Related by Employment
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
Agents have to take care who they work with. If you end working with a person of bad character you may end up stung by the same sting. The key is the phrase ‘related by employment’. Here is what the Migration Act and the Migration Agents Regulations 1998 say:
Section 278. Relation by employment
- (1) For the purposes of this Part, an individual is related by employment to another individual if:
(a) one individual is an employee of the other; or
(b) they are executive officers of the same corporation; or
(c) they are members of the same partnership; or
(d) one individual is an employee of a corporation and the other is:
(i) an employee of the corporation; or
(ii) an executive officer of the corporation; or
(e) one individual is an employee of a partnership and the other is:
(i) an employee of the partnership; or
(ii) a member of the partnership.
(2) For the purposes of this Part, an individual is also related by employment to another individual in any other prescribed circumstance.
EXPANDED MEANING OF EMPLOYEE
(3) In this section:
employee includes a person engaged as a consultant or as an independent contractor.
And what is prescribed by the regulations is as follows:
3U Relation by employment
(1) For subsection 278 (2) of the Act, an individual is related by employment to another individual if both of them are employed by a third individual.
(2) For subsection 278 (2) of the Act, an individual is related by employment to another individual if:
(a) one of the individuals holds 25% or more of the shares issued by a corporation that provides immigration assistance, or services including immigration assistance; and
(b) the other individual is employed by the corporation.
Note Immigration assistance is defined in section 276 of the Act.
(3) For subsection 278 (2) of the Act, an individual is related by employment to another individual if:
(a) one of the individuals holds a charge (whether fixed or floating) or a mortgage or any other form of security over some or all of the assets of a business or corporation that provides immigration assistance, or services including immigration assistance; and
(b) the other individual is employed by the business or corporation.
If a colleague is found to be a ‘not fit and proper person’ then the colleague related by employment may be caught in the quagmire as ss 290 & 303 of the Migration Act shows:
- (1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a) the applicant is not a fit and proper person to give immigration assistance; or
(b) the applicant is not a person of integrity; or
(c) the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
(3) In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it relevant to the question whether the individual is not a person of integrity:
(a) any conviction of the individual of a criminal offence (except a conviction that is spent under Part VIIC of the Crimes Act 1914);
(b) any criminal proceedings that the individual is the subject of;
(c) any inquiry or investigation that the individual is or has been the subject of;
(d) any disciplinary action that, is being taken, or has been taken, against the individual;
(e) any bankruptcy (present or past) of the individual.
(4) To avoid doubt, this section applies to all applicants (not just first time applicants).
And see s. 303:
- (1) The Migration Agents Registration Authority may:
(b) suspend his or her registration; or
(c) caution him or her;
if it becomes satisfied that:
(d) the agent’s application for registration was known by the agent to be false or misleading in a material particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
So take care with you join forces with.
Professional Indemnity Insurance now in place
Migration agents who are not lawyers with practising certificates are required to have professional indeminity insurance cover of $250,000. The Migration Agents Amendment Regulations 2005 (No 1) came into effect on 1.7.05 added a new Reg 6B. Here is what it says:
6B Prescribed professional indemnity insurance
(1) Subject to subregulation (2), for s 292B (1) of the Act, professional indemnity insurance for at least $250 000:
(a) held by an individual; or
(b) held by an organisation of which the individual is a director, employee or member;
(2) Subregulation (1) does not apply, before 1 July 2006, to an individual who acts as disclosed in the individual’s registration application:
(a) solely on a non-commercial or non-profit basis; and
(b) as a member of, or a person associated with, an organisation that operates in Australia solely on a non-commercial or non-profit basis.
Note From 1 July 2006, a registered migration agent who acts solely on the non-commercial basis described in subregulation (2) will be required to have professional indemnity insurance of the kind prescribed in subregulation (1).
(3) An individual is taken to have complied with subregulation (1) if he or she:
(i) a member or employee of a partnership; or
(ii) a director or employee of an incorporated legal practice; or
(iii) a sole legal practitioner or an employee of a sole legal practitioner; and
(b) has satisfied the Authority that he or she has a current legal practising certificate.
Note An individual described in subregulation (3) would already hold professional indemnity insurance for at least $250 000 as part of the requirements for their current legal practising certificate. The individual would not need to provide evidence of professional indemnity insurance to the Authority once the Authority is satisfied that the individual has the certificate.
An individual who is not mentioned in subregulation (3) will need to provide evidence to satisfy the Authority that the individual has professional indemnity insurance for at least $250 000.
But from 1.7.06, the concession for those working in non-profit organisations giving migration advice, comes to end and all migration agents who are not lawyers will have to have professional indemnity insurance.
Australian permanent residents not living in Australia can be Migration Agents
The Migration Agents Amendment Regulations 2005 (No 1) now defines a permanent resident for migration agent purposes as anyone holding a permanent visa. In contrast in Reg 1.03 a permanent resident generally has to be living in Australia. The new Reg 6C states:
6C Registration application — Australian permanent resident
For s. 294 (1) (b) of the Act, Australian permanent resident means a non-citizen who is the holder of a permanent visa.
- 294 states:
(1) An applicant must not be registered unless he or she is:
(a) an Australian citizen; or
(b) an Australian permanent resident (within the meaning of the regulations); or
(c) a NZ citizen who holds a special category visa.
(2) To avoid doubt, this section applies to all applicants (not just first time applicants).
The above now means that a person living overseas but who holds an Australian permanent residence visa can be registered or re-registered as a migration agent.
Migration Agent Number in advertising
The need for Agents to disclose their number when advertising is clarified. Clause 2.11 of the code of conduct now states:
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 Cl 2.12, which relates to implying a relationship with DIMIA or the Authority, also applies to the registered migration agent’s advertising mentioned in cl 2.11.
Other provisions in the Code of Conduct
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 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) tell the client the amount of each fee and charge; and
(c) if the agent is to pay an amount for the client — tell the client 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 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).
Here is a catchall clause and some other general provisions :
2.23 A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.
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.
2.3A A registered migration agent’s professionalism must be reflected in the making of adequate arrangements to avoid financial loss to a client.
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
(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 (http://www.themara.com.au).
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 must not hold out unsubstantiated or unjustified prospects of success when advising clients on applications under the Migration Act or Migration Regulations.