TABLE OF CONTENTS
Receiving a Commission
Can a solicitor claim a lien over a passport?
High Court takes a broader and more beneficial approach to the regulation of migration agents
Related by Employment
Relations with other agents
Let’s return to page 6 of the Toolkit and look at the next obligation which is:
An obligation to maintain confidentiality
This is identified in Clauses 3.1 & 3.2 of the Code which read:
3.1 A registered migration agent has a duty to preserve the confidentiality of his or her clients.
3.2 A registered 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.
A salutary example of breach of confidentiality is found in the case of the barrister who failed to properly maintain confidentiality in the Schapelle Corby case. Here are the details:
BARRISTER BREACHING CONFIDENTIALITY – MISCONDUCT
In Legal Practitioners Complaints Committee v Trowell  WASAT 42 (13 March 2009) the State Administrative Tribunal of WA found a barrister guilty of misconduct for having disclosed material to the media without the client’s informed consent. The material consisted of allegations in the matter of Ms Corby (who was being charged with various drug offences in Bali) that there was a suggestion that bribes be paid to the court. Here is the detail:
38 On Monday, 6 June 2005, the practitioner and Mr Laskaris met with Ms Corby in prison. A number of matters concerning her present situation and her appeal were discussed. The practitioner gives different accounts of this meeting (considered below). In his witness statement and by his oral evidence he says that he told Ms Corby that he was not there to give legal advice or assistance and could not act for her and that she understood this. The LPCC challenges this version of events. The LPCC alleges (in the further alternative) that the practitioner was retained by Ms Corby at this meeting or she then became a prospective client of the practitioner.
39 The practitioner says that on two occasions over this weekend, Mr Rasiah raised with him the suggestion that the [Aust] government provide money in order to bribe the Bali judges hearing the appeal as being the only way this would be resolved. The practitioner says that he made clear to Mr Rasiah that this would never happen. Mr Rasiah subsequently denied this allegation against him. The practitioner says also that he learned during the visit that Mr Rasiah had made an attempt during the trial to bribe the judges and prosecutors. The practitioner says that at the time of his departure Mr Rasiah gave him a draft letter for the Australian government, requesting funds for the appeal, including $500,000 for ‘lobbying’. The practitioner believed this was code for money to bribe the judges. Mr Rasiah was not called at this hearing. We will assume in favour of the practitioner, without making any express finding on the point, that the practitioner believed that Mr Rasiah had made such attempt during the trial and that over the weekend Mr Rasiah had made suggestions concerning the government providing money for such purpose, including, as the practitioner believed, in his draft letter. Following his return to Perth, the practitioner emailed Mr Rasiah that the government would require an explanation for this item. He said this was for the purpose of ‘flushing out’ the suggestion of money for bribery.
40 Mr Rasiah flew to Perth on 10 June 2005. He met the practitioner and gave him a ‘final’ letter to the government which omitted any request for money for ‘lobbying’. There is evidence that at the meeting Mr Rasiah eschewed any further suggestion of bribery, but some evidence that on a social occasion that evening he raised the subject with Mr Davies.
41 On the following day, 11 June 2005, the practitioner again spoke to two journalists about Ms Corby’s appeal. These comprise the fourth and fifth complaints of disclosures. In the media articles published the following day, the practitioner is reported as complaining about the delay of the Bali legal team in providing draft grounds of appeal. They also report the practitioner saying that Mr Rasiah had first provided a draft letter containing a request for financial assistance in respect of a particular item, which item was omitted from the final form of this letter.
42 Again, on 13 June 2005, the practitioner spoke to two journalists about Ms Corby’s appeal, it is alleged making similar and related comments, including that the services of Mr Percy and the practitioner had not been availed of in relation to the appeal. These comprise the sixth and seventh complaints of disclosure and statements to the media.
43 On 14 June 2005, the Bali legal team filed the appeal.
44 On 22 June 2005, the practitioner again spoke to a journalist about Ms Corby’s appeal. This included express reference to Mr Rasiah seeking $500,000 from the Australian government for the purpose of bribing the Bali judges. This is the eighth complaint of disclosure. The practitioner said in evidence that in the course of this conversation the journalist disclosed that he knew of the bribery allegation and was going to print the story in any event. The practitioner said there were good reasons for making the disclosure in the interests of himself, the government and Ms Corby. The LPCC challenges the need for the practitioner to disclose the bribery suggestion. Following the newspaper report of the practitioner’s allegations, there was extensive publication of the story. On 24 June 2005 Ms Corby dismissed her Bali legal team, although the team, or members of it, were reinstated shortly thereafter.
