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Letter Of Advice To Jeffrey Jacob

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Questions:

1.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.
 
2.What are your Obligations as a registered migration agent under the Code of Conduct?
 
 

Answers:

1.Letter of Advice to Jeffrey Jacob

Introduction

The application of Visas is a fundamental tenet in the Australian Migration jurisprudence; in this respect, it is of utmost prudence to affirm that such applications must be made carefully and diligently. The Visa applicant has to comply with a myriad of procedural, ethical and accounting requirements lest the application be rejected.

The Procedural And Ethical Requirements When Applying For A Class Uc Sub-Class 457 Temporary Business Entry Visa

The requisite parameters that must be regarded by the Jeffrey Jacobs in procuring the Class UC sub-class 457 Temporary Business Entry visa have been elucidated in the various legislations that govern this salient realm. These parameters include: Conversance and compliance with the substantive policies regarding immigration; Operating within the frameworks of the Code of Conduct; Engaging activities that amount to ‘providing assistance’ in respect of Visa application; Registration with the Migration Agents Registration Authority (MARA); and Adherence to the information proffered by the client.

 

Conversance and Compliance with the Substantive Policies

Jeffrey Jacob as a Migration Agent must have an exceptional grasp of the law within which he directs his actions. In the Australian legal system, the legal framework with this regard encompasses The Migration Act of 1958, The Migration Agents Regulations of 1998 and the Code of Conduct of the Migration Agents. Essentially, the aforementioned legislations form the touchstone of Australian migration jurisprudence as they stipulate the various rights and privileges of the parties concerned.[1] It is also salient to point out that substantive policies do not only provide rights and obligations of the agent but also those of the clients.

Registration with the Migration Agents Registration Authority (MARA)

A fundamental procedure that Jeffrey Jacob must comply with is that he has to be registered with the Migration Agents Registration Authority. This requirement has not only been stipulated by the legal instruments such as statutes but it has also been fronted significantly by Australian courts.[2] Upon the registration with MARA, the Migration agent automatically acquires the locus standi to procure and facilitate visa applications for clients; visa applications by such agents are valid and are seldom rejected.

Operating within the frameworks of the Code of Conduct

The Code of Conduct has become such an indispensable part of the Australian Migration Law that it has been incorporated as one of the migration statutes. The Code of Conduct, despite being viewed as ancillary to the other legislations, is a vital aspect of the law since it lays out the ethics and ethos that have to be upheld by the migration agents.

Some of the stipulations of the Code of Conduct with regard to enhancing integrity of agents are enumerated in the following seriatim: The agent is tasked with updating his client in light of the Visa application. This update has to be made regularly and throughout the migration process;[3] Moreover, the agent is expected to give a comprehensive letter of agreement that would encapsulate every pertinent information on their terms of engagement.[4]

 

Engaging activities that amount to ‘providing assistance’

The critical question often begs, ‘Which actions amount to ‘providing assistance’ in so far as visa application is concerned?’ It is generally explicated that a person is deemed to provide assistance when he uses his knowledge and experience with regard to migration procedure to help any other person in a manner that falls within the provisions of the Migration Act.[5]

The Migration Act acknowledges that if the process regards filing a Visa Application or cancellation, it amounts to ‘providing assistance’. Conversely, there arise some technicalities in respect of these processes; if the matter regards Visa application or cancellation without any subsequent comment or explanation it ceases to fall within the definition of ‘providing assistance’; The Migration agents are also required to enlighten their clients with their rights, duties and responsibilities under the Migration Act.[6]

Adherence to and reliance on the information proffered by the client

Another salient parameter that has to be regarded is the fact that it is incumbent upon Jeffrey Jacobs as a Migration Agent to utilize the information proffered upon him by his client in order to extend the most felicitous services to the client. However, Jeffrey Jacobs would not incur liability for any predicaments if the client failed to disclose the requisite or accurate information. It is also noteworthy that the migration agent is not obligated to verify the information that the client proffers to him; the agent is entitled to reasonably presume the veracity of whichever information tendered unto him by the client.[7]

 

Disbursments And Out-Of-Pocket Expenses

Financial Management forms the crux of Migration agreements between Migration agents and their clients. In this respect, the Migration agent should ensure that all terms of engagement that concern pecuniary issues are stated unequivocally. Foremost, it is of tremendous significance for the agent to point the fact that the fee quotation proffered to the client only caters for the professional services extended by the agent; the fee doesn’t cater for any other charges that ought to have been paid by the client.

