Migration Agents Regulations (Cth)
Migration Agents Regulations
Statutory Rules 1992 No. 292 as amended
made under the
Migration Act 1958
Consolidated as in force on 9 October 1998
(includes amendments up to SR 53 of 1998)
[Note: These Regulations were repealed by SR 1998 No. 53]
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
Contents
1Citation [see Note 1] 2
2Commencement 2
3Interpretation 2
4Prescribed qualifications 2
5Code of Conduct 3
ScheduleCode of Conduct 4
Citation [see Note 1]
These Regulations may be cited as the Migration Agents Regulations.
Commencement
These Regulations commence on 21 September 1992.
Interpretation
(1) In these Regulations, unless the contrary intention appears:
prescribed institution means:
(a) an institution of higher education specified in the Table, as in force from time to time, set out in subsection 4 (1) of the Higher Education Funding Act 1988; or
(b) Bond University, within the meaning of the Bond University Act 1987 of the State of Queensland;
the Act means the Migration Act 1958.
Prescribed qualifications
(1) For the purposes of paragraph 292 (1) (f) of the Act, the following degrees awarded by a prescribed institution are prescribed qualifications:
(a) Bachelor of Laws; and
(b) Bachelor of Legal Studies; and
(c) Master of Laws; and
(d) Master of Legal Studies; and
(e) Doctor of Laws.
(2) A reference in subregulation (1) to a degree:
(a) includes a degree awarded with honours; and
(b) does not include an honorary degree.
(3) For the purposes of paragraph 292 (1) (f) of the Act, a qualification as a barrister, solicitor, or barrister and solicitor, of the High Court or of the Supreme Court of a State or Territory is prescribed.
Code of Conduct
For the purposes of subsection 314 (1) of the Act, the Code of Conduct set out in the Schedule is prescribed.
Schedule Code of Conduct
(regulation 5)
Migration Act 1958, section 314
Objectives
1. In essence, the Code is intended to regulate the conduct of persons operating as migration agents. The body responsible for administering the Code is the Migration Agents Registration Board. A person wishing to operate as a migration agent must register with the Board. The Board may, in the course of ensuring compliance with the provision of the Code, impose an administrative sanction if a breach of the Code is found to have occurred. An administrative sanction may range from a warning or requiring an agent to show cause why he or she should not be deregistered through suspension of registration to the ultimate sanction of deregistration.
Accordingly the Code does not impose criminal sanctions. However, there are a number of existing offences under the Migration Act and Migration Regulations which cover the kind of activity comprehended by the Code. Such activity includes certain misleading statements and advertising, practising when unregistered, practising without being registered, and misrepresenting a matter. Provisions of the Crimes Act 1914 and the Trade Practices Act 1975 of the Commonwealth may also apply to such activity.
The operation of the Code is not intended to displace any duty or liability that a migration agent may have under the common law, or the statute law of the Commonwealth, a State or Territory, in relation to a matter covered by the Code. Accordingly, the provisions of the Code are to be read in the light of this principle.
2. The aims of the Code are:
·to establish a proper standard for the conduct of business as a migration agent;
·to set out the minimum attributes and abilities that a person must demonstrate in order to perform as a registered migration agent under the Code — these include:
- being of good character;
- knowing the provisions of the Migration Act and Migration Regulations in sufficient depth so as to offer sound and comprehensive advice to a client, including advice on the completing and lodging of application forms;
- being able to perform diligently and honestly;
- being able and willing to deal fairly with clients;
·to set out the duties of the migration agent in relation to a client, an employee of the agent, and the Commonwealth and its agencies;
·to establish procedures in relation to the setting and charging of fees;
·to establish a standard for a prudent system of office administration;
·to require an agent to be accountable to the client.
3. The Code is not intended to list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible migration agent.
4. However, the Code imposes on a registered agent the overriding duty to act at all times in the lawful interests of the agent’s client and any conduct falling short of that requirement may render the agent liable to deregistration.
Standards of professional conduct
5. On all occasions a migration agent must act in accordance with the law and the legitimate interests of his or her client.
6. An agent’s professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and a capacity to provide accurate and timely advice. An agent must treat clients fairly and give due regard to their dependence on the agent’s knowledge and experience. An agent must take appropriate steps to maintain and improve his or her knowledge of the Migration Act and Migration Regulations and keep that knowledge up to date., for example:
·by maintaining a library containing the latest version of the Act, new Regulations and amendments to old Regulations, and the Procedures Advice Manual;
·by undergoing a written or oral examination, or both, when appropriate.