45 Some days later the LPCC wrote to the practitioner raising its concerns about his conduct and specifically whether there had been a disclosure of Ms Corby’s confidential information.
The Tribunal found the legal practitioner guilty of misconduct – here’s why:
451 The starting point in considering this issue must be the situation of Ms Corby, suffering both physical deprivation and the prospect of life in an Indonesian jail and dependent, for some possible relief, upon the success of her appeal. We think that a responsible barrister would have been acutely aware of these facts and conducted themself accordingly. That would require that the barrister pay very careful attention to whether they owed Ms Corby duties of confidentiality. Had that possibility existed the practitioner ought to have erred on the side of caution and exercised great restraint in making any disclosures or, where necessary, saying anything to the media. He might have made efforts to clear any statements with Ms Corby in the manner suggested, if they were otherwise not detrimental to her position. We think the practitioner manifestly failed to exercise that level of care and restraint. Rather, he sought out media attention and disclosed confidential matters and expressed his personal opinions about her appeal with no or little regard to the consequences for Ms Corby. Worse, he conducted his personal dispute with Mr Rasiah through the press in a manner that was highly prejudicial to Ms Corby’s interests. In these circumstances, we do not think the practitioner’s belief that Ms Corby was not his client excuses his conduct.
452 Neither do we think that the disclosures and statements were justified to the extent the practitioner believed they were in the government’s interest or served a political purpose for which he had been retained and were not inimical to Ms Corby’s interests. We leave to one side the propriety of the practitioner, in the circumstances, undertaking what he called a semi-political role. In our judgment the practitioner was under an obligation to Ms Corby as his client to protect her confidences, ensure any disclosures were in her interests, and obtain her authority to make statements to the press. Put another way, whatever political or other service the practitioner regarded himself as rendering to the government, from Ms Corby’s point of view we think she was entitled to expect that a senior counsel advising and assisting her in relation to her appeal against a life sentence would scrupulously comply with his professional obligations to protect matters confidential to her appeal and obtain her informed consent to statements made to the media.
The case is a timely reminder of the absolute nature of the obligation of confidentiality regarding client matters. The writer has come across a number of cases in recent time of migration agents assisting DIAC in their investigations of a client without the authority of the client. There is no obligation on a migration agent to assist DIAC in relation to a visa application or visa holder who DIAC believes is breaking or has broken the law. Indeed there is an obligation not to disclose any client matters to DIAC without the client’s specific approval.
What about requests for information from other authorities
Because there is a serious level of fraud in migration matters, various authorities are now investigating this fraud. One of these is Trades Recognition Australia. It is important to note that no information should ever be given voluntarily. Confidentiality of a client’s file is paramount. Migration agents should never consent to being interviewed by investigating officers without the written approval of the client. The only material which must be given or disclosed is on the basis of a valid search warrant or subpoena or summons to a court and then it would be prudent to inform the client of what is happening.
Conflicts of interest
Again return to page 6 of the Toolkit and note the issue is raised about conflict of interest. This is identified in clauses 2.1A and 2.1B of the Code as follows:
2.1A 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;
(b) [omitted by SLI 2006, 249 with effect from 1/10/2006];
(c) the agent is, or intends to be, involved with the person in a business activity that is relevant to the assessment of a visa application or cancellation review application;
(d) there is any other interest of the agent that would affect the legitimate interests of the client.
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.
Clause 2.1A(b) used to state this about a ground of conflict of interest :
(b) the agent is, or intends to be, the employer, sponsor or nominator of the person in a visa application or cancellation review application;
However this was removed on 1 October 2006
The law of conflict of interest is well established as regards legal practitioners and it is use useful to examine the law in that regard in some detail.
Conflict of interest at law generally
In Incorporated Law Institute of New South Wales v R D Meagher, Isaacs J made the following statement which is important in reflecting the role of the lawyer in society:-
“… There is therefore a serious responsibility on the Court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential.”
Legal ethics expert Virginia Shirvington wrote:
Most ethical dilemmas will involve conflict between the various duties solicitors owe which can be described as being to the Court, of which we are officers, to the client, to the administration of justice, to the profession and to the public. The logical way to solve an ethical dilemma is to analyse it in terms of the various duties. A good rule of thumb is that if you cannot carry out one duty without breaching another then your proposed course of action cannot properly be taken.
It is often said that the duty to the client is paramount. As practising as a solicitor involves working for clients, the focus of your concern will primarily be your client’s best interests. This, however, does not mean that you can serve those interests at all costs.
