The letter is to address you so that you become aware about the ethical, procedural and accounting requirements which are necessary for a migration agent while providing assistance to clients. The advice is particularly related to the requirements of a Work Skilled Temporary Subclass 457 visa. All agents which have gained due registrations under Migration Agent Registration Authority in Australia are bound to abide by the provisions of Migration regulating legislations namely:
- The migration Act 1958
- The Migration Regulations 1998
In addition a code of conduct has been established by Schedule 2 of the Migration Regulations 1998 with authority from Section 314 of the MA. The duty to abide by such code has also been provided under this section. The code sets out specific Actions which are imposed on the migration agents as obligations, however there is no sanction imposed by the code of conduct on the agents as per Section 1.7 of the Code. However the provisions of the Trade Practices Act 1974, the Criminal Code Act 1995 and Crimes Act 1914 may be applicable on the a few activities such as misleading statements, unregistered practices and misrepresentation as per section 1.8 of the code. In addition any liability or duty which is imposed in the agents through the provisions of common law is also not displaced by the code.
Firstly a migration agent in Australia has to know about their ethical requirements under the code of conduct. The code of conduct through its section provides that it is the duty of a migration agent to act in a manner which would ensure the best possible outcomes for the clients and prioritize the existing provisions of the MA and MR in case of any conflict as per section 2.1 of the code. It is also the duty of Migration agent to be aware of the current versions of the MA and MR along with any other legislation related to procedure of migration. There must be no intimidation on coercion on the part of the migration agent on the clients for any personal benefits.
Section 313 of MA rules that, a “Statement of Service” mandatorily has to be provided to the clients when an agent takes the responsibility of providing migration assistance to the clients. The statements contain a detailed summary of all the services which would be provided to the clients in relation to all the services which would be provided by the agent to the clients in relation to migration assistance. Thus in the present case Jeffery has to provide to Wood Engineering all the services he is going to provide them in relation to Work Skilled Temporary Subclass Visa 457. If such statement is not provided by you to the clients you will not have any right to claim any money from the clients in relation to the visa assistance. The statement of services must also contain details about all the costs which would be required by the client to pay including the details of all disbursements and out of pocket expenses such as police certificates, health assessment costs and the fee of skill assessment.
There is no cap imposed on the fees which an agent may charge for the assistance provided by him or her. However the code imposes an obligation of the agents that the fee which is charged by them has to be fair and reasonable about. The fees of the agents may vary in accordance with the situation of the visa application and the experience of the migration agent. The fee may also include any additional service which is to be provided by the agent but such services have to be mentioned in the statement of services. In addition you have to provide the MARA with information related to the amount of fees charged by you every year for different types of visas. As provided by the MARA the normal fee which is charged by a migration agent varies from $1800-5000 when it comes to assistance regarding Work Skilled Temporary Subclass 457 visa.
In addition to the statement of services it is recommended that a “client’s account” is created for the purpose of transaction with Wood Engineering. This account is in control of the client however it is not the same as the personal account or business account of the client as the agent may take out money from this account as and when needed for the visa application. However the agent may only charge his fee from the account when all duties related to the visa has been discharged by the agent.
It is a duty of the migration agent to inform the department of immigration that a visa assistance is being provided by them to a client as soon as the agent and the client reach an agreement on the statement of services as provided by section 312A of the MA. The notification has to be provided through the due completion of Form 956 by the agent. In addition a copy of the code of conduct also has to be provided to the clients also with knowledge about their rights by the migration agent.
As provided by regulation 6B of the MR a professional indemnity insurance has to be mandatorily kept in place by the agent so that any loss which may be incurred to while providing migration assistance to the client is insured.
A subclass 457 visa allows a non-resident to come and work in Australia for a specific period. In order to get this visa the visa applicant has to be sponsored by an approved Australian business. The business has to further nominate the person for a vacancy in their organization and the applicant has to have the skill required to fill up the vacancy. The visa is granted for a period 4 years based on the skills of the applicant. As of from 1st July 2017 the requirement of knowledge of English language is compulsory for the visa applicants. The applicant also needs a penal clearance certificate of for the application of the visa along with mandatory skill assessment done by The Department of Education and Training’s Trades Recognition Australia.
The basic charges for the application of subclass 457 visa by a person in or outside Australia is $1080. The approved business has the duty to fill up Employee Sponsored Work Form 1196. Wood engineering in order to properly fill up this form would require information like the Australian Business Number, Australian Investment and Security Commission documents and the Australian Registered Body Number. Josephine in this case has to duly fill and submit employer sponsored worker form 1066 online for the purpose of a subclass 457 visa.
Josephine has to be made aware that conditions 8107 and 8501 are applicable on those who hold a subclass 457 visa. According to the conditions Josephine does not have the authority to engage in any other work to earn money other than what has been approved by the sponsoring business organization. A few documents have to be submitted by the Josephine for the purpose of the visa application which includes qualification certificates, references obtained from any previous employer, skill assessment results, licenses, educational qualification history and penal clearance certificates. If the visa is granted to Josephine she would be eligible to get in and out of Australia any time till the visa is valid she also has the right to bring her family to Australia for education or stay. However a no further stay condition is also applicable on a person holding a subclass 457 visa according to which a person must leave Australia as soon as the visa expires.
It is the duty and a legal obligation of all individuals making a visa application for stay in Australia to provide the most accurate information for the purpose of the visa application to the department of Immigration and Border protection. Thus the applicants must not provide any information which is not correct to the agents for the purpose of the visa application. The MA has set out several provisions which ensure that true and accurate information is provided by the agents and visa applicants to the department. Further it is the duty of the migration agent to work for the benefits of their clients but in doing so they must always priorities the law of the land. In addition according to section 2.9 of the code of conduct which imposes a duty of care on both the agent and the department the agent must not support any visa application which they believe to be inaccurate of misleading. They must also ensure that the visa applicants do not indulge in making any misleading application by not approving them.
Migration Act Section 48 provides that if the department cancels the visa application of a person for the reason of providing false or inaccurate information the applicant would not be allowed to apply for most of the Australian visas again. Migration Act section 101 imposes the responsibility on all visa applicants to fill out the application in a way where no misleading or false information is provided to the department. Further section 109 of the MA provides authority to the mister of immigration to cancel any visa application if it includes inaccurate and misleading information.
Even if the visa applicant has not provided misleading or false information intentionally they cannot be exempted under provisions of the section. The defense that the migration agent was liable to provide correct information to the department on behalf of the clients is also not considered by the courts. However if the client had provided correct information to the agents the agents can be liable for negligence. The concept was broadly discussed in the case of Trivedi v Minister for Immigration and Border Protection where the court ruled that no knowledge on the part of the applicant providing false information to the department cannot prevent visa cancellation.
Thus in this case the visa application of Josephine would get cancelled if the department finds out that the wages provided in the application are less than the actual wages paid to the applicant. Jeffery in order to act in the best interest of Wood Engineering and Josephine and to act in accordance to law must make them aware of the consequences of the wrong information and get the information corrected. In case the company does not wish to change the ages than it is also the duty of Jeffry to inform the department that false information has been provided.
Austlii (2017) <
Crock, Mary, and L. A. Berg. Immigration, refugees and forced migration: law, policy and practice in Australia. Federation Press, 2011.
Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford University Press, 2014.
Migration Act 1958
Migration Regulations 1998
Temporary Work (Skilled) Visa (Subclass 457) (2017) Border.gov.au <
Trivedi v minister for immigration and border protection2014 FCAFC 42 (4 April 2014)