7. To the extent that an agent needs to take account of objective criteria for the purpose of making an application under the Migration Act or Migration Regulations, he or she should be frank and candid as to the prospects of success when assessing a client’s request for assistance in preparing a case or making an application under the Act or Regulations. Where an agent needs to exercise discretion and to weigh up the probability of attaining a successful outcome, he or she should not hold out unsubstantiated or unjustified prospects of success when advising clients on applications under the Act or Regulations.
7A. An agent must:
·within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing;
·act in accordance with the client’s instructions;
·keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client;
·within a reasonable time after the case or application is decided, inform the client in writing of the outcome of the client’s case or application.
7B. An agent must complete the work as instructed by a client unless:
·the agent and client agree otherwise; or
·the client terminates the agent’s instructions; or
·the agent terminates the contract for just cause and gives reasonable written notice to the client.
8. Whilst an agent cannot be responsible for misinformation provided by a client, an agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
9. An agent must not engage in false or misleading advertising, including advertising in relation to:
·the agent’s registration as a migration agent;
·the implications of Government policy for the successful outcome of an application under the Migration Act or Migration Regulations;
·guaranteeing the success of an application.
10. An agent must, when advertising, include in the advertisement the words “Registered Migration Agent Number”, followed by the agent’s individual registration number. An agent must not, when advertising, imply the existence of a relationship with the Department of Immigration and Multicultural Affairs, for example, by using terms such as:
·“Australian Government registered”; or
·“DIMA registered”.
11. An agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, an agent must not engage in:
·undue pressure;
·physical threats;
·manipulation of cultural or ethnic anxieties;
·threats to family members in Australia or overseas;
·untruthful claims of Departmental sanctions.
12. An agent must not unreasonably withhold from a client documents belonging to the client or given to the agent by the client. If documents are withheld, their value should be proportional to the amount still owed to the agent by that client under the contract (including any agreed variation or extension of the contract).
Australian passports, and most foreign passports, are the property of the issuing Government and should not be withheld.
This clause is not taken to imply that an agent has a right to withhold documents — i.e. a right of lien over the documents.
Note the question whether, in a particular case, an agent has a lien over documents is a matter for the law of the relevant State or Territory. If in doubt, a client should seek independent legal advice.
13. An agent with operations overseas may indicate that he or she is registered in Australia, but should not create an impression that registration involves accreditation by the Commonwealth Government for work overseas for the Commonwealth or for a client.
14. An agent should not encourage the lodgement of vexatious or grossly unfounded applications under the Migration Act or Migration Regulations; e.g. applications under the Migration Act or Migration Regulations which have no hope of success.
15. An agent may indicate that he or she is registered, and may describe what the registration process involves. However, an agent must not portray registration as involving a special or privileged relationship with the Minister or officers of the Department of Immigration and Multicultural Affairs, e.g. to obtain priority processing, or imply that the agent undertakes part or full processing for the Department.
16. An agent has a duty to preserve the confidentiality of his or her clients.
However, this requirement does not affect the circumstances in which a migration agent is obliged to make disclosure under the law of the Commonwealth, a State or Territory, or by order of a Court or tribunal of the Commonwealth, a State or Territory.
17. An agent must act in a timely manner where the client has provided all the necessary information and documentation in time for legislative deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person’s visa expires.
18. Subject to a client’s instructions, an agent has a duty to provide sufficient relevant information to the Department of Immigration and Multicultural Affairs to allow a full assessment of all the facts against the relevant criteria. For example, an agent should avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.
19. An agent must:
(a) find out the correct amount of any visa application charge and all other fees or charges required to be paid in relation to a client’s visa application under the Migration Act or the Migration Regulations; and
(b) tell the client the amount of each fee and charge; and
(c) if the agent is to pay an amount on behalf of the client — tell the client the date by which the amount must be given to the agent so that the interests of the client are not prejudiced; and
(d) give the client notice of each amount paid by the agent on behalf of the client.
20. An agent should not submit applications under the Migration Act or Migration Regulations without the specified accompanying documentation. For example, in a marriage case, threshold documentation would include a marriage certificate and evidence that the sponsor is an Australian resident or citizen, without which assessment of the case could not proceed (unless the agent has a reasonable excuse or the client has requested the agent to act despite incomplete documentation.)
21. If an agent ceases to be employed as a voluntary worker for a community based advisory organisation and enters into practice as a sole proprietor, member of a partnership or corporation, or as an employee of a partnership or corporation, he or she must inform the Board of this change of status when he or she applies for a renewal of registration.
Fees
22. An agent must provide a signed declaration to be attached to the Departmental application form citing his or her full name, migration agent’s registration number and his or her entire fee for each immigration case. An agent must also sign the declaration or, where provision exists, the application form which he or she assisted in preparing, citing his or her full name and migration agent’s registration number.
