Question:

1. All answers should be supported by reference to the relevant legislation provisions of the Migration Act and Regulations. 

2. A candidate, whose answer to any question depends upon facts which are not stated, must discuss all relevant alternatives. 

3. REFERENCING: Students are required to use the Australian Guide to Legal Citation as the preferred method of referencing. You are also required to submit a bibliography for each assessment task and not merely a reference list.

Assessment Criteria

1. Accurate answers to the questions demonstrating knowledge of legislative and regulatory provisions.
2. Answers are justified by clear reference to the relevant facts, identify logical assumptions you have made about the facts in answering questions.
3. Arguments and information are clearly and logically presented.
4. Demonstrated understanding of principles and values of a registered migration agent.
5. The variety of options available is discussed in your answers with an assessment of the risks where relevant.

SCENARIO

Jeffrey Jacob is a registered migration agent who has recently completed a Graduate Certificate in Migration Law and Practice. Jeffrey was consulted by Wood Engineering, a large civil engineering firm in Geelong, Victoria, as they wish to sponsor Josephine Ladders as a civil engineer under the Class UC sub-class 457 Temporary Business Entry visa.

The Human Resources Manager from Wood Engineering enquired about Jeffrey’s professional fees and disbursements. All fees will be paid by Wood Engineering. Jeffrey quoted his professional fees would be $3,800.00 inclusive of GST plus disbursements to be paid to the Department of Immigration and Border Protection (DIBP) and any other disbursements. Jeffrey requested a payment of $1,500.00 upfront in order for him to commence work. The Human Resources Manager informed Jeffrey to proceed and stated that they would transfer the deposit by electronic transfer tomorrow and requested particulars of his bank account.

Prepare a letter of advice, in plain English, for Jeffrey in relation to the procedural, accounting and ethical requirements he would have to meet to comply with the requirements under the Migration Act 1958, the Migration Agents Regulations 1998 and the Code of Conduct in relation to being appointed by Wood Engineering as their migration agent and charging them for the work.

You are also required to stipulate, as far as practicable, all “disbursements and out of pocket expenses” and the requirements to make a valid visa application for a Class UC sub-class 457 Temporary Business Entry visa for Josephine.

(25 marks) (Maximum Word Limit: 1250 words)

QUESTION 2

Four months later, after the visa application for the Class UC sub-class 457 Temporary Business Entry visa was lodged, Josephine told Jeffrey that she is actually paid substantially less than the amount stipulated in her contract with Wood Engineering which was provided to DIBP. Jeffrey subsequently contacted Wood Engineering and they confirmed it was true that Josephine was paid substantially less than what was stated in her contract.

What are your obligations as a registered migration agent (if any) under the Code of Conduct?

(10 marks) (Maximum Word Limit: 500 words)

Answer:

To

Mr.________________

Address____________

Respected sir,

We have applied for a Class UC subclass 457 visa that is granted for the temporary work in the continents of Australia. The visa will be granted by the Department of Immigration and Border Protection, Australia. You are appointed as a registered migration agent for completing the act. It is to be noted that being a registered agent in the migration sector, you should have to understand the basic principle of the Migration Act and the Regulations.

Common principle of the migration law is applicable in Australia. The Migration Act 1958 and Migration Regulation Law 1994 in Australia regulate the migration law. There are certain provisions categorised in the Act and the Code of conducts that are deal with the validity of the visa of special class. In the present case, a problem arose regarding the 457 visa. It is a kind of visa that is provided to the employees who want to do temporary work in the Australia and this type of visa is common in the country. This type of visa arose in the period of John Howard, who was the Prime Minister of Australia. It became subclass 457 visa in the year of 2012. Department of Immigration and Border Protection are in the duty regarding the procedure of the visa.

There are certain requirements are mentioned under the law regarding the applicability of the visa and being a registered agent, it is required you to know about the provision. The visa holder can work in Australia for a term of four years and he must have someone who has no restriction regarding the internal affairs of the country. The benefit regarding the visa holder is that he can go and come in that country as much as he can. There is no restriction regarding the travel of the visa holder but there is a limitation regarding his stay at the country. Another requirement is that the holder must have to take certain examination regarding the English language and the health requirements as well.

There are certain restrictions applicable on the visa holder according to the provision of Migration Act 1958. Visa holder must have to engage in the workplace that is mentioned in the pre-nominated place. They must be associated with the work of their sponsors and they have to work for the days that are not less than 60 days. The Australian government has certain provision to review the application of the visa holder. These visas are granted for the temporary works and the limitations regarding the same is short term in nature. Certain criticism raised regarding the validity of the visa as certain situations are cropped up regarding the same. It has been noticed that most of the visa holders are not getting well paid by their sponsors and due to this there is a negative impression on the image of the visa are created. The initiatives taken by the government for ease the rules of the visa by excluding the language base requirements from the visa holding ground is also criticised.

It should be notified that in case of granting the subclass visa (subclass 457), there is a need for explanation of certain procedural, and ethical requirements are to be done by the Migration agent. The term migration agent is an agent, who takes the responsibility regarding the procedural techniques of the visa holder and facilitates the proceedings. There is certain code of conducts that should be followed by the agent regarding their own job. However, it should be kept in mind that the provision of the code of conducts is applied only to the registered agents. Section 287 of the Migration Act 1958 has provided certain provisions regarding the same and it should be kept in mind that the agent must follow all the rules that are to be mentioned here. There are certain provision regarding the violation of the same has also been mentioned. In case of a breach is made or if the agent is alleged to violate the provision of the code of conduct, administrative proceeding can be taken against him. The procedure can be taken place as per the provision of the Migration Act 1958 and the Migration Regulations 1994. If there is any misrepresentation regarding the same is done, the offender must have to face the criminal proceedings. It also attracts the provision of the Trade Practices Act 1974. However, there is no intention of the code to snatch away any duties that are imposed on the registered migration agent. The code is regulated by the Common law of Australia.