Consequently, Jeffrey Jacobs must make a point of informing Josephine Ladders that the latter are entitled to pay additional charges that could accrue for various reasons. Such reasons traverse from translation and interpretation services fees to courier charges fees and medical reports fees. These fees are expected to be paid by the client to persons who provide auxiliary services to the agent such as accountants or paralegals.

At some point during the migration process the agent is marred with contingencies that require him to incur some out-of-pocket expenses. These situations may arise in circumstances in which the agent uses the services of other professionals in the course of performing the work of their client such as translators or when they are forced into making some costly phone calls or postal mails. It is such circumstances that necessitate the concept of certainty of terms where the agent is required to inform the client unambiguously of these extra charges. As a matter of fact, Jeffrey Jacobs is entitled to request for these payments even before they are incurred.

2.Obligations Of The Registered Migration Agent Under The Code Of Conduct

In the circumstances, it is overt that Jeffrey Jacobs procured a Visa Application for Josephine Ladders on behalf of Wood Engineers. Wood Engineers subsequently reneged on their contract with Josephine Ladders and paid them an amount that was less than the contractually agreed amount. The obligations of Jeffrey Jacobs as explicated in the Code of conduct in light of these facts would be as follow:

Foremost, the professional advice that Jeffrey Jacobs would proffer to Josephine Ladders must not be contrary to the interests of Wood Engineers since this would be a breach of professional ethics as enumerated in the Code of Conduct. The Migration agent is obligated to give a solution upon a meticulous scrutiny of the facts and upon weighing the ramifications of the decision against the interests of both parties. It is thus vital for Jeffrey Jacobs to call truce between the parties as they seek for an amicable solution.[8]

 


Bearing this in mind, Jeffrey must avoid any caprices that would result in conflict of interest between Wood Engineers and Josephine Ladders. Consequently, he may resolve to stop acting for both parties in order to avoid breaching his professional and ethical obligations.[9] The Australian Courts have also reiterated this position as it was illustrated in the case of Abebe v. Commonwealth, where the court averred that it is unacceptable for the agent to act contrary to the interests of any party.[10]

The Code of Conduct is also crystal clear on the fact that if the Migration Agent accepts and relies upon instructions given by the sponsor as well as those by the visa applicants, the agent should satisfy himself that the parties are aware of the fact that he is acting for both parties.

It is very important for Jeffrey Jacobs as a Migration Agent to discharge his obligations prudently and diligently as elucidated in the Code of Conduct. Failure to discharge these obligations could result in undesired consequences on the part of the agent and also on the part of the client. Most importantly, exercising due diligence while honouring the obligation would enhance the Migration process at large.

 

References

Aronson, Mark, Dyer, Bruce and Groves, Matthew, 2004, Judicial Review of Administrative Action 3rd edition Law Book Co.

Charlesworth, Hilary, Chiam, Madelaine, Hovell, Devika and Williams, George 2003 ‘Deep Anxieties: Australia and the International Legal Order’ Sydney Law Review 25:23

Chisholm, Richard and Parkinson, Patrick 2003, ‘The Immigration Cases’ Australian Journal of Family Law 17:219

Coldrey, Barry 1999, Good British Stock: Child and Youth Migration to Australia, 1901-83 National Archives of Australia

Re Refugee Review Tribunal; Ex parte Aala, (2000) 204 CLR 82

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 168 ALR 407

Abebe v. Commonwealth, (1999) 197 CLR 510

The Australian Migration Act of 1958

The Migration Agents Regulations of 1998

Aronson, Mark, Dyer, Bruce and Groves, Matthew, 2004, Judicial Review of Administrative Action 3rd edition Law Book Co  

Re Refugee Review Tribunal; Ex parte Aala, (2000) 204 CLR 82 

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 168 ALR 407

See Section 2 of the Migration Act of 1958

See Section 46 of the Migration Act of 1958

Charlesworth, Hilary, Chiam, Madelaine, Hovell, Devika and Williams, George 2003 ‘Deep Anxieties: Australia and the International Legal Order’ Sydney Law Review 25:23 

Chisholm, Richard and Parkinson, Patrick 2003, ‘The Immigration Cases’ Australian Journal of Family Law 17:219 

Ibid at 7

Coldrey, Barry 1999, Good British Stock: Child and Youth Migration to Australia, 1901-83 National Archives of Australia

 Abebe v. Commonwealth, (1999) 197 CLR 510

OR

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