- Internal Code :
- Subject Code : LAWS509
- University : Australian Cathloic University
- Subject Name : Law
Foundations of Ethical Practice - Question 1
Relevant Laws:
- MARA Code of Conduct
- Migration Act, 1958
- Migration Agents Regulations, 1998
Application:
- Ali Behood as well as the RMA, as identified in the application shall be held liable to owe obligation towards the client. The registered agent has to have control over his office and his staff. The work done by the staff has to be directly supervised by the agent. Additionally, the employee of the firm acts as an agent of the principal, in this case, the owner. The undertaking has been signed by Ali and that makes his liable in the eyes of law. The application made to the state records the RMA and he shall also be made liable. Thus, Ali Behood along with the RMA recorded, owe client obligations to Paul.
- The agent is under an obligation to keep a record of all the documents of the client for a minimum of 7 years after the visa has been approved. The address in the records of the firm have to be supplied, and if the client has had a change of residence, then they have to inform the change in the Department of Home Affairs, and the agent has to keep the records updated accordingly.
- Ali Behood should check with the Department of Home Affairs for a change in Paul’s address. If a recorded change is found in the same, then the records of the firm have to be updated, and the new address may be supplied to BSMQ. If no change in address has been made in the Department of Home Affairs, then the address on which the client has been last contacted may be supplied to BSMQ.
- Paul may be contacted and be asked to update his address in case of change and has to submit a copy of all essential documents with the firm or terminate the services of the firm as it has been more than 1 year after the issue of his visa.
Conclusion:
There are no specific legislations that govern the given situations, it can only be decided with the help of guidelines provided by the government and the riles of common law system.
Foundations of Ethical Practice - Question 2
Relevant Laws:
- MARA Code of Conduct
- Migration act, 1958
- Migration Agents Regulations, 1998
Application:
- Since Katrina Moreno was the spouse of the client- Paul, whose documents had been handled by the firm, there is reason to believe that Paul and Katrina are living together, and thus, the firm would be in possession of the address where both the parties reside. If there is enough reason to believe that Katrina is an unlawful non-citizen, then the firm, along with the RMA, are under an obligation to provide all the documents or information that have been asked for, by the minister within the stipulated time. The documents and information asked for should be able to locate the whereabouts of the person. The information/documents may be refused only if the person who is believed to be an unlawful non-citizen turns out to be otherwise, or if the documents and information are not capable enough to locate the whereabouts of the person. The firm may also be excused if they can prove that they are not capable of supplying the information/documents.
- Under the provisions of Part 3[1], the registered agent is under an obligation to safeguard the personal information of the clients, and must not give out the information without the written consent of the client. This information may include the personal details about the client, his business, his residence, etc. However, this duty does not hold good when the information is demanded by the provisions of the law. When demanded by law, the agent is under an obligation to give all the relevant information that has been asked for by the authorities.
Conclusion:
Although the MARA Code of Conduct forbids the disclosure of information related to the client, since the information is required by the law, the firm and the agents are under an obligation to provide it.
Foundations of Ethical Practice - Question 3
Relevant Laws:
- MARA Code of Conduct
- Migration act, 1958
- Migration Agents Regulations, 1998
Application:
Under the interpretation clause[2], section 3(1) of the Act[3] provides that ‘any person to whom the agents agree to provide with immigration assistance, whether the agreement is made in writing or nor, shall be considered as a client of that particular agent.’ If this clause is applied on the given situation, and the facts, considering that the application made by Paul included the application for his wife- Katrina as well, it may be interpreted that the firm was in an oral agreement to represent and advice Katrina as well.
Part 10 of the MARA Code of Conduct specifies that to terminate the agreement between the client and the agent, a written notice has to be sent by the party initiating the termination of the agreement. There was no such tarnation notice initiated by Paul, Katrina, or the firm.
In this particular situation, the claim that Katrina Moreno was not a client of the firm, since there are no written agreements between her and the as the contract was between Paul and the firm would not be accepted by the Court as the application on which advice was provided by the Registered Agents of the firm was inclusive of an application for the grant of sub-class 190 visa to Katrina as well as Paul. Thus, it may be understood that an oral agreement was in place between Katrina and AB Migration, as the firm represented her as well, through the application. Additionally, there was not explicit termination of the agreement, which holds that Katrina is still a client of the firm.
Conclusion:
Paul and Katrina both have to be considered as clients of AB migration as both have been represented in the application through the firm, although the written agreements and payments have the signature of Paul on them.
Foundations of Ethical Practice - Question 4
The mail written is as follows:-
Dear Mrs. Moreno,
In response to the mail received by us from your end, we regret to inform you that we shall not able to provide the contact details of Mr. Paul Moreno to you. The firm and all its employees are bound by the provisions of the MARA Code of Conduct which prohibits the disclosure of any personal information of the client without his written consent. We possess no such written consent from Mr. Moreno and thus, are bound by the law to keep the personal information of Mr. Paul Moreno confidential.
The inconvenience is deeply regretted.
Yours Sincerely,
AB Migration.