 Conflict of interest – some general comments – potential and actual breaches of duty
You have a conflict of interest when you are serving or attempting to serve two or more interests which aren’t compatible. It may be described in the following way
A practitioner (which includes a law practice) has a conflict of interest when the practitioner
serves or attempts to serve two or more interests which are not able to be served consistently or honours or attempts to honour two or more duties which cannot be honoured compatibly and thereby fails to observe the fiduciary duty owed to clients and to former clients.
To act when you have a conflict of interest involves breaching your fiduciary duty to your client or former client. This is the basis of the conflict of interest problem and is stressed in many of the cases dealing with conflict of interest. The four elements of the fiduciary duty are:-
- The duty of loyalty to the client.
- The duty of confidentiality.
- The duty to disclose to the client or put at the client’s disposal all information within your knowledge that is relevant in order to act in the client’s best interests.
- The duty not to put your own or anyone else’s interests before those of the client.
Ask employer to insist on being provided police clearances.
The disclosure of information obligation was well articulated by Sir Robert Megarry, in Spector v Ageda (1973) Ch 30, who said:
A solicitor must put at his client’s disposal not only his skill but also his knowledge so far as is relevant, and if he is unwilling to reveal his knowledge to his client, he would not act for him. What he cannot do is act for the client and at the same time withhold from him any relevant knowledge that he has.
Of course a lawyer can have a conflict of interest on this point with a new client in reference to information he may have about a previous client:
In Mallesons Stephen Jaques v KPMG Peat Marwick (NSW Supreme Court 1990), Ipp J makes the following observation while defining a conflict:
The conflict of interest is between the continuing duty of a solicitor, owed to his former client, not to disclose, or use to the latter’s prejudice that which he learned confidentially, and the interest which he has in advancing the case of his new client.
Acting for both the employer and the employee in a subclass 457 visa application and an ENS visa application
As a matter of principle it is not a conflict of interest to act for employer and employee in the above situations provided nothing untoward occurs. Ordinarily there is no conflict the employer wants the employee to get the visa and both parties are on the one track.
Often the employer will not want the employee to know financial details of the employer’s business. This does not become a conflict of interest as long as the employee agrees to this non-disclosure.
However if it emerges that the employee wants to hide something from the employer then there is a conflict of interest, a typical example being criminal convictions which occurred years ago but relate to honesty.
Let look at page 21 of the Ethics Toolkit. Resolving this issue turns on permission. Obviously one cannot tell the employer about an employee’s conviction without the employee’s permission but once the employee refuses to give that permission then the agent faces a clear conflict of interest and cannot act for either party.
Some specific examples
In Woods v Migration Agents Registration Authority  FCA 1622, 9 December 2004, a solicitor’s firm which obtained a 25% interest in a company which the client used to purchase a restaurant was found to be a conflict of interest. This Federal Court case is also illustrative of what can go wrong if an employed migration agent is let loose on clients without proper supervision. At one stage the employed migration agent cashed a $15,000 cheque. The employed agent arranged for the client to purchase a café for $250,000 but ultimately was sold for $50,000 by the client. The law firm acting for the client obtained a 25% interest in the company owing the restaurant but paid no money for that interest. The Court concluded:
 Both groups, migration agents and solicitors, owe a duty to a client to act in accordance with the law and the legitimate interests of the client. Avoiding conflicts of interest is a sub-set of acting ‘in accordance with the law’ (cl 2.1(a) of the Code) as a conflict of interest, which may give rise to a breach of duty, may also constitute a breach of the law. Given cl 2.1(a) of the Code, and the other matters to which the Tribunal referred, the Tribunal’s observation that the standard(s) of conduct for migration agents is no less than the standard(s) of conduct owed by lawyers, cannot amount to an error of law. Accordingly, I accept the submission for the respondent that no ‘question of law’ within the meaning of s 44 of the AAT Act arises from the Tribunal’s decision. It is noted that under the provisions of s 292 of the Act, the cancellation of the applicant’s registration is effectively for a period of five years. Thus while the standard of conduct is no less than the standard applicable to solicitors, that standard has not been applied in a higher, different or inappropriate way, nor has the applicant been assessed by the Tribunal as anything other than a migration agent. In his capacity as a solicitor the applicant had an eight-year disqualification imposed in circumstances where the LPT took into account, inter alia, the same events subsequently considered by MARA.
