DATE: 21 September 2020.
SUBJECT: The Code of Conduct for Migratory Agents 2017.
Agencies are created to resolve personal financial issues. For the said purpose a principal who is the appointing party appoints an agent on his behalf to perform specific functions according to the powers assigned to him. The legal idea of providing the ‘authority’ to another person for performing a specific task sets the foundation of the relationship of an agency between the principal and the agent. The responsibility of an agent towards the principal involves the duties which he has to perform according to the directions of the principal or as the principal would have himself performed it in person. A registered migration agent in has to follow a Code of Conduct for registered Migration Agents (the code) as established in Schedule 2 of the Migration Agents Regulations 1998 (the regulations) and the breach of which can make the Migration Agents Registration Authority to decide under section 303 of the Migration Act 1958 to sanction the agent. Since David has received an amount of $5,500 from the employer client in his operating account for the professional services to be delivered to the client, he is bound by the financial duties mentioned under the code of conduct and therefore, cannot simply deny completing the work. The completion of services to the client by David will ensure the work is done and thus the code being complied with. David and Edward, both have breached the duty of record keeping and management as mentioned under the code which was the lack of all the documents required for an application such as the copy of the client’s application, the copy of each written communications between the client, the agent, the department, and the statutory authority along with the file notes of every material oral communication among the client, the agent, the department and the relevant statutory authority. However, as per the code, a registered migration agent has to keep all these documents secured for 7 years from the date of the last action on the application. David has also committed a breach of obligations to clients by disclosing the client’s file with the new employee since he is not the appropriate agent to deal with the applications relating to temporary and permanent employer-sponsored visas. David may be held liable for such a breach of the code under the regulations.
David would have obligations under his insurance policy on professional indemnity if there arises any claim from the employer client regarding the non-completion of the application review of the nomination and the visa application since the visa application has already been refused due to the non-approval of the nomination by the AAT. The insurance policy can protect David from all the legal claims arising out of any breach of the professional duty by David or by his agent, Edward. However, the liability issue between Edward and David would be dealt with by the agency law and not by the professional indemnity insurance policy. Since Edward was the migration agent in charge of the nomination of the employer client and the same got rejected, the client may file a legal claim for the amount that he has paid and for compensation as well. In such a case, the insurance policy may save David from any monetary obligation since the claim arose during business (PCCA 2017).
There are specific time limits in the case for refusals of the nominations and the visa applications. Mostly there is a 21-day deadline from the day of receiving the refusal notice has been received. The AAT doesn’t have discretionary powers to entertain late submissions, therefore, timely submission of the review application before the tribunal is very important. An applicant who has received the refusal of the factors mentioned that may vary from application to application. The eligibility to apply for review against the refusals depends on these criteria and the application can only be made by the visa applicant, former visa holder, the sponsor, or the close relative of the applicant. The applicants have the rights to apply for a review of their refused visa applications and nominations before the AAT after paying the review charges of $1,764 for review of each nomination and the visa application, however, 50% of the fees will be refunded in case of a successful review application (O’Sullivan 2018).
The nomination and the visa application can only succeed if the employer client complies with the requirements and the recommendations for the issue of a 457/482 visa. The decision taken by the AAT would be initially on the nomination and then the AAT will proceed forward to decide the visa application. In the case of review applications before the AAT, the applicants have to provide the specific information and shreds of evidence relating to the review application. For instance, the applicant has to provide the business name extract of the Australian Securities & Investments Commission (ASIC) along with the current and history extract of the business under ASIC (ASIC 2020). The evidence relating to being a party to the work agreement and also the business tax returns, and financial statements of the business with a detailed statement of the profits and loss and the balance sheets along with the activity statements lodged with the Australian Trade Organisation. The current organizational structure chart mentioning the roles and duties of the employees regarding the position description in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and the employment contract or offer letter complying with the nomination. Also, all the salary surveys, advertisements, payroll reports, and the PAYG statements that are relevant to the work along with the visa status and the English language ability of the nominee for the 457/482 visa. The most important requirement is the local job advertisement for the nominated position and its certification by the Regional Certifying Body (AAT 2020). If the employer client complies with the above-mentioned conditions and submits the fees of AUD330 for nomination charges and AUD1,265 as base application charge for the nominee and a subsequent temporary application charge of AUD700 in the case when the applicant is already in Australia while applying for the 482 Short-term streams. However, the base application charge for the Medium-term stream and the Labour Agreement stream changes to AUD2,645 while the other charges remain the same (DHA 2020).
A Articles/ Books/ Reports
AAT (2020). Nomination Refusals. Administrative Appeals Tribunal. Retrieved from https://www.aat.gov.au/AAT/media/AAT/Files/MRD%20documents/Factsheets/FS08-Nomination-Refusals.pdf
Australian Competition and Consumer Commission v Flight Centre Travel  HCA 49
International Harvester Co of Australia Pty Ltd v Carrigan’s Haselden Pastoral Co (1958) 100 CLR 644 at 652;  HCA 16
Code of Conduct for registered Migration Agents 2017
Migration Act 1958
Migration Agents Regulations 1998
ASIC (2020). Business Names. Australian Securities & Investments Commission. Retrieved from https://asic.gov.au/online-services/search-asics-registers/business-names/
DHA (2020). Fees and charges for visas. Department of Home Affairs, Government of Australia. Retrieved from https://immi.homeaffairs.gov.au/visas/getting-a-visa/fees-and-charges/current-visa-pricing/work#
O’Sullivan (2018). The Administrative Appeals Tribunal. Retrieved from https://www.tssimmigration.com.au/migration-news/blog/the-administrative-appeals-tribunal/#:~:text=At%20present%20an%20application%20for,50%25%20of%20the%20application%20fee.
PCCA (2017). Guide to professional liability. Professional Contractors and Consultants Australia. Retrieved from http://www.professionalsaustralia.org.au/contractors-consultants/wp-content/uploads/sites/42/2019/12/Guide-to-Professional-Liability-2019.pdf
 International Harvester Co of Australia Pty Ltd v Carrigan’s Haselden Pastoral Co (1958) 100 CLR 644 at 652;  HCA 16.
 Australian Competition and Consumer Commission v Flight Centre Travel  HCA 49.
 Part 7 of the Code of Conduct for registered migration agents (2017).
 Part 6 of the Code of Conduct for registered migration agents (2017).
 Part 3 of the Code of Conduct for registered migration agents (2017).
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