Graduate Diploma: Migration Law Case Study on Agent Conduct

This case study examines the conduct of a migration agent, Tarik Georges, and his compliance with the Migration Act 1958 and its associated code of conduct. The analysis focuses on instances of non-compliance, including failures to act in the client's best interest, potential conflicts of interest, failure to report changes in circumstances, submission of deceptive documents, and lack of a proper contract for fees and services. The case study also considers the legal framework for determining whether an agent is a 'fit and proper person' based on the Shi v Migration Agents Registration Authority case, highlighting the importance of integrity and adherence to ethical standards. The document is available on Desklib, a platform offering study tools and solved assignments for students.

Graduate Diploma in Australian
Migration Law

TABLE OF CONTENTS
QUESTION 1.............................................................................................................................3
QUESTION 2.............................................................................................................................7
QUESTION 3...........................................................................................................................11
BIBLIOGRAPHY....................................................................................................................15

QUESTION 1
The default or non-compliance of Tarik Georges relating to code of conduct of Migration Act
1958 has been accepted by Migration Solutions Pty Ltd. However, as a principal, I wanted to
bring notice to you the fact that non-compliance has been made by the agent to some extent
only and same have been discussed below in detail in order to take an appropriate decision
relating to the migration agent:
Making a decision in the best interest of the client, the prospect of success and
dependency on Client
According to the clause, 2.8 of registered migration agent should verify the instruction in
written with the client he is representing in a reasonable period of time consequent to an
agreement1. Subsequently, operating according to the directions given by clients. Further,
keep clients notified in writing of the progress of every case or submission which is exercised
by the agent for their client. The agent should inform its client about the outcome of the case
or submission in a reasonable time when the case or submission is decided2.
In the present case, the agent has not provided the facts relating to the closure of business as
the same would have negatively affected the acceptance of application of visa. Moreover, as
previously also the operations were closed but they were initiated again. Thus, a perception
was made by the agent that things worked out as previously and he made a decision to attain
other details and documents from the client. Clause 2.1 states that agent is required to enact
1 Arther H. Akbari and Martha MacDonald, Immigration policy in Australia, Canada, New
Zealand, and the United States: An overview of recent trends (2014). International
Migration Review, 48(3) pp.801-822.
2 Louise Boon-Kuo,. Policing Undocumented Migrants: Law, Violence and Responsibility.
(Routledge, 2017).

in the interest of the client. However the same has been followed by the agent3. But clause 2.6
and 2.7 requires that agent should candid relating to the success of prospect application
however it should not force submission of an application.
It can be assessed that the agent made a decision after considering the interest of the client.
However he did not make any attempt to reassess the verification of claim of SY’s
immigration pathway and other available options. Moreover, it is not appropriate to take a
decision without any further investigation in case the same result into a negative impact for
visa application4.
Divergence of Interest
With accordance to the clause 2.1A of the Registration Migration Agent (RMA) it should not
allow an individual as a client in case he has any of the following vested interests:
 The agent had past dealing with the individual or plans to help that individual, in the
agent’s ability as a marriage pastor.
 The presence of any other interest of the agent which can influence the legitimate
interest of the client.
Clause 2.1 B specifies that if it has become clear that registration migration acquires conflicts
of interest which are stated in clause 2.1A corresponding to the client than agent should
consider the following requirement of its clients within 14 days:
a) Inform clients regarding conflict of interest.
3 Jason Donnelly, Utilisation of National Interest Criteria in the Migration Act 1958 (Cth)-A
Threat to Rule of Law Values (2017). Victoria UL & Just. J., 7, p.94.
4 Keith Jacobs, Experience and representation: contemporary perspectives on migration in
Australia. (Routledge, 2016).