23. There is no statutory scale of fees. Nonetheless, an agent is expected to set a fee that is reasonable in the circumstances of the case. A migration agent must provide a statement of fees at the start of work for a client in the form of charges per hour, or per particular service and an estimation of likely time to be taken in performing a service. An agent:
·should not carry out work in a manner that unnecessarily increases his or her cost to the client;
·should, where outside expertise is to be engaged and the client agrees, fully inform the client of the likely extra cost;
·should, especially if a solicitor or barrister. warn clients of possible delays and likely cost involved in pursuing a particular course of action before tribunals and in the courts, for example:
- any need to engage and pay expert witnesses;
- the need to meet legal costs if a case were lost;
- the need to pay Department fees.
24. An agent should advise clients of the method of payment of fees, including Departmental fees.
Prudent office administration
25. An agent must inform clients that they are entitled to receive copies of the application under the Migration Act or Migration Regulations and any related documents if they want copies. An agent will be able to charge a reasonable cost for any copies provided.
25A. An agent must have an address and telephone number where the agent can be contacted during normal business hours. If an agent changes his or her address, telephone number, or any other details that are recorded on the Register of Migration Agents, the agent must give notice to the Migration Agents Registration Board and to all clients of the agent:
·in advance; or
·not later than seven days after the change or changes if advance notice would be unreasonable in the circumstances.
26. An agent must ensure that clients have access to an interpreter where necessary.
27. An agent must maintain records that can be made available for inspection on request by the Migration Agents Registration Board, including files containing a copy of each client’s application, copies of each written communication between the client and the agent, and file notes of each oral communication between the client and the agent.
27A. An agent must respond to a request for information from the Migration Agents Registration Board within any reasonable time specified by the Board.
Financial duties
28. An agent must keep separate accounts for:
·the agent’s operating expenses (the operating account); and
·monies paid by clients to the agent for fees and disbursements (the clients’ account).
The agent must hold fees paid by a client in the clients’ account until the work that the agent has been contracted to do for that client has been completed. The agent may, at any time, withdraw money from the clients’ account for disbursements that are required to be paid to the Department of Immigration and Multicultural Affairs, or any other agency, on behalf of the client.
28A. An agent must keep records of the clients’ account, including:
·the date and quantum of each deposit made to the clients’ account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
·each withdrawal made from the clients’ account; and
·receipts for any payment made by the client to the agent; and
·copies of invoices or accounts rendered in relation to the account.
An agent must make the records of the clients’ account available for inspection on request by the Migration Agents Registration Board.
28B. Nothing in clause 28 or 28A affects the duty of a migration agent, who is also a legal practitioner and who acts in that capacity, to deal with clients’ funds in accordance with the relevant law relating to legal practitioners.
Duties of agents in relation to employees
29. An agent has a duty to properly supervise the work carried out by staff for or on behalf of the agent.
30. An agent must make all employees, including those not involved in giving immigration assistance (e.g., receptionists and typists), familiar with the Code of Conduct—for example, by:
·displaying the Code of Conduct prominently in the agent’s office;
·establishing procedures to ensure that employees become familiar with the Code of Conduct including supplying employees with copies of the Code.
31. An agent should ensure that his or her employees are of good character and act consistently with the Code of Conduct in the course of their employment.
This Code of Conduct should be displayed prominently in the agent’s office.
If a client believes that a migration agent has acted in breach of this Code of Conduct, a complaint can be made in writing to:
The Secretary,
Department of Immigration and Multicultural Affairs,
PO Box 25, Belconnen ACT 2616.
Notes to the Migration Agents Regulations
Note 1
The Migration Agents Regulations (in force under the Migration Act 1958) as shown in this reprint comprise Statutory Rules 1992 No. 292 amended as indicated in the Tables below.
Table of Statutory Rules
| Year and | Date of notification | Date of | Application, saving or |
| 1992 No. 292 | 17 Sept 1992 | 21 Sept 1992 | |
| 1994 No. 264 | 28 July 1994 | 1 Sept 1994 | — |
| 1996 No. 79 | 5 June 1996 | 1 Aug 1996 | — |
| 1997 No. 138 | 23 June 1997 | 1 July 1997 | — |
| 1998 No. 53 | 1 April 1998 | R. 6 and Schedule 1: 21 Jan 1999 Remainder: 1 April 1998 | — |
Table of Amendments
| ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted | ||
| Provision affected | How affected | |
| Rr. 4, 5.................................. | am. 1994 No. 264 | |
| Schedule.............................. | am. 1994 No. 264; 1996 No. 79; 1997 No. 138 | |
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