Update: Code of Conduct - Standards of professional conduct (part 2)

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Update: Code of Conduct - Standards of professional conduct (part 2)


 

A new April 18 2017 version of the Code of Conduct has been release by the Department of Immigration and Border Protection through the office of The Migration Agents Registration Authority.

In Part 11 – Client awareness of the code it states that a least one copy of the Code is displayed prominently in (a) any waiting room or waiting area that is: (i) at the agent’s place of business; and (ii) used by clients; and (b) any office or room in which the agent conducts business with clients.

In this regard, therefore, to express the importance of making the general public aware of the existence of the Code of Conduct here in the Philippines, I will record a video regarding this matter, copy and paste each part of the Code of Conduct on succeeding blogs for the next 11 weeks.

Part 2 – Standards of professional conduct

2.1          A registered migration agent must always:

(a)          act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and

(b)          deal with his or her client competently, diligently and fairly.

However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.

2.1          A             A registered migration agent must not accept a person as a client if the agent would have any of the following conflicts of interest:

(a)          the agent has had previous dealings with the person, or intends to assist the person, in the agent’s capacity as a marriage celebrant;

(d) there is any other interest of the agent that would affect the legitimate interests of the client.

2.1          B             If it becomes apparent that a registered migration agent has a conflict of interest mentioned in clause 2.1A in relation to a client, the agent must, as soon as practicable taking into account the needs of the client, but in any case within 14 days:

(a)          tell the client about the conflict of interest; and

(b)          advise the client that, under the Code, the agent can no longer act for the client; and

(c)           advise the client about appointing another registered migration agent; and

(d)          cease to deal with the client in the agent’s capacity as registered migration agent.

2.1C       Part 10 of the Code then applies as if the client had terminated the registered migration agent’s instructions.

2.1          D             A registered migration agent who has ceased to act for a client in accordance with paragraph 2.1B(d), must, as soon as practicable, but in any case within 14 days, inform the Department that he or she is no longer acting for the client.

2.2          If a registered 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 registered migration agent’s professionalism must 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.

2.3          A             A registered migration agent’s professionalism must be reflected in the making of adequate arrangements to avoid financial loss to a client, including the holding of professional indemnity insurance mentioned in regulation 6B for the period of the migration agent’s registration.

2.4          A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.

2.5          A registered migration agent must:

(a)          take appropriate steps to maintain and improve his or her knowledge of the current versions of:

(i)            the Migration Act 1958; and

(ii)           the Migration Regulations 1994; and

(iii)          other legislation relating to migration procedure; and

(iv)         portfolio policies and procedures; and

(b)          either:

(i)            maintain a professional library that includes those materials; or

(ii)           if the agent’s employer, or the business in which he or she works, maintains a professional library that includes those materials - take responsibility for ensuring that he or she has access to the library.

Note 1: A comprehensive list of the materials mentioned in subparagraphs (a) (iii) and (iv) may be obtained from the Professional Library page of the Authority’s web site (www.mara.gov.au/becoming-an-agent/registration-  requirements/professional-library/ )

Note 2: A registered migration agent must satisfy the requirements for continuing professional development set out in Schedule 1.

2.6          To the extent that a registered migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she must 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          A registered migration 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:

(a)          must give the advice, in writing, within a reasonable time; and

(b)          may also give the advice orally to the extent that the oral advice is the same as the written advice; and

(c)           must not hold out unsubstantiated or unjustified prospects of success when advising clients (orally or in writing) on applications under the Migration Act or Migration Regulations.

2.8          A registered migration agent must:

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

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

(c)           keep the client fully 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          A registered migration 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.

2.9          A             In communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the Authority, whether directly or by withholding relevant information.

2.10        A registered migration agent must not engage in false or misleading advertising, including advertising in relation to:

(a)          the agent’s registration as a registered 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.

Note:    Advertising includes advertising on the Internet.

2.11        A registered migration agent must, when advertising:

(a)          include in the advertisement the words “Migration Agents Registration Number” or “MARN”, followed by the agent’s individual registration number; and

(b)          if the agent is advertising in a language other than English — include in the advertisement words in that other language equivalent to “Migration Agents Registration Number” or “MARN”, followed by the agent’s individual registration number.