Look at page 17 of the Ethics Toolkit. Consider a situation where the client has given you a suspicious document and wants you to lodge it with Immigration. There is no other alternative but get to the bottom of it. If you think it is suspicious then it is likely that the delegate will think it is suspicious. A bogus document given to Immigration could cause either visa refusal or later visa cancellation. An adviser must have confidence that all the evidence being presented is correct.
We have discussed secrets in conflict of interest, not every secret is a conflict of interest but every secret kept from a party is dangerous. Look at page 18 of the Ethics Toolkit and the example of the client wanting to keep it a secret that she have a bank account in the home country. The best way to deal with this is to have a ‘no secrets’ clause in the client contract. The clients then know up front that whatever one party tells you that information will be available to other party. If the client wants to keep a secret let it also be a secret form the adviser.
When things go wrong
When things go wrong, usually the last person that can fix the problem is the person who caused the problem. Unless there are particularly unusual circumstances then if an error occurs like missing an MRT deadline then the client should be advised of the error and told to seek advice from a lawyer. Generally look at page 22 of the Ethics Toolkit.
Taking on difficult or problematic cases
There is no obligation to take on difficult cases or cases you may feel uncomfortable with. Your personal ethics rather than legal ethics may get in the road. The writer’s advice is not to take on cases where you are not 100% comfortable with doing so. However one should not be squeamish, difficult cases can be very interesting and very challenging and therefore professionally very rewarding. The writer’s view is not to shy away from difficult cases.
Taking on cases where there are no prospects of success
Look at pages 50 to 53 of the Ethics Toolkit. The Ministerial discretion provisions specifically allow the Minister to grant a visa even though the client did not meet the criteria. But the Minister can only do so if there has been an adverse decision by the MRT, the RRT or the AAT. So in order to crystallise the power of the Minister to intervene then there has to have been a rejection by one of those tribunals. Therefore it is permissible to lodge a visa application where there are no prospects of success for the purpose of seeking ministerial intervention.
What about judicial review
However the situation is different for judicial review. There are no ministerial discretion issues that arise out of judicial review. Ethically a lawyer cannot lodge a judicial review application for an ulterior purpose.
Not all cases of judicial review have the same strength and it would be permissible to bring a weak or problematic case to court but there must be some prospects of success.
In terms of the obligations of an agent to their client under Part 3 of the Code, you should be aware of the provisions of clause 3.6:
A migration agent must ensure that clients have access to an interpreter if necessary.
There is no legal requirement that the interpreter be a NAATI qualified interpreter as found in Shi v MARA  AATA 851 (2 September 2005) at paragraph 149:
- Following Justice Tamberlin’s approach in Hanna to interpretation of the Code, it is my view that the requirement for a particular formal qualification, such as a NAATI accreditation should not be read into the clause. What is required is a person who is proficient in interpreting from one language to another.
Let’s look at page 53 of the Ethics Toolkit. Often there are circumstances where a professional interpreter is beyond the means of the client and a family or friend undertakes the interpreting. This should be disclosed to Immigration by way of explanation in the form of either a letter or statutory declaration and then included in the documents submitted with the application. If it turns out the interpretation was not 100% accurate then your having have notified DIAC at the beginning, that the interpreting was not done by a NAATI accredited interpreter would ordinarily get a sympathetic hearing from a case officer if an amended but corrected translation is then submitted. In a perfect world one does one’s best to get accurate translating and interpreting done but this does not always happen. The writer had the experience in an MRT case of an Australian CPA accountant of Chinese origin having done all the interpreting in a business visa matter at the visa stage but got the interpreting wrong (he was not NAATA accredited). At the MRT hearing the accountant gave sworn evidence that he got the translation wrong because his clients were from north China and had an accent which was unfamiliar to him. The MRT accepted that explanation.
But when relatives or friends are doing the interpreting then the person needs to be told in no uncertain terms that the interpreting must be done correctly. It may be prudent to tape record the interview. If there are any concerns about whether the interpreting is correct then the agent should insist on an independent person being engaged to do the interpreting.
On translating apart from the simplest of documents, ordinarily one should get a qualified translator to do the job.
Taking on cases where you have no experience
Let’s look at page 55 of the Ethics Toolkit. Situations will arise where a totally new matter arrives. This does not mean the agent should not take on the case. However proper advice and assistance should be sought in such matters from a person who is experienced in that type of case.
Terminating the contract with the client
It is useful to track amendments in regulations and legislation as it throws some light on the interpretation of the current regulation.
Back in 2006 the Code of Conduct is amended by deleting the words ‘for just cause’ in clause 10.1.
