Statutory Rules 1998 No. 531

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I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958.

Dated 1 April 1998.

WILLIAM DEANE
Governor-General

By His Excellency’s Command,

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs

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Name of Regulations

1. These Regulations are the Migration Agents Regulations 1998.

Commencement

2. (1) Regulation 6 and Schedule 1 commence on 21 January 1999.

(2) The remainder of these Regulations commence on gazettal.

Interpretation

3. In these Regulations:

Act means the Migration Act 1958.

Authority means the Migration Agents Registration Authority.

prescribed institution means:

(a) an institution of higher education within the meaning of the Higher Education Funding Act 1988; or

(b) Bond University, within the meaning of the Bond University Act 1987 of Queensland.

Publication of notice of intention to apply for registration

4. (1) For subsection 288 (1A) of the Act, the individual must publish the notice in the way set out in this regulation.

(2) The notice must include the following information about the individual:

(a) full name;

(b) any other name by which he or she is or has been known;

(d) the locality where he or she intends to practise as a migration agent;

(e) if he or she intends to work as an employee:

(i) the name and address for correspondence of the employer;

(ii) the employer’s business name (if any).

(3) The notice must also state the address for correspondence of the Authority.

(4) The notice must be published in writing in:

(a) the public notices section of the Saturday edition of a newspaper that:

(i) is ordinarily published every day from Monday to Saturday; and

(ii) circulates in each State, the Australian Capital Territory and the Northern Territory; and

(iii) is specified by the Minister for this paragraph by a notice published in the Gazette; and

(b) either:

(i) the public notices section of a newspaper, specified by the Minister for this subparagraph by a notice published in the Gazette, that is ordinarily published on each business day and circulates generally in the State or Territory in which the individual intends to practise; or

(ii) an ethnic press publication, for an ethnic group that the individual intends to be a substantial part of his or her practice, specified by the Minister for this subparagraph by a notice published in the Gazette, that circulates generally in the State or Territory in which the individual intends to practise.

Prescribed qualifications

5. (1) For paragraph 290 (2) (b) of the Act, the following degrees awarded by a prescribed institution are prescribed qualifications:

(a) Bachelor of Laws;

(b) Bachelor of Legal Studies;

(d) Master of Legal Studies;

(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 paragraph 290 (2) (b) 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 a prescribed qualification.

Continuing professional development

6. For section 290A of the Act, the requirements for continuing professional development of registered agents are set out in Schedule 1.

Publication of notice of cancellation or suspension of registration

7. (1) For paragraph 305 (1) (b) of the Act, the Authority must publish the notice in the way set out in this regulation.

(2) The notice must be published in writing in:

(a) the public notices section of the Saturday edition of a newspaper that:

(i) is ordinarily published every day from Monday to Saturday; and

(ii) circulates in each State, the Australian Capital Territory and the Northern Territory; and

(iii) is specified by the Minister for this paragraph by a notice published in the Gazette; and

(b) either:

(ii) an ethnic press publication, for an ethnic group that was a substantial part of his or her practice, specified by the Minister for this subparagraph by a notice published in the Gazette, that circulates generally in the State or Territory in which the individual practised.

(3) If the individual published a notice under subsection 288 (1A) of the Act, the notice under this regulation must be published in the same publications if possible.

(4) However, the notice may also be published in other publications.

Code of Conduct

8. For subsection 314 (1) of the Act, the Code of Conduct is set out in Schedule 2.

Complaints

9. For paragraphs 316 (c) and (e) of the Act, any person may make a complaint, including:

(a) a client of the agent or lawyer;

(b) an official;

(d) an employee of the Authority;

(e) a parliamentarian.

Note 1 Institute means the Migration Institute of Australia Limited: see Act, s 275.

Note 2 The terms official and parliamentarian are defined in s 273 of the Act.