Foundations of Ethical Practice - Question 5
Relevant Laws:
- MARA Code of Conduct
Application:
According to the provisions listed out under Part 7[4], the Registered Migration Agent/the firm has to maintain a separate account with a bank or any financial institution in which the expenditure amount for the processes of the client shall be deposited by the client himself. This account has to include the term “clients’ account” mandatorily. As mentioned in the situation, if the client has made an excess payment, the amount shall remain in the account. This amount may be withdrawn and returned to the client if all the procedures of the application are over and the agent does not foresee any payment that has to be made of the behalf of the client under the policy or undertaking. Since the amount has been in the possession of the financial institution for more than 1 year, the interest accrued on the amount also has to be return to the client along with the principal amount. The request made by Paul is a valid one and may be adhered to.
For future instances, the process may be changed. Whenever the transactions of a client with regard to an application are over, and no further expenses are to be paid by the Registered Migration Agent, the account created for deposit of the amount may be closed, and the remaining amount has to be returned to the client. If this procedure is followed, the question of excessive payment remaining in the control of the firm, shall not arise.
Conclusion:
$100 is a nominal amount while applying for visas. There is no accurate estimate with regard to the amount that shall be required to be paid. Thus, the situation that had arisen is not a very serious one, and to avoid such situations in future, the remedy prescribed may be followed.
Foundations of Ethical Practice - Question 6
Relevant Laws:
- MARA Code of Conduct
Application:
Part 6 of the MARA Code of Conduct requires the Registered Migration Agent to keep a record of all the documents till the expiry of 7 years from the time of the last transaction made by the client. However, these documents may be copies of the originals that had been submitted at the time of active visa application.
In this particular situation, the original documents of the client, which included 2 original AFP checks and 2 original IELTS reports were returned to the client via post, to the address recorded in the visa application once the visa was granted. The documents retained by the firm and the RMA are only copies of the same documents that had to be retained for legal purposes, as according to the law, details of the client have to be retained by the firm for a period of 7 years. The client is under an obligation to state the true and original address in the visa application. If the documents have not been received by him, then either the address is wrong, or the postal authorities have misplaced the parcel. The firm or the RMA shall not be responsible for the same.
Conclusion:
All the original documents have been returned; the firm is not liable to return the copies of the same documents.
Foundations of Ethical Practice - Question 7
Relevant Laws:
- Migration Act, 1958
- MARA Code of Conduct
Application:
The discrepancies found in the IELTS (International English Language Testing System) may be evidence of the fact that the report is forged. The qualification of passing the basic English language test is a mandatory criterion for the grant of sub-class 190 visa. if the document is proved to be forged or false, it may result in criminal punishment for Paul. Section 234[5] specifically criminalises the act of presenting a forged or false document. The immigration policies also mention a ban ranging from 1 to 3 years, where the offender is restrained from entering the country during that period, or the offender may be permanently banned from entering the country. If a document is found to be false after the grant of the visa which has been applied for, the visa shall be cancelled along with the punishments prescribed by the law. The Code of Conduct remains silent on the topic of false document presentation by the client. The provisions to make complaints under Part 9 of the Code[6] does not mention the provisions of a complaint to be lodged by an agent against the client. However, section 236F[7] provides that a written notice has to be made for a certificate. This certificate may be registered in a court to call for the person who had signed the forged document that had been produced to acquire the visa. If the certificate supplied by Paul is found to be false, a criminal suit shall be initiated against him as well as his spouse- Katrina Morena, as the application for the grant of both visas were filed together. If Paul’s visa is terminated, his spouse shall have no right to remain in the country.
Conclusion:
The menace of Migration fraud is a serious issue and gives rise to refugees in the country, who enter with the help of forged document and then vanish from the radar of the authorities. Australia spends a huge amount of money to cater to this issue.
Foundations of Ethical Practice - Question 8
Relevant Laws:
- Migration Act, 1958
- Migration Agents Regulations, 1998
- MARA Code of Conduct
Application:
Section 315 and 316[8] specify the functions and powers of the Migration Agents Regulation Authority. The power to look into complaints made by the agents against the issue of forged documents by their own clients has not been mentioned in any of the sections. The Code of Conduct also deals with complaints made against the agents by the clients or any other person. The issue of supplying forged documents for the grant of visa is catered to under the provisions of section 236F.[9]
A notice has to be made by the firm to the MARA as well as Department of Home Affairs for the grant of a certificate that shall initiate Court proceedings. The authenticity of the IELTS test report has to be checked, and if it is found to be false, a criminal suit has to be initiated against Paul along with the cancellation of his visa. since the application for grant of visa included the grant of visa for his wife, both the visas shall stand cancelled.
Conclusion:
The grant of visa based on false documents shall be ‘void ab initio’ as the initial eligibility has not been fulfilled.
References for Foundations of Ethical Practice
MARA Code of Conduct
Migration Act, 1958
Migration Agents Regulations, 1998
Australian Government- Department of Home Affairs. Available at https://immi.homeaffairs.gov.au/
Section 315 and 316 of the Migration Act, 1958
Section 236F of the Migration Act, 1958
Section 234 of the Migration Act, 1958
Part 9 of the MARA Code of Conduct
Part 7 of the MARA Code of Conduct
Section 236F of the Migration Act, 1958
Part 3 of the MARA Code of Conduct
[1] Part 3 of the MARA Code of Conduct
[2] Migration Agents Regulations, 1998
[3] Migration Agents Regulations, 1998
[4] Part 7 of the MARA Code of Conduct
[5] Section 234 of the Migration Act, 1958
[6] Part 9 of the MARA Code of Conduct
[7] Section 236F of the Migration Act, 1958
[8] Section 315 and 316 of the Migration Act, 1958
[9] Section 236F of the Migration Act, 1958
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