10.1 A registered 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.
Obviously whether an agent has properly terminated the contract would be a matter between the agent and client but the amendment means that such issues would not ordinarily be part of whether the Code has been breached under clause 10.1.
Let’s look now at page 77 of the Ethics Toolkit and clause 10.1A of the Code.
10.1A For paragraph 10.1(c), a written notice must state:
(a) that the agent ceases to act for the client; and
(b) the date from which the agent ceases to act; and
(c) the terms of any arrangements made in respect of appointing another registered migration agent.
This means a migration agent will not be breaching the Code of Conduct if the agent legally terminates the contract with the client and does not complete the job. A legal termination need not be for just cause’. A typical termination is over non-payment of fees. So long as the contract allows for termination by the agent for non-payment of fees the agent can cease work for the client.
CLIENTS BELIEVED OVER LAWYERS/AGENTS IN DISPUTES OVER RETAINERS
In disputes between a client and a lawyer over the exact nature of the work in which the lawyer has been retained, the Courts have taken the position that the client’s version of events will generally be accepted over the lawyer’s version unless there is written evidence to the contrary.
Lord Denning outlined the position in the old English case of Griffiths v Evans  1 WLR 1424 at 1428;  2 All ER 1364 at 1369:
The duty of a solicitor depends, of course, very much on what he is employed to do. In this case the solicitor says that he was employed solely for the purpose of a claim under the Workmen’s Compensation Acts, and therefore, he was under no duty to consider the possibility of a common law claim, whereas the workman says that he employed the solicitor to conduct his case for compensation without specifying whether it was under the Acts or not, leaving it to the solicitor to do the best he could for him and, therefore, the solicitor ought to have considered the possibility of a claim at common law. On this question of retained, I would observe that where there is a difference between a solicitor and his client on it, the courts have said for the last hundred years or more that the word of the client is to be preferred to the word of the solicitor, or, at any rate, more weight is to be given to it: see Crossley v Crowther (7), per Sir George J. Turner, V.-C.; Re Paine (8), per Warrington, J. The reason is plain. It is because the client is ignorant and the solicitor is, or should be, learned. If the solicitor does not take the precaution of getting a written retained he has only himself to thank for being at variance with his client over it and must take the consequence.
It is noted that while Lord Denning gave the dissenting judgment in Griffiths v Evans, his above approach with regard to disputes over retainers has long been accepted by the Australian and English Courts as correct at law.
The implications of Lord Denning’s decision in Griffiths v Evans for migration agents is that any agreement, contract or retainer hiring an agent to undertake migration work for a client should be in written format and clearly outline the exact nature of the work in which the migration agent has been hired to undertake.
A failure to properly outline the nature of the work in which the migration agent has been hired to undertake in writing will most likely result in the Courts accepting the client’s version of events in a dispute. Furthermore, migration agents may find themselves open to a claim of professional negligence if a client claims that s/he retained an agent to undertake certain migration work but the agent failed to complete the work because the agent was under the impression that s/he had not been hired for that purpose.
CLIENTS WITH A SHADY PAST
Business visas are generally subject to this criterion:
Neither the applicant nor his or her spouse or de facto partner (if any) has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia.
In Lee v Minister for Immigration and Citizenship  FCA 977 (28 August 2009), the MRT found against the applicants. Here are the facts. The applicant wrote to the MRT as follows:
Due to the nature of the business, I had to employ a few people on a casual basis. And due to the lack of interest from the Australian general public in working in this type of labour work, I had no choice but to rely on overseas people such as working holiday makers for the required job. They work for a short period due to their travel plan and work limitation condition. This has been the main reason why they were omitted from employment declaration and PAYG withholding tax. I have now rectified this situation and will continue to do the right things. I regret about the default of conducting the business in the way that had gone through.
The Tribunal, in its reasons for decision , said:
The Tribunal observes that the first named visa applicant has admitted by way of submission and oral evidence that he had paid cash to his carwash casual employees. The delegate found that the salaries had not been declared to the ATO and that PAYG withholding tax obligations on their behalf had not been met and that the first named visa applicant “had evaded tax obligations through participation in the ‘cash’ or ‘black’ economy and this behaviour “would be likely to be offensive or to give rise to controversy in the Australian economy”.