Repeal of Migration Agents Regulations

10. Statutory Rules 1992 No. 292, 1994 No. 264, 1996 No. 79 and 1997 No. 138 are repealed.

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SCHEDULE 2 Regulation 8

CODE OF CONDUCT

Migration Act 1958, subsection 314 (1)

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:

MIGRATION AGENTS REGISTRATION AUTHORITY

PO BOX K366

HAYMARKET NSW 1240

Part 1—Introduction

1.1 The Code is intended to regulate the conduct of migration agents.

1.2 The Migration Agents Registration Authority (the Authority) is responsible for administering the Code.

1.3 A person who wants to operate as a migration agent must register with the Authority.

1.4 The Code applies to an individual who is listed in the Register of Migration Agents kept by the Authority under section 287 of the Migration Act 1958 (the Migration Act).

1.5 To ensure compliance with the Code, the Authority may impose an administrative sanction if a breach of the Code is found to have occurred.

1.6 An administrative sanction may range from a warning through to suspension of registration or the ultimate sanction of cancellation of registration.

1.7 Accordingly, the Code does not impose criminal sanctions.

1.8 However, there are a number of offences under the Migration Act and Migration Regulations that also deal with the kind of activity covered by the Code. These activities include misleading statements and advertising, practising when unregistered and misrepresenting a matter. Provisions of the Crimes Act 1914 and the Trade Practices Act 1975 may also apply to these activities.

1.9 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 a Territory, in relation to a matter covered by the Code. The provisions of the Code should be read in the light of this principle.

1.10 The aims of the Code are:

(a) to establish a proper standard for the conduct of business as a migration agent;

(b) to set out the minimum attributes and abilities that a person must demonstrate to perform as a migration agent under the Code, including:

(i) being of good character;

(ii) knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;

(iii) completing continuing professional development as required by the Migration Agents Regulations 1998;

(iv) being able to perform diligently and honestly;

(v) being able and willing to deal fairly with clients;

(vi) having enough knowledge of business procedure to conduct business as a migration agent, including record keeping and file management;

(vii) properly managing and maintaining client records;

(c) to set out the duties of a migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;

(d) to set out requirements for relations between agents;

(e) to establish procedures for setting and charging fees by migration agents;

(f) to establish a standard for a prudent system of office administration;

(g) to require a migration agent to be accountable to the client;

(h) to help resolve disputes between a migration agent and a client.

1.11 The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible migration agent.

1.12 However, the Code imposes on a migration agent the overriding duty to act at all times in the lawful interests of the agent’s client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.

Part 2—Standards of professional conduct

2.1 A migration agent must always:

(a) act in accordance with the law and the legitimate interests of his or her client; and

(b) deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.

2.2 If a migration agent:

(a) gives advice of a non-migration nature to a client in the course of giving immigration assistance; and

(b) could receive a financial benefit because of the advice;

the agent must tell the client in writing, at the time the advice is requested or given, that the agent may receive a financial benefit.

2.3 A migration agent’s professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.

2.4 A migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.

2.5 A migration agent must take appropriate steps to maintain and improve his or her knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and keep that knowledge up to date, including:

(a) maintaining a library containing the latest version of the Migration Act, Migration Regulations and other legislation relating to migration procedure, and the Procedures Advice Manual;

(b) undergoing a written or oral examination, or both, when appropriate.

Note An agent must satisfactorily complete the requirements prescribed by the Migration Agents Regulations 1998 for continuing professional development.

2.6 To the extent that a migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she should be frank and candid about the prospects of success when assessing a client’s request for assistance in preparing a case or making an application under the Migration Act or Migration Regulations.

2.7 An agent who is asked by a client to give his or her opinion about the probability of a successful outcome for the client’s application should not hold out unsubstantiated or unjustified prospects of success when advising clients on applications under the Migration Act or Migration Regulations.

2.8 A migration agent must:

(a) within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing; and

(b) act in accordance with the client’s instructions; and

(c) keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client; and

(d) within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.

