Commonwealth Numbered Regulations

MIGRATION AGENTS REGULATIONS 1998 No. 53 - SCHEDULE 2

                           SCHEDULE 2                 Regulation 8

CODE OF CONDUCT
Migration Act 1958, subsection 314 (1)
THIS CODE OF CONDUCT SHOULD BE DISPLAYED PROMINENTLY IN
THE AGENT'S OFFICE. IF A CLIENT BELIEVES THAT A MIGRATION AGENT HAS ACTED IN
BREACH OF THIS CODE OF CONDUCT, A COMPLAINT CAN BE MADE IN WRITING TO:
MIGRATION AGENTS REGISTRATION AUTHORITY PO BOX K366 HAYMARKET NSW 1240
PART 1-INTRODUCTION 1.1 The Code is intended to regulate the conduct of
migration agents. 1.2 The Migration Agents Registration Authority (the
Authority) is responsible for administering the Code. 1.3 A person who wants
to operate as a migration agent must register with the Authority. 1.4 The Code
applies to an individual who is listed in the Register of Migration Agents
kept by the Authority under section 287 of the Migration Act 1958 (the
Migration Act). 1.5 To ensure compliance with the Code, the Authority may
impose an administrative sanction if a breach of the Code is found to have
occurred. 1.6 An administrative sanction may range from a warning through to
suspension of registration or the ultimate sanction of cancellation of
registration. 1.7 Accordingly, the Code does not impose criminal sanctions.
1.8 However, there are a number of offences under the Migration Act and
Migration Regulations that also deal with the kind of activity covered by the
Code. These activities include misleading statements and advertising,
practising when unregistered and misrepresenting a matter. Provisions of the
Crimes Act 1914 and the Trade Practices  Act 1975 may also apply to these
activities. 1.9 The Code is not intended to displace any duty or liability
that a migration agent may have under the common law, or the statute law of
the Commonwealth, a State or a Territory, in relation to a matter covered by
the Code. The provisions of the Code should be read in the light of this
principle. 1.10 The aims of the Code are:

   (a)  to establish a proper standard for the conduct of business as a
        migration agent;

   (b)  to set out the minimum attributes and abilities that a person must
        demonstrate to perform as a migration agent under the Code, including:

        (i)    being of good character;

        (ii)   knowing the provisions of the Migration Act and Migration
               Regulations, and other legislation relating to migration
               procedure, in sufficient depth to offer sound and comprehensive
               advice to a client, including advice on completing and lodging
               application forms;

        (iii)  completing continuing professional development as required by
               the Migration Agents Regulations 1998;

        (iv)   being able to perform diligently and honestly;

        (v)    being able and willing to deal fairly with clients;

        (vi)   having enough knowledge of business procedure to conduct
               business as a migration agent, including record keeping and
               file management;

        (vii)  properly managing and maintaining client records;

   (c)  to set out the duties of a migration agent to a client, an employee of
        the agent, and the Commonwealth and its agencies;

   (d)  to set out requirements for relations between agents;

   (e)  to establish procedures for setting and charging fees by migration
        agents;

   (f)  to establish a standard for a prudent system of office administration;

   (g)  to require a migration agent to be accountable to the client;

   (h)  to help resolve disputes between a migration agent and a client. 1.11
        The Code does not list exhaustively the acts and omissions that may
        fall short of what is expected of a competent and responsible
        migration agent. 1.12 However, the Code imposes on a migration agent
        the overriding duty to act at all times in the lawful interests of the
        agent's client. Any conduct falling short of that requirement may make
        the agent liable to cancellation of registration.
PART 2-STANDARDS OF PROFESSIONAL CONDUCT 2.1 A migration agent must always:

   (a)  act in accordance with the law and the legitimate interests of his or
        her client; and

   (b)  deal with his or her client competently, diligently, fairly and
        without any conflict of interest that would affect the legitimate
        interests of the client. 2.2 If a migration agent:

   (a)  gives advice of a non-migration nature to a client in the course of
        giving immigration assistance; and

   (b)  could receive a financial benefit because of the advice; the agent
        must tell the client in writing, at the time the advice is requested
        or given, that the agent may receive a financial benefit. 2.3 A
        migration agent's professionalism should be reflected in a sound
        working knowledge of the Migration Act and Migration Regulations, and
        other legislation relating to migration procedure, and a capacity to
        provide accurate and timely advice. 2.4 A migration agent must have
        due regard to a client's dependence on the agent's knowledge and
        experience. 2.5 A migration agent must take appropriate steps to
        maintain and improve his or her knowledge of the Migration Act and
        Migration Regulations, and other legislation relating to migration
        procedure, and keep that knowledge up to date, including:

   (a)  maintaining a library containing the latest version of the
        Migration Act, Migration Regulations and other legislation relating to
        migration procedure, and the Procedures Advice Manual;

   (b)  undergoing a written or oral examination, or both, when appropriate.
        Note An agent must satisfactorily complete the requirements prescribed
        by the Migration Agents Regulations 1998 for continuing professional
        development. 2.6 To the extent that a migration agent must take
        account of objective criteria to make an application under the
        Migration Act or Migration Regulations, he or she should be frank and
        candid about the prospects of success when assessing a client's
        request for assistance in preparing a case or making an application
        under the Migration Act or Migration Regulations. 2.7 An agent who is
        asked by a client to give his or her opinion about the probability of
        a successful outcome for the client's application should not hold out
        unsubstantiated or unjustified prospects of success when advising
        clients on applications under the Migration Act or Migration
        Regulations. 2.8 A migration agent must:

   (a)  within a reasonable time after agreeing to represent a client, confirm
        the client's instructions in writing; and

   (b)  act in accordance with the client's instructions; and

   (c)  keep the client fully and regularly informed in writing of the
        progress of each case or application that the agent undertakes for the
        client; and

   (d)  within a reasonable time after the case or application is decided,
        tell the client in writing of the outcome of the client's case or
        application. 2.9 While a migration agent cannot be responsible for
        misinformation provided by a client, an agent must not make statements
        in support of an application under the Migration Act or Migration
        Regulations, or encourage the making of statements, which he or she
        knows or believes to be misleading or inaccurate. 2.10 A migration
        agent must not engage in false or misleading advertising, including
        advertising in relation to:

   (a)  the agent's registration as a migration agent; or

   (b)  the implications of Government policy for the successful outcome of an
        application under the Migration Act or Migration Regulations; or

   (c)  guaranteeing the success of an application. 2.11 A migration agent
        must, when advertising, include in the advertisement the words
        Registered Migration Agent Number, followed by the agent's individual
        registration number. 2.12 A migration agent must not, when
        advertising, imply the existence of a relationship with the Department
        of Immigration and Multicultural Affairs (the Department) or the
        Authority, for example by using terms such as:

   (a)  Australian Government registered; or

   (b)  Migration Agents Registration Authority registered; or

   (c)  DIMA registered. 2.13 A migration agent may indicate that he or she is
        registered, and may describe what the registration process involves.
        2.14 However, a migration agent must not portray registration as
        involving a special or privileged relationship with the Minister,
        officers of the Department or the Authority, for example to obtain
        priority processing, or to imply that the agent undertakes part or
        full processing for the Department. 2.15 A migration agent must not
        intimidate or coerce any person for the benefit of the agent or
        otherwise. For example, an agent must not engage in any of the
        following:

   (a)  undue pressure;

   (b)  physical threats;

   (c)  manipulation of cultural or ethnic anxieties;

   (d)  threats to family members in Australia or overseas;

   (e)  untruthful claims of Departmental sanctions;

   (f)  discrimination on the grounds of religion, nationality, race,
        ethnicity, politics or gender. 2.16 A migration agent with operations
        overseas may indicate that he or she is registered in Australia, but
        should not create an impression that registration involves
        accreditation by the Commonwealth Government for work overseas for the
        Commonwealth or for a client. 2.17 A migration agent must not
        encourage the lodgement of vexatious or grossly unfounded applications
        under the Migration Act or Migration Regulations, for example
        applications under the Migration  Act or Migration Regulations which
        have no hope of success. 2.18 A migration agent must act in a timely
        manner if the client has provided all the necessary information and
        documentation in time for statutory deadlines. For example, in most
        circumstances an application under the Migration Act or Migration
        Regulations must be submitted before a person's visa ceases to be in
        effect. 2.19 Subject to a client's instructions, a migration agent has
        a duty to provide sufficient relevant information to the Department to
        allow a full assessment of all the facts against the relevant
        criteria. For example, an agent should avoid the submission of
        applications under the Migration Act or Migration Regulations in a
        form that does not fully reflect the circumstances of the individual
        and prejudices the prospect of approval. 2.20 A migration agent must:

   (a)  find out the correct amount of any visa application charge and all
        other fees or charges required to be paid for a client's visa
        application under the Migration Act or the Migration Regulations; and

   (b)  tell the client the amount of each fee and charge; and

   (c)  if the agent is to pay an amount for the client-tell the client the
        date by which the amount must be given to the agent so that the
        interests of the client are not prejudiced; and