The Tribunal concluded:
The Tribunal finds that the first named visa applicant’s claims are based on what he thinks is a real world scenario and the reality of his industry. The Tribunal does not disagree with him regarding the nature of the employment scenario he outlined to it. But the crucial point is that he has admitted to breaking the law over a period of time by bypassing payroll tax, superannuation and workers’ compensation payments through cash payments to his casual employees. The employees for their part have evaded paying income tax. He, therefore, has ‘a history of involvement in business activities’ meaning an elaborated, prolonged and consistent period of conduct in activities which are likely to be offensive to a large section of the Australian population and which are unlawful. Furthermore, although the first named visa applicant has claimed to have rectified these payments, he did not desist from this conduct until discovered by the Department on a site visit in regards to his Business visa application.
The Tribunal finds that this behaviour may be prevalent in Australia due to the exigencies of certain employment situations (as the first named visa applicant claims) but it is, nevertheless not ‘generally acceptable’ in Australia because it is, in fact, a breach of the law of the land and avoidable. The Tribunal finds, therefore, that the first named visa applicant does not meet the criterion in clause 892.214.
On appeal to the Federal Court Spender J agreed with the MRT
- In my opinion, the disqualifying criterion in cl 892.214, that neither an applicant nor his or her spouse has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia, requires a consideration of whether there is a history of involvement in business activities that are of a nature that the larger part, or most, of people in Australia would not or do not approve of. The activities of the appellant in the present case were identified by the Tribunal as bypassing payroll tax, superannuation, and workers’ compensation payments through cash payments to his casual employees, with the consequence that the employees, for their part, have evaded paying income tax. The Tribunal concluded those activities are activities “which are likely to be offensive to a large section of the Australian population and which are unlawful”. Those findings support the conclusion that “those business activities are not generally acceptable in Australia”. The Federal Magistrate concluded that “the first named visa applicant does not meet the criterion in cl 892.214”. No error taints this conclusion.
Obviously no applicant should be applying for visas without having a clean house as far as taxation is concerned.
THERE IS TOO MUCH FRAUD GOING ON
There is too much fraud going on in migration practice. An inference DIAC is drawing is that some unscrupulous migration agents are participants in it. On the evidence that inference has some basis to it.
The DIAC is currently not accepting any onshore applications for access to the AL 2-4 trial, pending a review of access to the eVisa facility. DIAC has made this communication to agents applying for access to E-visa system:
Due to a integrity concerns in the Student visa caseload in August 2009 the Minister of Immigration and Citizenship announced that the Department will be strengthening several integrity measures. A part of these measures includes a review of access to the student eVisa trial.
No applications will be processed for agents seeking to join the E-visa scheme.
In August 2009, the Minister for Immigration and Citizenship, Senator Chris Evans made this announcement:
DIAC is strengthening checks on student visa applications to stamp out fraud and ensure students have the financial capacity to live and study in Australia.
Applications for student visas grew by 20 per cent to 362 193 in 2008-09, with almost 28 000 student visas refused, an increase of 68 per cent on the number of refusals in 2007-08.
‘While overall student visa compliance rates remain high, there are elements of concern within this large caseload,’ the minister said.
The targeted measures will address the potential for document fraud and other issues around financial capacity, identification and bona fides in some parts of the student caseload. The measures implemented with immediate effect include:
- upgrading the interview program to build a strong evidence base around fraud;
- removing or restricting eVisa access for some agents where there is evidence of fraud or inactivity, and
- restricting access to eVisa for some segments of the caseload if analysis demonstrates restricted access would allow for better control of fraud.
The measures will target parts of the student visa caseload in India, Mauritius, Nepal, Brazil, Zimbabwe and Pakistan.
On 1 September 2007 all the participating states pulled out of the designated investment scheme for General Skilled Migration visas. The reason was that it turned out that a whole lot of ‘designated investments’ were not genuine. The problem was that the National Australia Bank had signed up a group of applicants from India for low documentation loans and with various amounts of commission charged on the way through.
Obviously the designated investment scheme was not meant to be money simply borrowed via a scheme and repaid after a year. The scheme had the hallmarks of ‘it was too good to be true’. If something is ‘too good to be true’ then it is probably too good to be true.
Migration agents should NOT get involved in schemes which are ‘too good to be true’ because eventually DIAC will conclude that they are ‘too good to be true’ and will change the scheme to make sure that it is NOT ‘too good to be true’. Some lucky clients might get through but a serious well resourced MARA may eventually to get involved.
Then there was the controversy over the Trades Recognition Authority Pathway D – experience for gaining a skill assessment. Pathway D was eliminated largely because of fraud in the documents many applicants used to prove experience.
Anecdotally the writer had heard of a practice of restaurants simply taking money to issue a letter saying that a person obtained the necessary work experience.
