Jack Tan is a 25 year old citizen of China. He arrived in Australia on a Student (Temporary) (Class TU) visa in January 2015 in order to study Electrical Engineering at Curtin University. His student visa expires at the end of 2018.
David has been a registered migration agent for 12 months. He is a sole practitioner and has specialised in student visas, skilled, and employer sponsored migration.
In April 2018 David was approached by Jack Tan who told him that he has just heard that his father and brother have been arrested by authorities China. Jack’s mother has warned him not to come back to China or he may face arrest as well. Jack asks David to apply for protection for him as a refugee.
At first David said no, because he didn’t have experience in that area of migration law. He had never done an application for a Protection visa and does not keep up to date with developments in this area of migration law. Jack told David that he was the only person he could trust and pleaded with him to do the application. Eventually, David agreed to be his agent in applying for a Protection visa.
Jack is very worried and concerned about what will happen if he has to return to China. David tried to reassure Jack by promising that he will be granted protection and allowed to stay permanently in Australia.
With David’s assistance, Jack applied for a Protection visa in June 2018. The application was refused by the Department of Home Affairs. Jack has made an application for a review to the Administrative Review Tribunal (AAT) and he is waiting for a date for the Tribunal to interview him about his case.
With regard to the Code of Conduct and the Migration Act 1958 the ethical issues raised by David’ actions.
Background
It has been provided by part 2.1 of the code that a migration agent has the duty of always comply with the law and act in the best legal interest of the person they are working for.
Rule
The issue is also to identify the breach of any provisions of the Migrations Act 1958 with respect to the facts of the case.
The issue is to identify whether David have violated the provisions of the Code of Conduct provided by Migration Regulations 1998.
The Migration regulations 1998 provide that all agents who have been listed as registered Migration agents under s.287 of the Migration Act 1958 have to abide by the code of conduct. In case the code of conduct is breach administrative sanctions can be imposed on the agent such as fines and cancellation of registration.
Under code 2.6 of the code of conduct it has been stated that to the degree the agent has to consider objective criteria to launch an application via MA 1958 or MR 1994, they must be candid and frank in relation to the chances of having a successful application when they are assessing the request of the client for preparing a case or launching an application.
Under part 2.3 of the code it has been provided that the professionalism of the agent has to be reflected through a proper working knowledge of the Migration Regulations and migration act and also with other laws in relation to migrations. They must also posses the capacity of providing timely and accurate advice. Under code 2.4 it has been given that it is the duty of the agent to provide consideration to the dependence which the clients have on his or her knowledge and experience. Under code 2.5 the agent is required to enhance and maintain his or her knowledge in relation to the MA 1958, MR 1994 and other migration Laws.
Code 2.7 states that when an agent has been asked by the client to provide his or her opinion with respect to the probability of success of the application, it is the duty of the agent to provide the advice in writing within a reasonable time, or in a way that oral advice is same as written advice and should not provide unjustified or unsubstantiated prospects of the application being successful.
It is the duty of the agent under code 2.8 to keep the client informed about each stage of the application process. Under code 2.14A an agent is not allowed to portray before the client that he would be able to procure a specific decision for the client with respect to the MA 1958 or MR 1994.
It is the duty of the Migration agent under code 2.17 that if the application proposed by the client under the MA 1958 or the MR 1944 is grossly unfounded or vexatious such as having no hope of success, he should not encourage the client to make an application, advice the client about the vexatious of the application and obtain acknowledgement form the client that he has provided him with a contrary advice. It is also the duty of the migration agent under code 2.23 to uphold the integrity and reputation of the migration advice profession.
The Code of Conduct and the Migration Act
It has been provided with respect to the facts that Jack Tan is a citizen of China and is in Australia on a student visa. The visa is to come to an end in 2018. This means that he would have to leave Australia this year once the visa comes to an end. In this situation it has been provided that he has approached David because his brother and father has been arrested in china and he wants a protection visa so that he does not have to go back to China. David is a migration agent but he does not have much expertise in relation to a protection visa, and he had initially refused to provide assistance to John. However he subsequently agreed to assist Jack with the protection visa application.
David has notified Jack that he would be provided with the protection visa. In doing so he has breached the provisions of the code of conduct this is because according to code 2.6 to the degree the agent has to consider objective criteria to launch an application via MA 1958 or MR 1994, they must be candid and frank in relation to the chances of having a successful application when they are assessing the request of the client for preparing a case or launching an application. He has not made a frank disclosure to Jack that the chances of a protection visa to be provided are very law in relation to the circumstances. Further It is the duty of the Migration agent under code 2.17 that if the application proposed by the client under the MA 1958 or the MR 1944 is grossly unfounded or vexatious such as having no hope of success, he should not encourage the client to make an application, advice the client about the vexatious of the application and obtain acknowledgement form the client that he has provided him with a contrary advice. This also has not been done by David and thus he has breached the code. Under code 2.14A an agent is not allowed to portray before the client that he would be able to procure a specific decision for the client with respect to the MA 1958 or MR 1994. However David has portrayed to Jack that he would be provided with the visa and thus have violated this code as well.
It is the duty of the agent under code 2.8 to keep the client informed about each stage of the application process. The facts of the case study do not depict any such situation where David has done the same and therefore he has violated the code.
The code also provides via part 2.3 that professionalism of the agent has to be reflected through a proper working knowledge of the Migration Regulations and migration act and also with other laws in relation to migrations. They must also posses the capacity of providing timely and accurate advice. However it is evident that David was not well versed with the provisions of MR 1958 and MR 1994 with respect protection visa and he was also not able to provide accurate advice to Jack. Under code 2.4 it has been given that it is the duty of the agent to provide consideration to the dependence which the clients have on his or her knowledge and experience. David was also aware that Jack is highly dependent on him for the application and thus he should have disclosed all materials facts to him and by not doing so have violated the code. Under code 2.5 the agent is required to enhance and maintain his or her knowledge in relation to the MA 1958, MR 1994 and other migration Laws. However David is only emphasizing on few areas of the legislation and not the overall law and thus is in violation of the code. While providing inaccurate advice to Jack, David is also violating code 2.23 as it is required to uphold the integrity and reputation of the migration advice profession under the code.
Conclusion
In conclusion it can be stated that various provisions of the code of conduct provided under the MR have been violated by David by assisting Jack in a way which is contrary to the provisions of the code of conduct. The violation may subject him to fines and may also get his registration cancelled.