b) Suggesting clients that with accordance to the code, he cannot act for him.
c) Recommending the client to hire someone else.
d) Stops to operate for the client in agent’s ability like a registered migration agent.
In the present case, it was stated by Tarik George, the agent, that he did not consider SPPL as
a vigorous client following the finalisation of an issue with them. Further, with matter, it can
be considered that the Agent is consigning to the nomination of the manger. Agent’s outlook
does not seem to be allocated with SPPL and SPPL is represented as a client of the agent.
Two phone calls were made by SPPL to an agent in order to inform that they have closed
their business. The agent has informed about this to his client through sending an email prior
to the decision had been taken relating to his visa application.
The agent was required to give similar confirmation to SPPL and SY at the time when SY has
proclaimed SPPL had resumed its functions. By doing so, the agent may have handled a
probable conflict of interest. But Tarik has proceeded according to the claim of SY and in
opposition to SPPL’s directions. Thus, since the conflict of interest between SPPL and SY is
very conflictual, Tarik does not succeed in handling the same in appropriate manner as well
as fails to comply with clauses 2.1 A and 2.1 B.
Suggestion relating to modification in Circumstances
With accordance to the specification provided in clause 2.19, it is the responsibility of RMA
(Registered Migration Agent) to give adequate pertinent information to the department or
reconsider authority to enable a full evaluation of complete information against a relevant
criterion5. For instance, RMA should evade the acquiescence of application in the Migration
5 Migration Agents Regulations 1998 (18 April 2017). <
https://www.legislation.gov.au/Details/F2017C00346>.

Act or Migration Regulation in a form that does not completely imitate the conditions of
person and unfairness the prospect of agreement.
Tarik has not informed the department regarding alterations in circumstances that is SPPL
has closed its business in the five weeks from the first call received by SPPL until SY’s visa
was approved. Providing the importance of alteration in the circumstances to SY’s visa
application, the failure of the agent to supply this data to the Department is a serious lack of
compliance with clause 2.19 and migration legislation which obliges visa applicants to
inform the department concerning changes in the conditions.
Deceptive Document
Clause 2.9 prohibits RMAs from giving deceptive details to the department for visa
appliance6.
Tarik has acquiesced deceptive information to the department by acquiescing employment
contract among SPPL and SY in spite of being attentive that SPPL is closed. The same
implies a clear and barefaced lack of obedience with the clause.
The contract for Fees and Services
In accordance with the provision of clause 5.2 registered migration agent are required to
provide a contract of fees and services to clients7.
Tarik accepts that he did not provide SPPL, a contract relating to services as he had not
recognized this was obliged when a client is not giving fees. Further, he also stated that he
discuss with other RMAs and has now analyzed that Agreement should be prepared for every
6 Hoang, Khanh, Migration law: Of secrecy and enforcement: Australian border force act. LSJ
(2015): Law Society of NSW Journal, (14), p.78
7 Brodget Anderson, Migration, immigration controls and the fashioning of precarious
workers (2014). Work, employment and society, 24(2), pp.300-317.

client. The non-compliance of the agent to obey clause 5.2 has significantly been a
contributory factor in the conflict of interest since the contract would have made the agent
more attentive about his duties towards SPPL.
QUESTION 2
The decision of Migration Solution Sydney Pty Ltd relating to assessing that whether the
agent is a fit and appropriate person or ‘a person of integrity’ is base on the specified case law
and provision of section 290 of Migration Act. Both the description and qualities are
complementary to each other as one relates to the knowledge and experience of agent and
other relates significantly to moral qualities and ethics followed by the agent.
Section 290 of Migration Act, 1958 specifies that an applicant should not be registered in
case he is not a person of integrity or not fit and proper8. A subsection of 1(a) of section 290
asserts that an applicant should not be registered if it is satisfied by MARA that is (Migration
Agent Registration Authority) that an applicant is not fit and proper to provide migration
assistance. Subsection 2 (a) of section 290 of the act states that in order to consider whether it
is satisfied that an applicant is not fit and proper, not an individual of integrity MARA should
take into consideration the level of applicant’s acquaintance of migration process9.
In case of Shi v Migration Agents Registration Authority [2008] HCA 31, Tribunal made a
decision against the agent and registration of Mr Shi was revoked by Migration Agent
Registration Authority (MARA)10. The decision was concluded on the basis of 98 breaches of
8 Laurie Berg, Migrant Rights at Work: Law's precariousness at the intersection of
immigration and labour ( Routledge, 2015).
9 Louise Boon-Kuo,. Policing Undocumented Migrants: Law, Violence and Responsibility.
(Routledge, 2017).
10 High Court considers the nature of administrative review in the Administrative Appeals
Tribunal. < https://www.ags.gov.au/publications/express-law/el80.pdf>.

