visa provides multiple entry and exit in
3 Temporary Work (Skilled) Visa (Subclass 457) (2017) Border.gov.au <https://www.border.gov.au/Trav/Visa-
1/457->.

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and from Australia along with the allowance to bring in family members of the holder for
education or residential purposes.
Yours sincerely

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Answer 2
It is the duty of every visa applicants to provide true information to the agent and he
should have to be cautious regarding the fact that the information does not misrepresented the
agent in any way4. In the words of Crock and Mary, the primary duty of a visa applicant is to
be truthful regarding the information and documents given to the migration agent as the agent
is acting as a representative who submitted the documents to the Immigration department of
Australia. The duty of the visa application regarding filling the form has been stated by the
Migration Act of Australia, which is specified under section 101. It has been provided by the
section that the applicant in any way provide no false evidences or information and the rule is
mandatory in nature. The Department of Immigration and Border Protection is imposed with
the duties to regulate the related matters regarding the migration and the applicant should not
violate the provision stated by the said department5. If any applicant held liable for violating
the norms stated in section 101, he shall be liable under section 109 of the Migration Act. It is
if the outcome of giving false information would result into the cancellation of the visa
application. Violation of the rules is also mentioned under section 48 of the Act and it has
been mentioned that where a visa application is being cancelled for providing wrong
application, they will be barred under the law to reapply for the visa again. The applicant
cannot claimed that it is the duty of the agent to allocate the visa in this case. It is stated under
section 97 of the Migration act that if a person has counterfeited the document or the visa
application without having an authority to do so, the application will become bogus in nature
and the same can be cancelled. In Vyas & Anor v Minister for Immigration and Anor6, it
was held that the visa applicant will be held liable under the provision of the Act even if he
had given false application unknowingly the facts of the same
4 Crock, Mary, and L. A. Berg. Immigration, refugees and forced migration: law, policy and practice in Australia.
Federation Press, 2011
5 Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford
University Press, 2014.
6 [2012] FMCA 92

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The Australian Code of Conduct, regarding the registered visa agent, ruled out
certain norms, where it has been stated that the agent should act diligently and for the interest
of the applicant. The agent should not violate the legal rules stated therein. It has been
provided by the Code of Conduct that if the agent is aware of the facts that the given
information is false in nature, he must not submit the same to the migration authority. The
agent is barred under the law to mislead the authority regarding the false documents or
information7.
In this case, it has been observed that Josephine told Jeffrey that the company had
paid her less than the contracted money for the facilitation process with Department of
Immigration and Border Protection and the respective company assured the same to Jeffrey.
As a registered migration agent, Jeffrey is liable to let the company know about the
possibility of cancellation of the application. Jeffrey is also liable to inform the Immigration
Department about the false statement in the application in case if the company had not listen
to his suggestion.
7 Schloenhardt, Andreas, and Colin Craig. "‘Turning Back the Boats’: Australia’s Interdiction of Irregular
Migrants at Sea." International Journal of Refugee Law 27.4 (2015): 536-572. Schloenhardt, Andreas, and Colin
Craig. "‘Turning Back the Boats’: Australia’s Interdiction of Irregular Migrants at Sea." International Journal of
Refugee Law 27.4 (2015): 536-572.

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Bibliography:
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 (Cth)
Migration regulation 1998 (Cth)
Schloenhardt, Andreas, and Colin Craig. "‘Turning Back the Boats’: Australia’s Interdiction
of Irregular Migrants at Sea." International Journal of Refugee Law 27.4 (2015): 536-572.
Schloenhardt, Andreas, and Colin Craig. "‘Turning Back the Boats’: Australia’s Interdiction
of Irregular Migrants at Sea." International Journal of Refugee Law 27.4 (2015): 536-572.
Temporary Work (Skilled) Visa (Subclass 457) (2017) Border.gov.au
<https://www.border.gov.au/Trav/Visa-1/457->.
Vyas & Anor v Minister for Immigration and Anor [2012] FMCA 92