Note 1: Advertising includes advertising on the Internet.

Note 2: Clause 2.12, which relates to implying a relationship with the Department or the Authority, also applies to the registered migration agent’s advertising mentioned in clause 2.11.

2.12        A registered migration agent must not, when advertising, imply the existence of a relationship with 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)           Department registered.

Note:    Advertising includes advertising on the Internet.

2.14        A registered 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.

2.14        AA registered migration agent must not represent that he or she can procure a particular decision for a client under the Migration Act or the Migration Regulations.

2.15        A registered migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, a registered migration 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 registered migration agent with operations overseas may indicate that he or she is registered in Australia, but must not create an impression that registration involves accreditation by the Commonwealth Government for work overseas for the Commonwealth or for a client.

2.17        If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:

(a)          must not encourage the client to lodge the application; and

(b)          must advise the client in writing that, in the agent’s opinion, the application is vexatious or grossly unfounded; and

(c)           if the client still wishes to lodge the application — must obtain written acknowledgment from the client of the advice given under paragraph (b).

Note:    Under section 306AC of the Act, the Minister may refer a registered migration agent to the Authority for disciplinary action if the agent has a high visa refusal rate in relation to a visa of a particular class.

2.18        A registered 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 registered migration agent has a duty to provide sufficient relevant information to the Department or a review authority to allow a full assessment of all the facts against the relevant criteria. For example, a registered migration agent must 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.

(c)           Department registered.

Note:    Advertising includes advertising on the Internet.

2.14        A registered 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.

2.14        AA registered migration agent must not represent that he or she can procure a particular decision for a client under the Migration Act or the Migration Regulations.

2.15        A registered migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, a registered migration 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 registered migration agent with operations overseas may indicate that he or she is registered in Australia, but must not create an impression that registration involves accreditation by the Commonwealth Government for work overseas for the Commonwealth or for a client.

2.17        If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:

(a)          must not encourage the client to lodge the application; and

(b)          must advise the client in writing that, in the agent’s opinion, the application is vexatious or grossly unfounded; and

(c)           if the client still wishes to lodge the application — must obtain written acknowledgment from the client of the advice given under paragraph (b).

Note:    Under section 306AC of the Act, the Minister may refer a registered migration agent to the Authority for disciplinary action if the agent has a high visa refusal rate in relation to a visa of a particular class.

2.18        A registered 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 registered migration agent has a duty to provide sufficient relevant information to the Department or a review authority to allow a full assessment of all the facts against the relevant criteria. For example, a registered migration agent must 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 registered 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)          give the client written advice of the amount of each fee and charge; and

(c)           if the agent is to pay an amount for the client — give the client written advice of 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 a written notice of each amount paid by the agent for the client.

2.21        A registered migration agent must 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        A A registered migration agent must, when providing translating or interpreting services, include on a prominent part of the translated document the following sequence:

(a)          the name of the migration agent;

(b)          followed by the words ‘Migration Agent’s Registration Number’;

(c)           followed by the agent’s registration number.

2.22        B A registered migration agent must:

(a)          notify the Authority, in writing, of any changes to the registration details of the agent in relation to any of the following matters:

(i)            the agent’s full name;

(ii)           any business names of the agent or the agent’s employer;

(iii)          the business address for the agent;

(iv)         the telephone number for contacting the agent;

(v)          any of the matters mentioned in paragraphs 3V(a) to (da) of these Regulations; and

(b)          notify the Authority:

(i)            in advance; or

(ii)           not later than 14 days after the change or changes if advance notice would be unreasonable in the circumstances.

2.23        A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.

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.

To download a copy of the Code of Conduct or copy of my book AVOID THE MIGRATION MINEFIELD, Safely migration to Australia from the Philippines, which covers the importance of being aware of the Code of Conduct and using an experienced and qualified registered migration agent in lodging your particular Australian visa application from the Philippines for Australia, just click onto the links provided. Other books and information regarding migration to Australia can be found on our RESOURCES PAGE

May 16, 2017