Migration Agents Code of Conduct - Assignment Example

Task 1 What procedures would you establish on behalf of Fred Flintstone to assist him in complying with the Code of Conduct? (You should also address the file management issues.) Ans.: First, Fred Flintstone must notify the Migration Agents Registration Authority (MARA) that he has already began the business of taking a client on a for-profit basis for migration assistance within 14 days after he has entered into an agreement with Joanne Rubble to assist her in her application to convert her visitor visa to visa 457. Under s 312, Division 5 of the Migration Act of 1958, a registered migration must so notify the MARA within the said period if he or she has paid in his or her registration the amount under regulation 5 of the MARA Charge Regulation 1998. This section is important because any violation of it is considered strict liability. Likewise, Flintstone must also notify the Department that he has entered into a contract with Rubble, his first client, in connection with her application for a 457 within the period prescribed in the regulation. This is in accordance to s 312A of the Migration Act of 1958. Also, any violation of this section is strict liability. S 7G of the MARA 1998 sets out in detail this particular requirement. Thus, the migration agent must submit this requirement either by submitting a completed Form 956 or a plain letter with the following details: date, signature of Flintstone; the name of the visa applicant Joanne Rubble; the visa applicant’s department client number or file number; Flintstone’s Migration Agent Registration Number or by filling-up completely the Migration Agent Details section of the visa application of Rubble. The period within which to fulfill this requirement is either at the time Flintstone lodges the application of Rubble or if the application has been commenced, within 28 days from the time of such lodgment. In addition, Flintstone must furnish Rubble with a statement of services which sets out an itemized list and detail of the services he is going to perform for Rubble with the corresponding charge of each service or services. Thus, Flintstone must give Rubble a statement of services where he should list therein the following: service charge including the first lengthy interview for $110; visa application including GST but excluding all incidental charges and Departmental charges for $2,000. The statement of services must have been complied first by Flintstone before he has demanded payment from Rubble, and if not the amount is made recoverable. This is the essence of s 313(1), (2) and (3) of the Act. Likewise, s 5.5 of the Code states that the statement of services must also be recoverable if a statement of services has not been furnished him or her within 28 days after the decision has been issued in regards to his or her application. As to fees, they must generally be reasonable but it is important that an estimate be given to the client as to the number of hours or services to be made and any likely disbursements by the Flintstone before he actually starts working on the case and have Rubble accept these terms in writing. In the event of changes of fees caused by alteration of hours or services, Rubble must also be informed in writing (s 5.1 and 5.2 (a), (b), (c), (d) ). Under s 5.3, of the Code, the agent must be careful that he does not unnecessarily add to the charges and fees of the client through unnecessary expenses. Under s 314 (2) of the said Act, Flintstone and other registered migration agents like him should act and conduct their profession in accordance with a Code of Conduct which is prescribed under s 314(1). According to the MARA, such Code of Conduct must be displayed in an area of the registered migrations agent’s office where it can be readily seen by the clients and other people entering the former’s office. There is also another publication called the Information on the Regulation of the Migration Advice Profession which the MARA 1998 has caused to be published under s 9A for the purpose of giving the clients of the agent information as to the migration advice industry, the functions of the Authority and the pertinent migration advice legislations, the obligations and duties of the migration agent to him and the complaint procedure against an erring migration agent. As a matter of fact, s 3.2 of Part 3 of the Code mandated the agent to furnish a copy of this publication to any client before the agent actually starts working for the client. And he must record this fact of having furnished the client a copy of the publication. In addition to furnishing clients copies of the IRMAP, Flintstone must also inform Rubble that he is entitled to copies of all documents pertinent to his or her application. Also, the agent must provide his client an address and a telephone number which will make him easy to contact during office hours. Any change of important details about the agent like such address and telephone must be communicated not only to the client but also to the Authority and Department before he actually effects such changes or within 7 days after effecting such changes. In case, the client of the agent comes from a non-English speaking country and does not speak the language, the agent must make an interpreter available for the client. These are the pronouncements laid down under sections 3.2A, 3.3, 3.4, 3.5 and 3.6 of the Code, respectively. Under 3.2, the confidential nature of the agent-client relationship must be enforced and thus no information must be divulged by the agent acquired in the course of his agency unless the client gives a written consent. Part 6 of the Code requires a system of record-keeping by the agent. Thus, Flintstone must keep a file of all written documents regarding all transaction made in regard and relevant to the application of Rubble, namely: an application copy; all written communication between client and agent, agent and any statutory body and agent between the Department; all oral communication notes between agent and client, agent and any statutory body and agent and the Department. All these files must be kept by Flintstone for a maximum period of seven years and must ensure that it cannot be accessed by unauthorized individual and is kept confidential up to either the end of seven years or when the client has appropriated them to his possession. Under Part 7 of