Assessment Of Non-Compliance Of Migration Agent Under Migration Act 1958 In Essay.

1. Whether the Agent has complied with the Code of Conduct in accordance with sections 303(1)(h) and 314(1) of the Act regarding the provision of immigration assistance provided to SPPL and SY?

2. Should the Authority be satisfied that the Agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance pursuant to section 303(1)(f) of the Act? 

3. If so satisfied that the Agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance pursuant to section 303(1)(f) of the Act, should the Authority caution, suspend or cancel the Agent’s registration? 

1. The default or non-compliance of Tarik Georges relating to code of conduct of Migration Act 1958 has been accepted by Migration Solutions Pty Ltd. However, as a principal, I wanted to bring notice to you the fact that non-compliance has been made by the agent to some extent only and same have been discussed below in detail in order to take an appropriate decision relating to the migration agent:

Making a decision in the best interest of the client, the prospect of success and dependency on Client

According to the clause, 2.8 of registered migration agent should verify the instruction in written with the client he is representing in a reasonable period of time consequent to an agreement. Subsequently, operating according to the directions given by clients. Further, keep clients notified in writing of the progress of every case or submission which is exercised by the agent for their client. The agent should inform its client about the outcome of the case or submission in a reasonable time when the case or submission is decided.

In the present case, the agent has not provided the facts relating to the closure of business as the same would have negatively affected the acceptance of application of visa. Moreover, as previously also the operations were closed but they were initiated again. Thus, a perception was made by the agent that things worked out as previously and he made a decision to attain other details and documents from the client.  Clause 2.1 states that agent is required to enact in the interest of the client. However the same has been followed by the agent. But clause 2.6 and 2.7 requires that agent should candid relating to the success of prospect application however it should not force submission of an application.

It can be assessed that the agent made a decision after considering the interest of the client. However he did not make any attempt to reassess the verification of claim of SY’s immigration pathway and other available options. Moreover, it is not appropriate to take a decision without any further investigation in case the same result into a negative impact for visa application.

With accordance to the clause 2.1A of the Registration Migration Agent (RMA) it should not allow an individual as a client in case he has any of the following vested interests:

• The agent had past dealing with the individual or plans to help that individual, in the agent’s ability as a marriage pastor.
• The presence of any other interest of the agent which can influence the legitimate interest of the client.

Clause 2.1 B specifies that if it has become clear that registration migration acquires conflicts of interest which are stated in clause 2.1A corresponding to the client than agent should consider the following requirement of its clients within 14 days:

1. Inform clients regarding conflict of interest.
2. Suggesting clients that with accordance to the code, he cannot act for him.
3. Recommending the client to hire someone else.
4. Stops to operate for the client in agent’s ability like a registered migration agent.

Answers

In the present case, it was stated by Tarik George, the agent, that he did not consider SPPL as a vigorous client following the finalisation of an issue with them. Further, with matter, it can be considered that the Agent is consigning to the nomination of the manger. Agent’s outlook does not seem to be allocated with SPPL and SPPL is represented as a client of the agent. Two phone calls were made by SPPL to an agent in order to inform that they have closed their business. The agent has informed about this to his client through sending an email prior to the decision had been taken relating to his visa application.

The agent was required to give similar confirmation to SPPL and SY at the time when SY has proclaimed SPPL had resumed its functions. By doing so, the agent may have handled a probable conflict of interest. But Tarik has proceeded according to the claim of SY and in opposition to SPPL’s directions.  Thus, since the conflict of interest between SPPL and SY is very conflictual, Tarik does not succeed in handling the same in appropriate manner as well as fails to comply with clauses 2.1 A and 2.1 B.

With accordance to the specification provided in clause 2.19, it is the responsibility of RMA (Registered Migration Agent) to give adequate pertinent information to the department or reconsider authority to enable a full evaluation of complete information against a relevant criterion. For instance, RMA should evade the acquiescence of application in the Migration Act or Migration Regulation in a form that does not completely imitate the conditions of person and unfairness the prospect of agreement.

Tarik has not informed the department regarding alterations in circumstances that is SPPL has closed its business in the five weeks from the first call received by SPPL until SY’s visa was approved.  Providing the importance of alteration in the circumstances to SY’s visa application, the failure of the agent to supply this data to the Department is a serious lack of compliance with clause 2.19 and migration legislation which obliges visa applicants to inform the department concerning changes in the conditions.

