7234LAW Establishing And Operating An Ethical Migration Practice : Essay Fountain

Questions:

Scenario 1

Fabrizio is a citizen of Venezuela who came to Australia on a student (Class TU) subclass 500 visa.  Since being in Australia, the situation in his home country has deteriorated, and he tells you that he no longer feels safe returning when he finishes his studies. He explains that he is opposed to the Venezuelan government and is being targeted by its supporters. He asks for your help to apply for a protection (Class XA) subclass 866 visa.

Shortly after meeting with Fabrizio, you are visited by Silvio de Silva, another Venezuelan student in Australia. He tells you that Fabrizio is involved with an organised group who are exploiting the political situation in Venezuela in order to remain in Australia to work. He tells you that Fabrizio has paid $15,000 to middle-men who will develop an on-line profile for him so he appears to be politically active and opposed to the Venezuelan government.

Questions

(a) Should you, as a registered migration agent, inform the Department about what Silvio has told you? 

Scenario continues

Following the visit from Silvio de Silva, you contact Fabrizio and tell him what Silvio has said. Fabrizio denies this and explains that Silvio is supportive of the Venezuelan government and trying to undermine protection claims by those who are opposed.  He confirms his instructions to you to proceed and lodge the protection visa application.

(b) What are your obligations under the Code of Conduct?  

(c) What consequences, if any, might there be for you as a registered migration agent, if Silvio’s allegations are found to be correct?

Scenario 2 

Jen Harding is a registered migration agent with her own practice.  Unfortunately Jen has let her workload get on top of her and is finding it hard to respond to all her clients’ emails and phone enquiries.  In fact, she’s feeling so stressed that she’s closed her practice and cut off her telephone and email accounts without letting any of her clients know.  

Given that Jen’s clients have been unable to contact her, they’ve had to employ other agents to take over their matters and have incurred financial loss as a result.

Questions

Referring to the relevant legislation, and the Code of Conduct, identify and explain:  

  1. How Jen may have breached the Code of Conduct; and 
  2. The power/s that MARA may have to discipline Jen.  

Scenario continues… 

Jen’s registration as an agent lapses before MARA has a chance to act on the complaints that it has received from her clients.  

  1. What power would the MARA have to discipline Jen if she were no longer registered?   

Scenario 3

 

Carole Baskin is a Registered Migration Agent. She owns and operates Aussie Visas!, a migration agency in Melbourne. A few weeks’ ago she spoke on the phone with a new client – a gold mining company with a registered office down the road from Carole’s office. She agreed to assist them to apply for a Subclass 187 Regional Sponsored Migration Scheme visa for one of their overseas employees. The company said it was happy to pay for all aspects of the work, including any sponsorship application; nomination; skills assessment and the visa application. The call concluded with the mining company engaging Carole to undertake the work.

Carole’s only communication with the company was that telephone call a few weeks’ ago when she informed the company’s human resources officer that she will be charging $8,000 (plus $800 as 10% for GST) for professional fees for the work.

Yesterday a work experience student from the mining company suddenly appeared at Carole’s office reception. He gave her a company cheque for $8,800. The cheque was made out in her name and she deposited it in the firm’s general account. She plans to withdraw $3000 of the client’s money as soon as the cheque is cleared next week, because she needs to pay for her dog’s vet fees. She has not yet started work on the client’s matter.

  1. Carole verbally advised of the fees for her work when she spoke to the mining company. What else should she have done in relation to her verbal estimate of costs?
  2. What are Carole’s obligations in relation to the $8,800 given to her by the work experience student? Specifically, what administrative matters should she have attended to in relation to this money when she received the cheque from her client?
  3. When can Carole lawfully access the money for her professional fees and what administrative matters must she complete in order to access the money? 

Refer to relevant legislative provisions in your answers.

 

Answers:

Scenario 1

(a) Material facts:

The material fact in this case is that Fabrizion who is a Venezuelan student who doesn’t want return back to Venezuela after the completion of his study because of the situation of political unrest in Venezuela but another Venezuelan student has accused Fabrizio of doing fraud by leveraging the political situation in Venezuela to Migration Agent.

Issues of Law and Policy: 

The legal issue comes in play as there is legal implication of the information that has been received by the agent in this case.

Rules and Resources: 3.1 of Code of Conduct state that it is the responsibility of the migration agent to uphold the confidential information of the clients. 3.2 states that the migration agent is not allowed providing any information of the client without their written consent. In the ethical standards of MARA section 7.7 discusses about the aspect of confidentiality and discretion.