Certain specific abilities are set out in the Code that must be abided by the agents. An agent should have certain professional qualifications that are to be pointed out by the Migration Act 1958. The agents should interact with the customers diligently. It is important to maintain the client list properly and deal with the customers fairly.

There is a specific cost imposed for the granting of this visa. It may be varies if there is any person added in the visa. General fees regarding the visa are $420. The nomination fees are $330 and for the main applicant, the fees are $1,060. There are certain additional charges are applied on the visa and the amount is $700.

The Migration Act has specified certain provisions regarding the procedural fairness of Migration Act. If there is any situation arises that, make the visa invalid, the ministers have power to cancel the same on the said ground. The provision relevant to the effect has been described under section 109. According to section 133, the minister can cancel the visa if there is a scope regarding the hamper of public interest takes place by the invalid visa. If the person who applies for the visa has not passed the qualification test, then the Ministry as per the provision of section 501A can cancel the same. In a case, where the person is alleged to have a past criminal record, the visa can be cancelled.

Character test plays an important role regarding the issuance of visa for the temporary work. Under the provision mentioned in Section 501(3A), the ministry is conferred with the power to cancel the visa if the expected holder could not able to crack the necessary examination. Character test starts up by way of a police checking regarding the behaviour of the person. It is to be notified that whether the person was held for the criminal offence like child abuse or the sexual harassment. If any of the allegations be proved against the person, his visa will be cancelled. The procedure of cancellation is depending on the discretionary power of the Ministry, but no arbitrariness can be allowed and there must be certain specific reason shown by the Ministry.

Ethical issues arose in the case where there is a dilemma regarding to come into a conclusion on the visa problem cropped up. In the case, certain ethical issues cropped up for the justification of the validity of the visa. There are certain provisions stated under the law of Migration that are specified under section 47 of the Migration Act 1958. In this letter of advice, the above noted provisions of the Code of conducts are being made for the better understanding of the same. It is yours duty to maintain a close relationship with the clients, as you are a registered agent.

You are appointed as a registered agent for doing the job. You have demanded an amount of $3,800.00 as professional fees including GST and fees of disbursement. You have also asking for an amount of $1,500.00 to commence the work, which had been accepted by the Woods Engineering as an agent fees. The term disbursement denotes to pay certain money is paid for the cash expenditure that can raise the cash flow. In simple word, disbursements are paid by the company to do certain works. In this case, Wood Engineering promised to pay certain amount of money to Jeffrey for obtaining consent regarding the issuance of the visa by the respective authorities. Out of pocket expenses are the expenses that are to be spent without a possibility to get it back. Both of the terms are used to spend money for the fulfilment of certain work. In this case, the company wanted to disburse a certain amount to you regarding the subclass visa.

The process of the visa by the agent is governed by the Migration Agent Regulation Act 1998 (MARA). There are certain provisions mentioned under the Code of Conduct for the migration agent. There are certain provisions mentioned under Migration Act 1958. It is a mandatory provision under the Migration Act that an agent must be registered. Therefore, these provisions are regulated the activities of migration agent.

Concluding, I am sure that you will follow all the criteria regarding the issuance of subclass visa from the Department of Immigration and Border Protection and complete all the requirements as and when necessary.

Regards,

Question 2

There are certain provisions mentioned under the Migration Act 1958 that specifies the rules for the validity of a proper class of visa. In the present case, there is a case regarding the subclass visa are described. Generally, there are two sections that are deals with the requirements for the validity of the visas. A problem arises here in the case that the applicant told the migration agent that she had not paid fully for the visa and it was after four months of the lodging for the application. There are certain provisions mentioned in the Migration Act and in the Migration regulation that stated that all the procedures are needed to be met properly. Here in the case, a dilemma has been made in between the Jeffrey and the visa holder regarding the non-payment for the visa. The situation is attracted the provision of the code of conduct with an intention to deal with the problem.

It has been mentioned under the code of conduct that every agent, who are registered under the Migration law, should be followed up certain rules that are specified under the code. The code has regulated the conducts or the ethics of the agents and there are certain grounds that are providing a full statement regarding the behaviour of the agent to the customer. It has been stated under the Code that the agent must act diligently with the customer and should not violate the provision of the Code and the Migration Act 1958. However, there is another situation cropped up here in the case. The applicant has confessed that she failed to meet the total amount of money payable for the visa and the company also knows the facts.

There are various provisions mentioned under the code of conduct regarding the customer agent relationship and it has been stated that the agent must keep the confidential nature of the transaction if any and maintain a record regarding the financial criteria of the same. In the code of conduct there is a provision that stated that the agent should have certain information on the customer’s accounts and in case where a situation regarding the money has been cropped up, the agent has every right to disburse certain amount from the accounts of the customer. However, in such case, the agent must maintain all the necessary documents and should serve the customers a copy of it. The registered agent can keep an account to operate the expenses and if there is a necessity, the agent can disburse money from that account and send all necessary documents and copy of the same to the customers and the related company.

All that is necessary for meeting the criteria is that the agent must fulfil all the requirements of the Migration Act 1958. He must act in good faith and maintain a good relationship with the customers. In certain situation, if there is a dilemma arose, the agent must take the assistance given in the Code of Conduct and should not violate the provisions of the same. Therefore, it can be stated that the registered agent should have to meet all the obligations mentioned in the Code of Conduct in case of dealing with the customers.

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