the Code, the agent is mandated to keep two accounts in a financial institution: an operating account, and; the client’s account. The operating account holds all monies of the client given to the agent for operating expenses of the application while the agent’s account holds all monies paid as fees. The money in the client’s account must be held until after the agent has completed a particular block of work, in which case he may withdraw a corresponding amount from such account as payment for his actual services unless, he has issued a receipt of a corresponding amount to the client. In the case at hand, Flintstone must put the $110 in the client’s account and the $2000 in the operating expenses account. If the lengthy interview with GST has already been performed and realized, he can then withdraw this amount as payment of his services. On the other hand, in the event money is actually needed to effect the application at any stage, he may withdraw the corresponding amount from the operating expenses account. Task 2 If you acted for both the hospital (employer) and Joanne Ruble (the employee) and Joanne advised you that she was only paid $20,000 instead of the prescribed minimum salary and the application form was signed on the basis that she would receive the prescribed minimum salary, what are your obligations under the Code of Conduct? Be precise. How would you address these ethical issues? Ans.: As a migration agent, I must act in accordance with the prescribed conduct under the Code of Conduct which operates by force of the Migration Act of 1958 § 314 (1) and the Migration Agents Regulations 1998, Schedule 2, regulation 8. This implies that I must advise Joanne Rubble not to accept salary that is not within what is prescribed by law and the employer (because as its agent I am well within my rights to give it advice) that it is not legal under Australian law to contract with an employee for a salary that is below the prescribed minimum salary like what it is offering to Rubble and to enter into a contract with the latter contingent on a below-the-minimum salary. I must also tell the employer that I have or will be counseling the employee to pursue the contract under the said illegal condition. If the employer will not change the salary of Rubble in accordance with that prescribed by law then I will have to tell the employer that I will have to withdraw as its migration agent. On the other hand, if Rubble, despite my advice, will pursue with the contract under the original condition, i.e. she will receive a salary below that of the prescribed minimum, then I will also resign as her migration agent. The rationale for such decision not to take part in any illegality is the mandated conduct by the said Code. According to Part 1 of the Code, s 1.10, its aims are not simply to ensure that the migrations agents have full and extensive knowledge of the all laws pertinent to his or her craft, but to warrant that migration agents act diligently, honestly and fairly with clients. Likewise, s 1.12 of the Code requires that an agent must keep an “overriding duty to act at all times in the lawful interests” of his or her client. Emphasis is placed here on ‘lawful interests.’ The implication of these provisions in the case at bar is that I should not countenance or support an agreement that is not sanctioned by law, therefore I must make it clear to my clients that the agreement they entered into is not lawful and must therefore be discontinued and if they persist in continuing it, then I must detach myself from taking part in such an agreement. This is not only a response that seeks to work for the welfare of the clients, i.e., to keep their acts within the confines of lawful activities and prevent them from potential civil and criminal punishments, but also as a form of self-defense. The last sentence of the previously mentioned provision states to the effect that the any act which falls short of that required by the Code may subject an immigration agent to cancellation of his or her registration. In addition, Part 2. s 2.1 of the said Code requires that an immigration agent must act in accordance with the law and the “legitimate interest” of his clients. In the case at hand, as a migration agent I will not be honest, act in accordance with law and “legitimate interest” of my client if I will allow the employer to shortchange the employee Joanne Ruble. The law requires that an employer must pay salary that does not fall below a set and standard minimum amount. This means that the employer’s plan to pay Rubble a mere $20,000/annum is not lawful because it contravenes the law. A migration agent who has knowledge that the contractors to the agreement entered in contravention to the law and allows it to happen is not only remiss of his duties but also, by extension, guilty of an illegality. It is therefore the migration agent’s duty to advise his clients whether their acts are legal or not and withdraws in the event they persist in their illegal agreement Moreover, s. 2.9 of the part 2 of the said Code requires that a migration agent must not support an application or statements which he or she knows or believes to be misleading or inaccurate and neither should he or she encourages the making of such despite the fact that he or she could not be made accountable for such misleading or inaccurate statements if provided by the client. In the case at hand, Rubble has intimated to me the real story behind the contract, an agreement which is not sanctioned by law. This intimation has made me a party to such an agreement and which I must, as a migration agent act to correct immediately. If the parties persist in the continuation of the contract and its submission as a part of the documentation for the application form of Joanne, then I must withdraw as the migration representative of both parties. To continue being their agent with full knowledge of the illegality of the secret agreement will make me a willing party to such illegality and open me to sanctions under the Code of Conduct. However, since all information furnished me by Joanne in the course of my duty as her migration agent is subject to the confidentiality clause under s. 3.1 of part 3 of the Code, I am precluded from revealing this information to others subject only to certain exceptions. References Code of Conduct 2006 Migration Act 1958 Migration Agents Regulations 1998 Read More