In fact DIAC investigations have revealed that in fact fake work experience documents were produced to certify that skilled visa applicants had done the 900 work experience required by the TRA skill assessment. This may resulted in Skilled and Business Migration Program of Workforce Victoria, Department of Innovation, Industry and Regional Development, Victoria “has suspended the processing of all applications for the Skilled – Sponsored (Residence) (subclass 886) Program for ASCO 4 occupations”(see general letter to Migration Agents in late February 2009).
Then on Tuesday, 24 March 2009 the Minister for Immigration and Citizenship, Senator Chris Evans issued the following media release:
An alleged racket involving migration agents supplying false documents for student visa holders has been uncovered in a joint agency operation in Melbourne.
Officers from the Department of Immigration and Citizenship, the Australian Federal Police and other agencies raided a migration agency in Melbourne last week where three agents were allegedly providing fake documentation to support permanent residency applications for foreign students.
‘It is alleged that the agents were involved in falsifying documentation to support permanent skilled migration applications of their student visa holder clients,’ Senator Evans said.
‘The students had applied for permanent visas based on their claimed skills in a range of occupations including cooking, hairdressing, horticultural work and car mechanics.’
Investigations are continuing into possible offences relating to forgery and fraud under the Migration Act and the Commonwealth Criminal Code which carry penalties of up to 10 years’ imprisonment.
‘Illegal activity by migration agents attacks the heart of Australia’s visa programs and will not be tolerated. This operation is further evidence of the government’s resolve to target migration fraud,’ Senator Evans said.
People who obtain permanent visas based on falsified documentation can have their visas cancelled.
Last week’s operation follows an extensive investigation by immigration officers, who had received information from other government agencies about the alleged illegal activities.
Senator Evans said the operation highlighted the need for a greater level of scrutiny on the migration advice profession.
Other ‘schemes’ the writer has picked up is a buy into a business scheme which turns out to be applicants simply paying money to buy into a company which is barely operating but has ‘divisions’ setup to fictitiously claim that the visa applicants are genuinely involved in the day to day management of the business when in actual fact they are not.
Migration agents obviously can not be involved in schemes which are clearly bogus.
On 11 March 2009 the Minister for Immigration and Citizenship, Senator Chris Evans made this announcement:
“…immigration officials, supported by the Australian Federal Police, state law enforcement and other government agencies, conducted a series of early morning raids on residential and business premises in NSW, Victoria & Qld.
‘The department’s investigators had received information from a number of sources about a labour hire intermediary who was allegedly bringing Chinese foreign workers into Australia to be employed in meatworks unlawfully,’
‘There is also alleged identity fraud which we believe was widespread, coordinated and targeted the meat industry specifically. The department believes up to 100 illegal workers are involved in the racket.’
As a result of today’s field operations, a person of interest who is believed to be the main organiser, has been identified and a large amount of evidence, including fraudulent passports, has been seized.
Further investigations into possible breaches of the Migration Act, Passports Act and criminal offences relating to identity fraud are continuing. Warrants were executed in Melbourne and Sydney, Wagga Wagga, Warrnambool, Scone, Kilcoy and Beenleigh.
So far, more than 30 people have been located working in breach of their visa conditions or not holding a valid visa. Immigration compliance officers are interviewing dozens of people of interest which could result in visa cancellations or notices of intent to cancel a visa. Most of the workers entered Australia legally on tourist or student visas.”
Again a reasonable inference may be that migration agents were involved in assisting this scheme.
In the current climate with English language competency requirements going up, clients may be tempted to cheat. The declaration IELTS participants have to complete includes the following:
- I understand that if I attempt to cheat, copy the work of another candidate, disrupt the test, remove or copy or attempt to remove or copy any test materials from the examination room, engage in any form of malpractice, or do anything that might damage the integrity and security of IELTS, I will not receive a result for the test, my test fee will not be refunded and I may be prohibited from taking IELTS tests in future. I understand that details of any alleged cheating/malpractice may be provided to the relevant authorities, including visa processing authorities. All alleged malpractice will be reported centrally to the Test Partners and to any relevant test centre by the centre where the alleged malpractice occurred.
Student found cheating may end being banned from doing IELTS for a long time and usually DIAC is told of any cheating.