Arguments (or Application): In this case the information that has been provided by Silvio De Silva is something that the client of the migration agent Fabrizio is not aware of. Thus it is important to take an informed written consent of Fabrizio to disclose this information to the department.

Tentative Conclusion: In conclusion it can be stated that both in terms of code of conduct and ethics there is no need for the Migration Agent to inform it to the department without taking consent from the client.

 

(b) Material facts:

The material fact in this situation is that Migration Agent has confronted Fabrizio of the accusation of bribing that has been made against him. Fabrizio has confirmed that the accusations are false and the Migration Agent can go ahead with the visa application.

Issues of Law and Policy: The issue of law and policy in this section is post there is a confirmation gained from the client of their situation what is the course of action that should be followed by the Migration agent in such situation according to Code of Conduct.

Rules and Resources: 2.8 (b) of the Code of Conduct states that it is the responsibility of the Migration Agent to work as per the instruction of the client. Clause 2.1 (a) of Code of Conduct states that it is the responsibility of the agent to work in legitimate interest of the client. 2.9 of the Code of Conduct state that the Migration regulation forbids an agent to state in favor of a migration application in case they are aware of the fact that it is inaccurate. The presentation of false information can be charged criminally or cause the cancellation of the application according to Section 234 and 245. One more section that is relevant in this section is 2.23 of obligation according to the code of conduct which states that it is the responsibility of the agent to work for the reputation of the profession.

Arguments (or Application): Considering the above conditions it can be stated that the agent can continue to make a non biased opinion regarding the information that has been gained and proceed with the filing of the document in accordance with the process.

Tentative Conclusion: In conclusion it can be stated that there is no reason for the agent to inform any department on the basis of the information provided by Silvio de Silva legally.

 

(c) Material facts:

In case the accusation made by Silvio de Silva is true what possible impact will it have on the Migration Agent.

Issues of Law and Policy: The Migration Agent is a legal profession so in this condition the possible impact that the false action on the part of the client in this situation can have professional practice of the Migration Agent.

Rules and Resources: In case the migration agent is aware of the fact that the information that is provided by the agent is false than Migration Act section 303 can result in one of the punishments which involves caution, suspension or cancellation of the registration of the agent.

Arguments (or Application): Even though in case of knowledge of the client as a migration agent can result in punishment but there are some obligation of the Migration Agent as well. The interest of the client has to be take care by the agent as well. And the agent in this case has confronted the client and has taken their consent for moving forward with the application.

Tentative Conclusion: In conclusion it can be stated that the confrontation of the clients by the Agent and moving forward with the process of application doesn’t results in any form of legal complication on the part of the agent.

 

Scenario 2

(a) Material facts:

The fact in this situation is that Jen Harding is a Migration Agent but has stopped working and even hasn’t provide her clients with any information regarding her stopping the work. This has caused financial losses for her clients.

Issues of Law and Policy: The issue in this case is that is stopping contact all of a sudden a violation of law. The financial losses that are faced by the clients are whose responsibility.

Rules and Resources: 1.12 of the Code of Conduct states that the migration agent should work in the legal interest of the client in all situations.

Clause 2.1 states that the migration agent should work in accordance with the legal provisions and must be fair with the client.

The 2.4 of the code of conduct states that the agent should understand that the client is dependent on the legal advice made by the migration agent

CL 2.23 states that the act of the migration agent should be such that the profession of migration agent and its reputation is being maintained. CL 2.3A states that there should be proper arrangement made by the migration agent to ensure that the client doesn’t faces any form of financial loss.

Arguments (or Application): In this situation Jen Harding has acted in an unprofessional manner which is not even legal. Thus her action can be considered to be the reason of the financial losses that is faced by her clients. Thus she can also be punished for her actions.

Tentative Conclusion: In conclusion it can be stated that there has been an illegal activity that has been done by the Migration agent and there legal measures that can be taken by the customers against the agent for the repayment of the financial losses that are faced by them.

(b) Material facts:

The capacity that MARA has to punish Jen Hardings

Issues of Law and Policy: there are some legal powers that MARA has which can be used by the company for the purpose of punishing such breach of contract of the Agents.

Rules and Resources: The section 7.2.2 of MARA states the contractual duties. One of the duties is that the client should be informed of the situation. 7.2.3 States that the migrant agent will be held liable for the financial loss of client.