the agent regarding the code of conduct provided in the Migration Act. This non-compliance
was relating to the administration of the office, financial and other records and management
of staff. Many of violation of the code consider application regarding protection visas.
Moreover, MARA contended that Mr Shi was not an individual of reliability or fit and proper
individual to give migration assistance11. Mr Shi has applied to the Administrative Appeals
Tribunal (AAT) for reconsider of the revoking decision.
MARA has appealed to Federal Court of Australia, which has approved its application that
the AAT has made an error of law through asking whether, during the making of decision by
AAT under September 2005, Mr Shi was proved not to be an individual of reliability or not a
fit and proper human being to give migration assistance. Furthermore, he has requested to the
Full Court of Federal Court, but the appeal was not approved by many of them. Subsequently,
he has appealed to the High Court. It was embraced by the court that AAT was not
constrained to consider evidence of the facts as well as the conditions as they subsisted
during MARA’s decision12. Moreover, the AAT has the authority to execute all powers, and
prudence claimed on MARA through Migration Act Further, most of the individuals
embraced that AAT was permitted to entail the restrictions it did when cautionary Mr Shi to
lift the prudence. It is provided by Migration Act to caution an agent as well as to specify
restrictions to lift the caution and majority alleged that the AAT might execute these
authorities13.
11 Christian Dustmann. ed., Migration: Economic Change, Social Challenge. (Oxford
University Press, USA, 2015).
12 High Court of Australia, NELSON GUANG LAI SHI v MIGRATION AGENTS
REGISTRATION AUTHORITY. < http://www.hcourt.gov.au/assets/publications/judgment-
summaries/2008/hca31-2008-07-30.pdf>.
13 Alessandra Casarico, Giovannie Facchini and Tommaso Frattini, Illegal immigration:
policy perspectives and challenges (2015). CESifo Economic Studies, 61(3-4), pp.673-700.

Their Honours stated to measure fit and proper; the question might be whether inappropriate
conduct has taken place, whether it is likely to occur, whether it could be assumed that it will
not take place. It is recognised that inappropriate conduct takes place in the agent
deteriorating to comply with various sections in the code. Evaluating the risk of the agent not
obeying with the code in the future and with what level of confidence this evaluation can be
prepared, is through defining a query of judgment rather than fact14. Hence, some risk aspects
have to be taken into consideration in order to notify this judgement.
Agent conduct can be personified by two styles of non-compliance15. Primarily, where he has
recognised his rebelliousness, required advice from other immigration agents as to correct
process or recognised his own curative action, accepted duty and expressed regret. The same
can be proof by stating that he had accepted that he would be provided SPPL with a contract.
In the present case, Tarik also recognises that he should have carried out autonomous
substantiation of SY’s claim that SPPL has re-commenced its business. Moreover, the parts
where he had not complied with the code, he had acknowledged his mistakes from that,
stating willingness to perform himself differently in the future and correctly recognized the
manner to make sure he will comply with code. With the assistance of same, it can be
assessed that it is enough to give confidence that in future Tarik will conduct with the code.
14 Elsa Underhill, Dimitria Groutsis, Broek van den and Rimmer Malcolm Diane, Migration
intermediaries and codes of conduct: Temporary migrant workers in Australian horticulture
(2016.). Journal of Business Ethics, pp.1-15.
15 Damian Cox, , Margueterite La Caze and Michael.P. Levine, Integrity and the fragile self.
(Routledge 2018).

