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Key Topics
Mr Albert Wong, a citizen of China, is your first client and you are most anxious to assist him with his application for a Class AX, subclass 103 Parent (Migrant) Visa. You agree with Albert that your fees will be $2,250 inclusive of GST plus the DIBP’s application fees on the basis that the application and submission will take approximately 15 hours to complete at $150 per hour. What are your obligations in relation to the Code of Conduct?
Introduction
Registered Migration Agents are those who are registered with the Migration Agents Registration Authority and governed by the Migration Act 1958 . The authority for the registered agents, at times imposes an administrative sanction, so that the agents ensure compliance with the Code , and the administrative sanctions range from suspension to the full cancellation of the registration of the registered migration agents. The Code do impose cautions in the form of the above mentioned administrative sanctions, but nevertheless, the Code do not in any way impose criminal sanctions, but still there are enumerated offences covered under the 1958 Act1, and also under the Regulation of 1994 , which deals with multiple conducts of the registered migration agents, like that of misstatements or misleading statements, or any kind of malpractices including misrepresentations. The legislations which covers the above-mentioned misconducts are covered by the Crimes Act 1914 , the Criminal Code Act 1995 and the Trade Practices Act, 1974.
Body
The Code, thus in itself is only aimed at establishing that a proper standard is maintained and in so doing it sets out the minimum attribute along with the abilities, which must be adhered to by a registered migration agent, and that is inclusive of the person providing the immigration assistance to be fit and sound along with integrity and of a sound and good character. The code also aims that the person who is a registered migration agent must be well aware of the provisions of the Migration Act1 and Migration Regulations2, and in so doing must also be aware of various other legislations which are related to the procedure for migration and that is inclusive of offering sound and sufficient advice to the client along with the help in completing the forms if there be the need. Continuing professional development is also a requirement of the Migration Agents Regulations 1998 . But, the Code in no way displace the responsibility or any other liability which the registered migration agent, might have under any provisions of Common Law or any Statute Law of Commonwealth or any other Sate or Territory. Code of Conduct set out the duties, procedures for charging fees and also procedures for the resolution of disputes, which is required of a registered migration agent towards his client, or an employee of the agent, and also the Commonwealth and its agencies.
The Code provides a range of obligations that covers, the interactions with the clients, and this includes the professional fees and the related charges, which are required for the purpose of record keeping and also for the financial management. The responsibilities toward other agents are also governed by the Code and the employees who are working under the registered migration agent. For the complaints so made, against any registered migration agent, are also detailed under the Code, and most importantly, the registered migration agent, is under mandatory obligation to display prominently the Code in the conspicuous place in the office and also in the place where the clients wait, i.e. the client waiting area. The registered migration agent, is also under obligation to provide the clients with the copy of the Code, if asked and enquired by the concerned client, and in so doing the legal obligation to maintain the transparency will be uplifted, which will then be a step forward to the building of mutual trust and confidence between the client and that of the registered migration agent.
A registered migration agent can in no way intimidate or coerce the client for the personal benefit and in so doing must not engage undue pressure, or physical threats, or must not do any manipulation of cultural or ethnic anxieties, and must not threats family members of the clients living in Australia or overseas, and must not make false or untruthful claims of Departmental sanctions, and most importantly, must not uplift or uphold any ground of discrimination based on religion, nationality, race, ethnicity, or belonging to a particular social group or having different sexual orientation or sex.
In the present instant of the case, Mr. Albert Wong, citizen of China is willing to apply for Class AX, subclass 103 Parent (Migrant) Visa, so being a registered migration agent, it is a duty to provide relevant information so, that the submission of applications, can be restricted if it does not in totality reflect the circumstances of the clients, and the registered migration agents are under mandatory obligation to tell the correct fees, which is not being told under the present facts of the case. The registered migration agent, informed Mr. Albert Wong, that the fees will be $2,250 inclusive of GST plus the DIBP’s application fees, but the DIBP’s application fees, for Class AX, subclass 103 Parent (Migrant) Visa, starts from AUD 6,010 , so he is not saying the truth to his client, which is highly unethical and is not allowed under the Code of Conduct.
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Professional codes of conduct help to build confidence as trustworthiness in professional conduct, due to the fact that it helps to build transparency. So, to make a profession as the acceptable practice the fiduciary relationship must be maintained. So, when the registered migration adviser assists client, they actually take the responsibility to help that person in the immigration matter and in so doing, there comes a dependency from the client towards the adviser, thus the adviser takes the seat of the fiduciary, while the client is the principal. If there is no existence of code of conduct, still the registered migration adviser or the agent have some contractual obligations towards the client. After entering into the contract with the client the adviser, borne upon himself or herself legally binding obligations, to take with due diligence and care and with skill and expertise, along with the mutual building of trust and confidence. These obligations are not always written in black and white, but are implied and then on the application of it becomes the part of the contract.
Bibliography
Legislation
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)
Migration Agents Regulations 1998 (Cth)
Migration Regulations 1994 (Cth)
Trade Practices Act 1974 (Cth)
Other
Australian Government, Department of Immigration and Border Protection, Code of Conduct for registered migration agents (8 April 2017) https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf
Code of Conduct- for registered migration agents. (2017). Retrieved from https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf
Department of Immigration and Border Protection, Parent visa (Subclass 103) (2 March 2018)
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)
Migration Agents Regulations 1998 (Cth)
Migration Regulations 1994 (Cth)
Trade Practices Act 1974 (Cth)
Other
Australian Government, Department of Immigration and Border Protection, Code of Conduct for registered migration agents (8 April 2017) https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf
Code of Conduct- for registered migration agents. (2017). Retrieved from https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf
Department of Immigration and Border Protection, Parent visa (Subclass 103) (2 March 2018)
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