SOLICITOR NEEDS TO KEEP IN TOUCH WITH CLIENTS NOT JUST THE MIGRATION AGENT
In Legal Services Commissioner & Ors v Jayakody (Legal Practice)  VCAT 2075 (7 October 2008) the Victorian Civil and Administrative Tribunal (VCAT) found a solicitor guilty of professional misconduct (in his capacity as a solicitor) for having failed to properly communicate with clients in migration judicial review litigation in the Federal Court. VCAT reprimanded the solicitor but did not suspend him from practice. VCAT concluded in relation to his acting for clients in migration court matters:
- Mr Jayakody acted for the Complainants but generally communicated with their migration agent regarding matters affecting the conduct of the Complainants’ case, rather than communicating directly with his clients. Mr Jayakody only met his clients on one occasion, on 7 May 2002, and at that meeting he failed to give them his professional opinion regarding the prospects of success or otherwise of their application.
- In effect Mr Jayakody acted as the solicitor of record in respect of the Complainants’ proceeding but provided no professional advice and failed to maintain file notes and records to the standard expected of a practitioner.
- But it is also relevant to note that Mr Jayakody completed the work for which he was engaged. The relevant contentions were filed and the process was not held up as a consequence of Mr Jayakody’s actions.
- We agree with Mr Seifman’s submission that the circumstances show recklessness or a lack of attention to detail and accepted practice rather than a wilful or deliberate attempt to disadvantage a client.
CREATING FALSE DATES ON DOCUMENTS
In Legal Services Commissioner v Sorban  LPT 5 the Qld Legal practice Tribunal publicly reprimanded a solicitor who created an email by falsely back dating the date of an email. Here’s what happened:
The respondent was acting on behalf of clients in relation to the registration of a multiunit development and the subsequent sales of the units. The clients’ financier was represented by another firm of solicitors. The financier had to release its mortgage as the clients settled each of the sales of the units. The respondent was supervising a paralegal. The paralegal had responsibility in liaising with the various solicitors for the purchasers of the units and the financier’s solicitor with respect to obtaining all documents necessary to effect settlements of the sales of the units. This included providing whatever documents were necessary to satisfy the financier’s requirements for the purpose of obtaining the release of the mortgage registered over the units.
One of the financier’s requirements was for the clients to forward to the financier’s solicitors registration
confirmation statements. After checking with the paralegal that certain registration confirmation statements had been forwarded to the financier’s solicitors for settlements to proceed, which the paralegal mistakenly confirmed was done, the respondent acted on that advice of the paralegal without actively checking the file for the registration confirmation statements himself, and informed the clients on 7 November 2007 that the relevant registration confirmation. Statements had been forwarded to the financier’s solicitors.
That information was passed on by the clients to the finance broker who in turn conveyed that information to the paralegal at the financier’s solicitor.
The relevant registration confirmation statements did not issue from the Titles Office until 9 November 2007. The respondent was then informed by his clients that the financier’s solicitor was asserting that the registration
confirmation statements had not been received. The respondent informed his clients that the financier’s solicitor was in error and that they had been sent. The clients asked the respondent to send the registration confirmation statements again to the financier’s solicitor. When asked to do so, the respondent then personally checked the file and ascertained that the registration confirmation statements, although registered, had not previously been forwarded to the financier’s solicitor as he had understood to be the case from the paralegal.
The respondent created a false e-mail by backdating the date on the e-mail, attaching the registration confirmation statements, and forwarding it to the financier’s solicitors on 16 November 2007 to give the impression that the e-mail had been forwarded on 7 November 2007 when, in fact, it had not been sent on that date.
The respondent had not thought about the implications for the financier’s solicitor and the fact that his false e-mail brought the financier’s solicitor’s integrity into question.
The financier’s solicitor complained about the respondent’s conduct to the applicant on 14 December 2007.
AGENTS COMPLYING WITH THE LAW
In Legal Practitioners Complaints Committee v Pillay  WASAT 309 (17 October 2006) the State Administrative Tribunal of WA found a solicitor guilty of misconduct for having failed to lodge a tax return for 6 years and failed to make provision for tax for 8 years.
The Migration Agent’s Code of Conduct states:
2.1 A registered migration agent must always:
(a) act in accordance with the law…
So the above case of Pillay has some relevance for migration agents.
In this matter there were mitigating medical issues but ultimately the Tribunal concluded:
79 The practitioner properly concedes that he has been guilty of unprofessional conduct by reason of his failure to lodge income tax returns, make provision for the payment of income tax, pay income tax and pay provisional tax, and the Tribunal has so found. These failures were sufficiently closely connected with legal practice to fall within the ambit of unprofessional conduct, because the income in question was earned through the practice of law.
80 The Tribunal has determined that the appropriate professional disciplinary consequence of the practitioner’s unprofessional conduct in the circumstances of this case is the suspension of the practitioner from practice for a period of 12 months