2.9 While a migration 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.

2.10 A migration agent must not engage in false or misleading advertising, including advertising in relation to:

(a) the agent’s registration as a migration agent; or

(b) the implications of Government policy for the successful outcome of an application under the Migration Act or Migration Regulations; or

2.11 A migration agent must, when advertising, include in the advertisement the words Registered Migration Agent Number, followed by the agent’s individual registration number.

2.12 A migration agent must not, when advertising, imply the existence of a relationship with the Department of Immigration and Multicultural Affairs (the Department) or the Authority, for example by using terms such as:

(a) Australian Government registered; or

(b) Migration Agents Registration Authority registered; or

2.13 A migration agent may indicate that he or she is registered, and may describe what the registration process involves.

2.14 However, a migration agent must not portray registration as involving a special or privileged relationship with the Minister, officers of the Department or the Authority, for example to obtain priority processing, or to imply that the agent undertakes part or full processing for the Department.

2.15 A migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, an agent must not engage in any of the following:

(a) undue pressure;

(b) physical threats;

(d) threats to family members in Australia or overseas;

(e) untruthful claims of Departmental sanctions;

(f) discrimination on the grounds of religion, nationality, race, ethnicity, politics or gender.

2.16 A migration 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.

2.17 A migration agent must not encourage the lodgement of vexatious or grossly unfounded applications under the Migration Act or Migration Regulations, for example applications under the Migration Act or Migration Regulations which have no hope of success.

2.18 A migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person’s visa ceases to be in effect.

2.19 Subject to a client’s instructions, a migration agent has a duty to provide sufficient relevant information to the Department 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.

2.20 A migration agent must:

(a) find out the correct amount of any visa application charge and all other fees or charges required to be paid for 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 for 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 for the client.

2.21 A migration agent should not submit an application 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 citizen, an Australian permanent resident or an eligible New Zealand 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).

2.22 If a migration 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 tell the Authority of this change of status when his or her registration is renewed or he or she applies for repeat registration.

2.23 A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.

2.24 This Code is a responsive document that will change from time to time to meet the needs of clients and to ensure the delivery of relevant, up to date advice.

Part 3—Obligations to clients

3.1 A migration agent has a duty to preserve the confidentiality of his or her clients.

3.2 A migration agent must not disclose, or allow to be disclosed, confidential information about a client or a client’s business without the client’s written consent, unless required by law.

3.3 A migration 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. The agent may charge a reasonable amount for any copies provided.

3.4 A migration agent must have an address and telephone number where the agent can be contacted during normal business hours.

3.5 If the 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 Department, the Authority, any review authority and all current clients of the agent:

(a) in advance; or

(b) not later than 7 days after the change or changes if advance notice would be unreasonable in the circumstances.

3.6 A migration agent must ensure that clients have access to an interpreter if necessary.

Part 4—Relations between agents

4.1 Before accepting immigration work, a migration agent must consider whether he or she is qualified to give the advice sought by the client. If the agent is unsure, he or she should seek the appropriate advice or assistance, or refer the matter to another migration agent.

4.2 A referral may be made, for example, if the agent is asked for advice on matters for which he or she does not regularly provide immigration assistance.

4.3 A migration agent must not encourage another agent’s client to use the first agent’s services, for example by denigrating other agents or offering services that the first agent cannot, or does not intend to, provide.

4.4 A migration agent must not take over work from another agent unless he or she receives from the client a copy of written notice by the client to the other agent that the other agent’s services are no longer needed.

4.5 A migration agent must act with fairness, honesty and courtesy when dealing with other agents.

4.6 A migration agent who gives a written undertaking to another agent must make sure the undertaking is performed within a reasonable time, if possible.

Part 5—Fees AND CHARGES

5.1 There is no statutory scale of fees. However, a migration agent is expected to set and charge a fee that is reasonable in the circumstances of the case.

5.2 A migration agent must:

(a) before starting work for a client, give the client an estimate of fees in the form of charges for each hour or for each service, and an estimate of time likely to be taken in performing a service; and

(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and

(d) give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.