Clause 2.9 prohibits RMAs from giving deceptive details to the department for visa appliance.

Tarik has acquiesced deceptive information to the department by acquiescing employment contract among SPPL and SY in spite of being attentive that SPPL is closed. The same implies a clear and barefaced lack of obedience with the clause.

Divergence of Interest

In accordance with the provision of clause 5.2 registered migration agent are required to provide a contract of fees and services to clients.

Tarik accepts that he did not provide SPPL, a contract relating to services as he had not recognized this was obliged when a client is not giving fees. Further, he also stated that he discuss with other RMAs and has now analyzed that Agreement should be prepared for every client. The non-compliance of the agent to obey clause 5.2 has significantly been a contributory factor in the conflict of interest since the contract would have made the agent more attentive about his duties towards SPPL.

2. The decision of Migration Solution Sydney Pty Ltd relating to assessing that whether the agent is a fit and appropriate person or ‘a person of integrity’ is base on the specified case law  and provision of section 290 of Migration Act. Both the description and qualities are complementary to each other as one relates to the knowledge and experience of agent and other relates significantly to moral qualities and ethics followed by the agent.

Section 290 of Migration Act, 1958 specifies that an applicant should not be registered in case he is not a person of integrity or not fit and proper. A subsection of 1(a) of section 290 asserts that an applicant should not be registered if it is satisfied by MARA that is (Migration Agent Registration Authority) that an applicant is not fit and proper to provide migration assistance. Subsection 2 (a) of section 290 of the act states that in order to consider whether it is satisfied that an applicant is not fit and proper, not an individual of integrity MARA should take into consideration the level of applicant’s acquaintance of migration process.

In case of Shiv Migration Agents Registration Authority [2008] HCA 31, Tribunal made a decision against the agent and registration of Mr Shi was revoked by Migration Agent Registration Authority (MARA). The decision was concluded on the basis of 98 breaches of the agent regarding the code of conduct provided in the Migration Act. This non-compliance was relating to the administration of the office, financial and other records and management of staff. Many of violation of the code consider application regarding protection visas. Moreover, MARA contended that Mr Shi was not an individual of reliability or fit and proper individual to give migration assistance. Mr Shi has applied to the Administrative Appeals Tribunal (AAT) for reconsider of the revoking decision.

Suggestion relating to modification in Circumstances

MARA has appealed to Federal Court of Australia, which has approved its application that the AAT has made an error of law through asking whether, during the making of decision by AAT under September 2005, Mr Shi was proved not to be an individual of reliability or not a fit and proper human being to give migration assistance. Furthermore, he has requested to the Full Court of Federal Court, but the appeal was not approved by many of them. Subsequently, he has appealed to the High Court.  It was embraced by the court that AAT was not constrained to consider evidence of the facts as well as the conditions as they subsisted during MARA’s decision. Moreover, the AAT has the authority to execute all powers, and prudence claimed on MARA through Migration Act Further, most of the individuals embraced that AAT was permitted to entail the restrictions it did when cautionary Mr Shi to lift the prudence. It is provided by Migration Act to caution an agent as well as to specify restrictions to lift the caution and majority alleged that the AAT might execute these authorities.

Their Honours stated to measure fit and proper; the question might be whether inappropriate conduct has taken place, whether it is likely to occur, whether it could be assumed that it will not take place. It is recognised that inappropriate conduct takes place in the agent deteriorating to comply with various sections in the code. Evaluating the risk of the agent not obeying with the code in the future and with what level of confidence this evaluation can be prepared, is through defining a query of judgment rather than fact. Hence, some risk aspects have to be taken into consideration in order to notify this judgement.

Agent conduct can be personified by two styles of non-compliance. Primarily, where he has recognised his rebelliousness, required advice from other immigration agents as to correct process or recognised his own curative action, accepted duty and expressed regret. The same can be proof by stating that he had accepted that he would be provided SPPL with a contract. In the present case, Tarik also recognises that he should have carried out autonomous substantiation of SY’s claim that SPPL has re-commenced its business. Moreover, the parts where he had not complied with the code, he had acknowledged his mistakes from that, stating willingness to perform himself differently in the future and correctly recognized the manner to make sure he will comply with code. With the assistance of same, it can be assessed that it is enough to give confidence that in future Tarik will conduct with the code.