Another style of non-compliance is enhanced the cause of apprehension16. The same can be
explained as where the agent has not succeeded to acknowledge duties for his activities, has
repelled blame on SY and retains his position based on a lack of comprehending of migration
legislation. Moreover, this was noteworthy in the continuation of operation of the agent to
cite it was the duty of SY’s to advise the agent to inform the department about an alteration in
conditions or cancellation of visa application. The agent has given grounds behind doing so,
and they are he was performing according to the instructions of SY’s, which was inaccurate
attributes blame to SY. Tarik also argues that the visa application of SY’s can be revoked on
the basis of incorrect information that is given to the agent in the visa application, such a
belief displays a basic lack of understanding of immigration legislation.
The soundness of moral character can be concluded by decision held in case law Peng and
Department of Immigration and Multicultural Affairs [1998] AATA 12[26]17. The specified
case specified the quality of integrity as ‘soundness of moral principle, honesty and
uprightness ’. Moreover, even Tribunal have asserted that frankness and truth are two main
variants in order to assess the moral character. These aspects are to be assessed in evaluating
the character of the agent (Tarik) while he was providing services to SPPL and SY and
submitting required documents to the department.
The non-compliance of Agent through making SY responsible for the event and not fulfilling
the acting in accordance with the decision of SSPL’s instruction. The specified failure cannot
be overlooked, and the conduct of this kind did not represent integrity regarding specified
16 Alan Freckelton, Administrative Decision-Making in Australian Migration Law. (ANU
Press, 2015).
17 Finex Ndhlovu, Migration, Integration Discourse, Exclusion. In Language (2018).
Vernacular Discourse and Nationalisms (pp. 243-290). Palgrave Macmillan, Cham.

matters. However, the same cannot be specified as an embedded character flaw which will
ascertain future conduct.
QUESTION 3
Disciplinary actions can be taken only after assessing the seriousness of conduct of agent’s
action18. In order to assess the same aggravating factors are required to be analysed which
will enhance the responsibility of agent along with mitigating variants which will decrease
the liability of agent.
The provisions of clause 2.17 that in case the application under Migration Act or Migration
Regulations is abominably unfounded such as an application with not the expectation of
success, RMA should not support the client to draft the application along with providing
suggestions to the clients in writing that the application is repellently groundless19. Further, in
case the client wants to drafts the application than agent should acquire the written document
of advice provided to the client.
It is the responsibility of RMA to appropriate timely action manner in accordance with the
instructions are given by the client and to meet up statutory deadlines as per the specification
of clause 2.1820. For instance, there are many situations where an application has to be
submitted prior to the cease of visa according to the Migration Act or Migration Regulations.
18 Zoltán I. Búzás, Evading international law: How agents comply with the letter of the law
but violate its purpose2017. European Journal of International Relations, 23(4), pp.857-883.
19 Jill.I, Goldenziel,Australia-migrants-refugees-international refugee law-immigration-
offshore detention-human rights-executive power (2016). The American Journal of
International Law, 110(3), p.547.
2020Danielle Raynor and Richard Hicks, Empathy and coping as predictors of professional
quality of life in Australian Registered Migration Agents (RMAs) (2018). Psychiatry,
Psychology and Law, pp.1-11.

Clause 2.19 is related to the duty of the agent to give adequate information to the department
or re-examine authority to enable complete evaluation of all the figures related to the
pertinent case. For instance, RMA should evade the submission of an application under
Migration Regulation or Migration Act in such a manner that does not imitate the conditions
of a person and prejudices the view of the agreement. Moreover, RMA should acquiesce to
the procedures for mediation as advised through Authority regarding handling and addressing
grievances by clients for agents21.
In order to take disciplinary action, authority requires assessing compliance with above-
specified clauses as well as the behaviour of the agent22. The variants which are assessed
while analyzing the behaviour are criminal behaviour, behaviour representing unavailability
of appropriate knowledge and skill, continue occurrence of inappropriate behaviour and
behaviour representing blatant disregard23. The agent’s unavailability of knowledge can be
referred to as a most vital variant in order to continue position as SY’s visa in an appropriate
manner as appropriate information was provided by the client. SY’s visa was not accepted as
the details provided by the agent were incorrect, or he did not submit or acted in accordance
with the details provided by the client. Even after being aware of the truth, the submission of
incorrect information represents his disregard or indifference.
The extreme serious behaviour which is believed to be the reason of cancellation of
registration of migration agent is as follows:
 Behaving against SPPL instructions.
21 Ruhul Sarker, Amin, Agent-Based Evolutionary Search. (Springer, 2018).
22 Greg Weeks, Soft Law and Public Authorities: Remedies and Reform. (Bloomsbury
Publishing, 2016).
23 Rachel Stevens, Immigration Policy from 1970 to the Present. (Routledge, 2016).