5.3 A migration agent:

(a) should not carry out work in a manner that unnecessarily increases the cost to the client; and

(b) should, if outside expertise is to be engaged and the client agrees, fully inform the client of the likely extra cost; and

(c) 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:

(i) any need to engage and pay expert witnesses;

(ii) the need to meet legal costs if a case were lost;

(iii) the need to pay Departmental fees and charges;

(iv) the need to pay translation and interpreter fees and charges.

5.4 A migration agent should advise clients of the method of payment of fees and charges, including Departmental fees and charges.

Part 6—Record keeping and management

6.1 A migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:

(a) a copy of each client’s application; and

(b) copies of each written communication between:

(i) the client and the agent; and

(ii) the agent and any relevant statutory authority; and

(i) the client and the agent; and

(ii) the agent and an official of any relevant statutory authority.

6.2 A migration agent must keep all documents to which a client is entitled securely and in a way that will ensure confidentiality while the agent is giving services to the client and until the earlier of:

(a) 2 years after the date of the last action on the file for the client; or

(b) when the documents are given to the client or dealt with in accordance with the client’s written instructions.

6.3 A migration agent must respond to a request for information from the Authority within a reasonable time specified by the Authority.

Part 7—Financial duties

7.1 A migration agent must keep separate accounts for:

(a) the agent’s operating expenses (the operating account); and

(b) money paid by clients to the agent for fees and disbursements (the clients’ account).

7.2 A migration 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.

7.3 The agent may, at any time, withdraw money from the clients’ account for disbursements that are required to be paid to the Department, or any other agency, for the client.

7.4 A migration agent must keep records of the clients’ account, including:

(a) the date and amount 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

(b) each withdrawal made from the clients’ account; and

(d) copies of invoices or accounts rendered in relation to the account.

7.5 A migration agent must make the records of the clients’ account available for inspection on request by the Authority.

7.6 Nothing in clause 7.1, 7.2, 7.3 or 7.4 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.

Part 8—Duties of agents to employees

8.1 A migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance.

8.2 A migration agent must properly supervise the work carried out by staff for the agent.

8.3 All immigration assistance must be given by a registered migration agent.

8.4 A migration agent must make all employees, including those not involved in giving immigration assistance (for example receptionists and typists), familiar with the Code, for example by:

(a) displaying the Code prominently in the agent’s office;

(b) establishing procedures to ensure that employees become familiar with the Code including supplying employees with copies of the Code.

8.5 A migration agent should ensure that his or her employees are of good character and act consistently with the Code in the course of their employment.

Part 9—Complaints

9.1 A migration agent must respond properly to a complaint by a client about the work or services carried out by the agent or the agent’s employee.

9.2 A migration agent must submit to the procedures for mediation as recommended by the Authority about handling and resolving complaints by the client against the agent.

Part 10—Termination of services

10.1 A migration agent must complete services as instructed by a client unless:

(a) the agent and client agree otherwise; or

(b) the client terminates the agent’s instructions; or

10.2 A migration 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).

10.3 Australian passports, and most foreign passports, are the property of the issuing Government and must not be withheld.

10.4 Clause 10.2 does not imply that an agent has a right to withhold documents (that is, a lien over the documents).

10.5 On completion of services, the agent must, if asked by the client, give to the client all the documents:

(a) given to the agent by the client; or

(b) for which the client has paid.

10.6 If the client terminates the instructions, the agent must take all reasonable steps to deliver all documents quickly to the client or any other person nominated by the client in writing. If the agent claims a lien on any documents, the agent must take action to quantify the amount claimed and tell the client in a timely manner.

Note 1 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.

Note 2 A document includes an application, nomination, sponsorship, statement, declaration, affidavit, certificate or certified copy. See Acts Interpretation Act 1901 s 25, Migration Regulations regulation 5.01.

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NOTE

1. Notified in the Commonwealth of Australia Gazette on 1 April 1998.