Deceptive Document

Another style of non-compliance is enhanced the cause of apprehension. The same can be explained as where the agent has not succeeded to acknowledge duties for his activities, has repelled blame on SY and retains his position based on a lack of comprehending of migration legislation. Moreover, this was noteworthy in the continuation of operation of the agent to cite it was the duty of SY’s to advise the agent to inform the department about an alteration in conditions or cancellation of visa application. The agent has given grounds behind doing so, and they are he was performing according to the instructions of SY’s, which was inaccurate attributes blame to SY. Tarik also argues that the visa application of SY’s can be revoked on the basis of incorrect information that is given to the agent in the visa application, such a belief displays a basic lack of understanding of immigration legislation.

The soundness of moral character can be concluded by decision held in case law Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12[26]. The specified case specified the quality of integrity as ‘soundness of moral principle, honesty and uprightness ’. Moreover, even Tribunal have asserted that frankness and truth are two main variants in order to assess the moral character. These aspects are to be assessed in evaluating the character of the agent (Tarik) while he was providing services to SPPL and SY and submitting required documents to the department.

The non-compliance of Agent through making SY responsible for the event and not fulfilling the acting in accordance with the decision of SSPL’s instruction. The specified failure cannot be overlooked, and the conduct of this kind did not represent integrity regarding specified matters. However, the same cannot be specified as an embedded character flaw which will ascertain future conduct.

3. Disciplinary actions can be taken only after assessing the seriousness of conduct of agent’s action. In order to assess the same aggravating factors are required to be analysed which will enhance the responsibility of agent along with mitigating variants which will decrease the liability of agent.

The provisions of clause 2.17  that in case the application under Migration Act or Migration Regulations is abominably unfounded such as an application with not the expectation of success, RMA should not support the client to draft the application along with providing suggestions to the clients in writing that the application is repellently groundless. Further, in case the client wants to drafts the application than agent should acquire the written document of advice provided to the client.  

The contract for Fees and Services

It is the responsibility of RMA to appropriate timely action manner in accordance with the instructions are given by the client and to meet up statutory deadlines as per the specification of clause 2.18. For instance, there are many situations where an application has to be submitted prior to the cease of visa according to the Migration Act or Migration Regulations.

Clause 2.19 is related to the duty of the agent to give adequate information to the department or re-examine authority to enable complete evaluation of all the figures related to the pertinent case. For instance, RMA should evade the submission of an application under Migration Regulation or Migration Act in such a manner that does not imitate the conditions of a person and prejudices the view of the agreement. Moreover, RMA should acquiesce to the procedures for mediation as advised through Authority regarding handling and addressing grievances by clients for agents.

In order to take disciplinary action, authority requires assessing compliance with above-specified clauses as well as the behaviour of the agent. The variants which are assessed while analyzing the behaviour are criminal behaviour, behaviour representing unavailability of appropriate knowledge and skill, continue occurrence of inappropriate behaviour and behaviour representing blatant disregard. The agent’s unavailability of knowledge can be referred to as a most vital variant in order to continue position as SY’s visa in an appropriate manner as appropriate information was provided by the client. SY’s visa was not accepted as the details provided by the agent were incorrect, or he did not submit or acted in accordance with the details provided by the client. Even after being aware of the truth, the submission of incorrect information represents his disregard or indifference.

The extreme serious behaviour which is believed to be the reason of cancellation of registration of migration agent is as follows:

• Behaving against SPPL instructions.
• Making expectation from SY relating to guidance to be provided relating to immigration assistance.
• Not to take a decision in the best interest of SY.
• Providing inappropriate advice relating to immigration options regarding success and unavailable applications.
• Making unavailable agreement of service to SPPL

After analyzing the above-specified conduct and action of Tarik, it can be analyzed that the non-compliance is of a moderate nature. Thus, cancellation of registration would be unfair to him. Hence, it can be observed that the SPPL is also responsible to some extent that he did not clarify back after notification of Tarik. Since earlier it was informed that the business is closed and later on there is recommenced of the operations by SPPL, again the business was wind up due to which it was assumed by Tarik that it would recommence again. On the basis of the same assumption, he continues the visa application which was not acceptable as it is the responsibility of Tarik to confirm about the SPPL that they will recommence their business in future and after that also he would continue the application.

Even agent accepted that due to his inexperience he had made some mistakes and he is ready to take responsibility for the mistakes or inappropriate actions taken by him. These steps represent the moral character of an agent which is genuine and committed to upholding the profession. Moreover, no prior complaints relating to agent service are available and event the agent provided an appropriate response to the notice of section 309 provided by the Authority.