   (d)  give the client notice of each amount paid by the agent for the
        client. 2.21 A migration agent should not submit an application under
        the Migration Act or Migration Regulations without the specified
        accompanying documentation. For example, in a marriage case, threshold
        documentation would include a marriage certificate and evidence that
        the sponsor is an Australian citizen, an Australian permanent resident
        or an eligible New Zealand citizen, without which assessment of the
        case could not proceed (unless the agent has a reasonable excuse or
        the client has requested the agent to act despite incomplete
        documentation). 2.22 If a migration agent ceases to be employed as a
        voluntary worker for a community-based advisory organisation and
        enters into practice as a sole proprietor, member of a partnership or
        corporation, or as an employee of a partnership or corporation, he or
        she must tell the Authority of this change of status when his or her
        registration is renewed or he or she applies for repeat registration.
        2.23 A migration agent must take all reasonable steps to maintain the
        reputation and integrity of the migration industry. 2.24 This Code is
        a responsive document that will change from time to time to meet the
        needs of clients and to ensure the delivery of relevant, up to date
        advice.
PART 3-OBLIGATIONS TO CLIENTS 3.1 A migration agent has a duty to preserve the
confidentiality of his or her clients. 3.2 A migration agent must not
disclose, or allow to be disclosed, confidential information about a client or
a client's business without the client's written consent, unless required by
law. 3.3 A migration agent must inform clients that they are entitled to
receive copies of the application under the Migration Act or Migration
Regulations and any related documents if they want copies. The agent may
charge a reasonable amount for any copies provided. 3.4 A migration agent must
have an address and telephone number where the agent can be contacted during
normal business hours. 3.5 If the agent changes his or her address, telephone
number or any other details that are recorded on the Register of Migration
Agents, the agent must give notice to the Department, the Authority, any
review authority and all current clients of the agent:

   (a)  in advance; or

   (b)  not later than 7 days after the change or changes if advance notice
        would be unreasonable in the circumstances. 3.6 A migration agent must
        ensure that clients have access to an interpreter if necessary.
PART 4-RELATIONS BETWEEN AGENTS 4.1 Before accepting immigration work, a
migration agent must consider whether he or she is qualified to give the
advice sought by the client. If the agent is unsure, he or she should seek the
appropriate advice or assistance, or refer the matter to another migration
agent. 4.2 A referral may be made, for example, if the agent is asked for
advice on matters for which he or she does not regularly provide immigration
assistance. 4.3 A migration agent must not encourage another agent's client to
use the first agent's services, for example by denigrating other agents or
offering services that the first agent cannot, or does not intend to, provide.
4.4 A migration agent must not take over work from another agent unless he or
she receives from the client a copy of written notice by the client to the
other agent that the other agent's services are no longer needed. 4.5 A
migration agent must act with fairness, honesty and courtesy when dealing with
other agents. 4.6 A migration agent who gives a written undertaking to another
agent must make sure the undertaking is performed within a reasonable time, if
possible.
PART 5-FEES AND CHARGES 5.1 There is no statutory scale of fees. However, a
migration agent is expected to set and charge a fee that is reasonable in the
circumstances of the case. 5.2 A migration agent must:

   (a)  before starting work for a client, give the client an estimate of fees
        in the form of charges for each hour or for each service, and an
        estimate of time likely to be taken in performing a service; and

   (b)  as soon as possible after receiving instructions, obtain written
        acceptance by the client, if possible, of the terms of the work to be
        done; and

   (c)  give the client written confirmation of the terms of the service to be
        rendered; and

   (d)  give the client written notice of any material change to the estimated
        cost of providing a service, and the total likely cost because of the
        change, as soon as the agent becomes aware of the likelihood of a
        change occurring. 5.3 A migration agent:

   (a)  should not carry out work in a manner that unnecessarily increases the
        cost to the client; and

   (b)  should, if outside expertise is to be engaged and the client agrees,
        fully inform the client of the likely extra cost; and

   (c)  should, especially if a solicitor or barrister, warn clients of
        possible delays and likely cost involved in pursuing a particular
        course of action before tribunals and in the courts, for example:

        (i)    any need to engage and pay expert witnesses;

        (ii)   the need to meet legal costs if a case were lost;

        (iii)  the need to pay Departmental fees and charges;

        (iv)   the need to pay translation and interpreter fees and charges.
               5.4 A migration agent should advise clients of the method of
               payment of fees and charges, including Departmental fees and
               charges.
PART 6-RECORD KEEPING AND MANAGEMENT 6.1 A migration agent must maintain
proper records that can be made available for inspection on request by the
Authority, including files containing:

   (a)  a copy of each client's application; and

   (b)  copies of each written communication between:

        (i)    the client and the agent; and

        (ii)   the agent and any relevant statutory authority; and

   (c)  file notes of every substantive or material oral communication
        between:

        (i)    the client and the agent; and

        (ii)   the agent and an official of any relevant statutory authority.
               6.2 A migration agent must keep all documents to which a client
               is entitled securely and in a way that will ensure
               confidentiality while the agent is giving services to the
               client and until the earlier of:

   (a)  2 years after the date of the last action on the file for the client;
        or

   (b)  when the documents are given to the client or dealt with in accordance
        with the client's written instructions. 6.3 A migration agent must
        respond to a request for information from the Authority within a
        reasonable time specified by the Authority.
PART 7-FINANCIAL DUTIES 7.1 A migration agent must keep separate accounts for:

   (a)  the agent's operating expenses (the operating account); and

   (b)  money paid by clients to the agent for fees and disbursements (the
        clients' account). 7.2 A migration agent must hold fees paid by a
        client in the clients' account until the work that the agent has been
        contracted to do for that client has been completed. 7.3 The agent
        may, at any time, withdraw money from the clients' account for
        disbursements that are required to be paid to the Department, or any
        other agency, for the client. 7.4 A migration agent must keep records
        of the clients' account, including:

   (a)  the date and amount of each deposit made to the clients' account,
        including an indication of the purpose of the deposit and the client
        on whose behalf the deposit is made; and

   (b)  each withdrawal made from the clients' account; and

   (c)  receipts for any payments made by the client to the agent; and

   (d)  copies of invoices or accounts rendered in relation to the account.
        7.5 A migration agent must make the records of the clients' account
        available for inspection on request by the Authority. 7.6 Nothing in
        clause 7.1, 7.2, 7.3 or 7.4 affects the duty of a migration agent, who
        is also a legal practitioner and who acts in that capacity, to deal
        with clients' funds in accordance with the relevant law relating to
        legal practitioners.
PART 8-DUTIES OF AGENTS TO EMPLOYEES 8.1 A migration agent has a duty to
exercise effective control of his or her office for the purpose of giving
immigration advice and assistance. 8.2 A migration agent must properly
supervise the work carried out by staff for the agent. 8.3 All immigration
assistance must be given by a registered migration agent. 8.4 A migration
agent must make all employees, including those not involved in giving
immigration assistance (for example receptionists and typists), familiar with
the Code, for example by:

   (a)  displaying the Code prominently in the agent's office;

   (b)  establishing procedures to ensure that employees become familiar with
        the Code including supplying employees with copies of the Code. 8.5 A
        migration agent should ensure that his or her employees are of good
        character and act consistently with the Code in the course of their
        employment.
PART 9-COMPLAINTS 9.1 A migration agent must respond properly to a complaint
by a client about the work or services carried out by the agent or the agent's
employee. 9.2 A migration agent must submit to the procedures for mediation as
recommended by the Authority about handling and resolving complaints by the
client against the agent.
PART 10-TERMINATION OF SERVICES 10.1 A migration agent must complete services
as instructed by a client unless:

   (a)  the agent and client agree otherwise; or

   (b)  the client terminates the agent's instructions; or

   (c)  the agent terminates the contract for just cause and gives reasonable
        written notice to the client. 10.2 A migration agent must not
        unreasonably withhold from a client documents belonging to the client
        or given to the agent by the client. If documents are withheld, their
        value should be proportional to the amount still owed to the agent by
        that client under the contract (including any agreed variation or
        extension of the contract). 10.3 Australian passports, and most
        foreign passports, are the property of the issuing Government and must
        not be withheld. 10.4 Clause 10.2 does not imply that an agent has a
        right to withhold documents (that is, a lien over the documents). 10.5
        On completion of services, the agent must, if asked by the client,
        give to the client all the documents:

   (a)  given to the agent by the client; or

   (b)  for which the client has paid. 10.6 If the client terminates the
        instructions, the agent must take all reasonable steps to deliver all
        documents quickly to the client or any other person nominated by the
        client in writing. If the agent claims a lien on any documents, the
        agent must take action to quantify the amount claimed and tell the
        client in a timely manner. Note 1 The question whether, in a
        particular case, an agent has a lien over documents is a matter for
        the law of the relevant State or Territory. If in doubt, a client
        should seek independent legal advice. Note 2 A document includes an
        application, nomination, sponsorship, statement, declaration,
        affidavit, certificate or certified copy. See
        Acts Interpretation Act 1901 s 25, Migration Regulations regulation
        5.01.