Arguments (or Application): The clients of Jen Hardings can recover their financial losses from Jen Hardings by complaining to Mara. Mara has the capacity to redeem the financial losses of the clients from the Agent and compensate the clients with the same.

Tentative Conclusion: So in conclusion it can be stated that there is legal authority in the hand of MARA to take action against Jen Hardings for the activity done by her. The complaints made on the part of the client can result in punishment for her.

(c) Material facts:

In case Jane de registers from being a Migration Agent from MARA does MARA has the capacity to discipline her.

Issues of Law and Policy: the legal capability of MARA once a Migration Agent has left being a Migration Agent. Does the wrong done by the Agent while being a Migration Agent can be used by MARA for punishing even after the Migration Agent have stopped being that? The legal provisions of MARA are the key logic that is of importance.

Rules and Resources: Migration Agents Regulations 1998 Part 3 Div 4A states that MARA has the capability to gain information and also take disciplinary action on former Registered Migration Agent. They can bar registration of such RMA for a period of up to 5 years.

Arguments (or Application): So it can be seen that even when the agent has left the job of being an agent MARA has the capability to discipline the agent. If she leaves being an agent she will be considered as a former agent in which case as well she can be punished.

Tentative Conclusion: In conclusion it can be stated that the migration agent cannot leave being an agent to protect themselves in case they have done something wrong or illegal while working as an agent.

 

Scenario 3

(1) Material facts:

The issue in this case is Carole is a Migration Agent who has made a verbal communication with a prospective employer for the purpose of the service that is to be offered by her.

Issues of Law and Policy: The issue in this case is whether a verbal contract over the telephone can be considered as a valid contract with a customer for a Migration Agent.

Rules and Resources: Section 2.2 of the code of conduct of MARA states that the agent should advice in writing of the financial benefit that they are going to receive during the time an advice is given or taken by the agent. Section 2.8 states that the instruction that is provided by the client should also be given in written as well by the agent after a certain point of time.

Arguments (or Application): In this scenario Carole is a Migration Agent she has conducted a telephone call on the basis of which she has agreed to work for the company and the financial benefits that she is expecting to receive is something that has also been done over the telephone call only. So this can be considered to be a violation of the section mentioned above.

Tentative Conclusion: In conclusion it can be stated that there has been a violation of the law of code of conduct that has been done by Carole the Migration agent in this case.

(2) Material facts:

The money that she has received from the client for her work has been given to her in advance by the student. There is some administrative protocol that has to be followed by an agent at receiving money.

Issues of Law and Policy: The legal issue in this case is can she withdraw the money even before starting to work on the client’s case. These are the administrative matters that she is liable to after the receiving of the text.

Rules and Resources: Section 5.5 of Code of Conduct states that a client is entitled to receive a statement of service before or within 28 days post the payment has been made by the client. Section 7.4 states that agent should ensure that the amount and date of deposit is noted. In case of withdrawal the purpose for which the withdrawal has been made, receipts etc has to be kept by the agent.  

Arguments (or Application): so in this situation Carole should have ensured that a statement of service is provided to the client and at the same time the purpose for which the money is being withdrawn and deposited has to be written by the client.

Tentative Conclusion:

in conclusion it can be stated that there has been a violation of procedures that has been done by Carole who is the migration agent in this case.

(3) Material facts:

 the legal period after which a migration agent can withdraw the fund from their account after a deposit has been made by the client.

Issues of Law and Policy: there are some legal bindings for the withdrawing of payment that is done by a migration agent.

Rules and Resources: Section 5.5 of Code of Conduct states that only after a statement of service is being provided by a client they are entitled to receive fees. The fees can be used by the agent as soon as a service is being provided to the client.

Arguments (or Application): So in this case once the service is being provided Carole can use the fees that are her share. Her share is the charge that she has agreed upon for each of the services that is being offered by her.

Tentative Conclusion: In conclusion it can be stated that the there are some restriction on the using of the fund for personal purposes by migration agents. These rules have to be adhered to by any Migration Agent or legal complications may arise later on.

 

References

Mara.Gov.Au (Webpage, 2020) <https://www.mara.gov.au/media/42408/EthicsToolkit_Navigable_Nov_2011_1_.pdf>

Mara.Gov.Au (Webpage, 2020) <https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf>

“Migration Act 1958”, Legislation.Gov.Au (Webpage, 2020) <https://www.legislation.gov.au/Details/C2018C00337>

“Migration Agents Regulations 1998”, Legislation.Gov.Au (Webpage, 2020) <https://www.legislation.gov.au/Details/F2017C00943>

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