In our opinion, as the agent has made a genuine effort in resolving the issues relating to the situation and provided all known facts in an appropriate manner. Even he is ready to make appropriate changes in the manner of providing services; the following mitigating factors are specified so that present non-compliance does not reoccur in future. The agent should be suspended for a reasonable period (eight months to twelve months) along with education and training instructions in order to provide high-level professional service and immigration assistance to its client. Moreover, he is also able to behave in accordance with standards of RMA.

The agent is required to complete ten continuing professional development points in accordance with registered authority. Further, he is required to attend and participate in seminars, workshops, meetings, webinars, training programmes and study towards related degrees, diplomas or certificates. Thus, it is advised that Tarik should join the CPD programme so that he can be trained for the operations and can practice with the help of which the mistakes can be avoided in future. Since it was stated by Tarik that due to his inexperience the mistake was done by him and also guaranteed that he will exercise according to the regulations.

Eventually, the person providing the lessons to the agent should provide a report to the authority relating to his performance so that appropriate decision can be taken. Further, the agent is required to provide a written statement that no service will be provided by him during the suspension period.

Akbari, Arther H. Akbari. and MacDonald, Martha, Immigration policy in Australia, Canada, New Zealand, and the United States: An overview of recent trends (2014).  International Migration Review, 48(3).

Anderson, Brodget. Migration, immigration controls and the fashioning of precarious workers (2014). Work, employment and society, 24(2).

Berg, Laurie, Migrant Rights at Work: Law's precariousness at the intersection of immigration and labour ( Routledge, 2015).

Boon-Kuo, Louise.,. Policing Undocumented Migrants: Law, Violence and Responsibility. (Routledge, 2017).

Búzás, Zoltán I., Evading international law: How agents comply with the letter of the law but violate its purpose2017. European Journal of International Relations, 23(4).

Casarico, Alessandra., Facchini, Giovannie. and Frattini, Tommaso, Illegal immigration: policy perspectives and challenges (2015). CESifo Economic Studies, 61(3-4).

Cox, Damian., La Caze, Margueterite. and Levine, Michael.P.,. Integrity and the fragile self. (Routledge 2018).

Donnelly, Jason, Utilisation of National Interest Criteria in the Migration Act 1958 (Cth)-A Threat to Rule of Law Values (2017). Victoria UL & Just. J., 7.

Dustmann, Christian. ed., Migration: Economic Change, Social Challenge. (Oxford University Press, USA, 2015).

Freckelton, Alan., Administrative Decision-Making in Australian Migration Law. (ANU Press, 2015).

Goldenziel, Jill.I,Australia-migrants-refugees-international refugee law-immigration-offshore detention-human rights-executive power (2016). The American Journal of International Law, 110(3).

High Court considers the nature of administrative review in the Administrative Appeals Tribunal. < https://www.ags.gov.au/publications/express-law/el80.pdf>.  

High Court of Australia,, NELSON GUANG LAI SHI v MIGRATION AGENTS REGISTRATION AUTHORITY. < https://www.hcourt.gov.au/assets/publications/judgment-summaries/2008/hca31-2008-07-30.pdf>.

Hoang, Khanh, Migration law: Of secrecy and enforcement: Australian border force act. LSJ (2015): Law Society of NSW Journal, (14), p.78.

Jacobs, Keith, Experience and representation: contemporary perspectives on migration in Australia. (Routledge, 2016).

Megginson, David. and Whitaker, Vivien ,Continuing professional development. (Kogan Page Publishers, 2017).

Migration Agents Regulations 1998 (18 April 2017). < https://www.legislation.gov.au/Details/F2017C00346>.

Ndhlovu, Finex., Migration, Integration Discourse, Exclusion. In Language (2018). Vernacular Discourse and Nationalisms (pp. 243-290). Palgrave Macmillan, Cham.

Raynor, Danielle. and Hicks Richard, Empathy and coping as predictors of professional quality of life in Australian Registered Migration Agents (RMAs) (2018). Psychiatry, Psychology and Law.

Sarker, Ruhul.Amin.,. Agent-Based Evolutionary Search. (Springer, 2018).

Stevens, Rachel, Immigration Policy from 1970 to the Present. (Routledge, 2016).

Underhill, Elsa., Groutsis, Dimitria., van den Broek, Diane. and Rimmer, Malcolm, Migration intermediaries and codes of conduct: Temporary migrant workers in Australian horticulture (2016.). Journal of Business Ethics.