Code of Conduct

INDEX Introduction Page 2 Standards of Professional Conduct Page 4 Obligations to Clients Page 9 Relations between Agents Page 10 Fees & Charges Page 11 Record keeping and Management Page 13 Financial Duties Page 14 Duties of Agents to Employees Page 15 Complaints Page 16 Termination of Services Page 17 Client Awareness of the Code Page 18 The Migration Agents Code of Conduct is authorised by the requirements of the Migration Agents Regulations 1998 No. 53, Schedule 2, Regulation 8 and the Migration Act 1958 Subsection 314(1). CODE OF

INTRODUCTION 1.1 The Code is intended to regulate the conduct of migration agents. 1.2 The Migration Agents Registration Authority (the Authority) is responsible for administering the Code. 1.3 A person who wants to operate as a migration agent must register with the Authority. 1.4 The Code applies to an individual who is listed in the Register of Migration Agents kept by the Authority under section 287 of the Migration Act 1958 (the Migration Act). 1.5 To ensure compliance with the Code, the Authority may impose an administrative sanction if a breach of the Code is found to have occurred. 1.6 An administrative sanction may range from a warning through to suspension of registration or the ultimate sanction of cancellation of registration. 1.7 Accordingly, the Code does not impose criminal sanctions. 1.8 However, there are a number of offences under the Migration Act and the Migration Regulations 1994 (the Migration Regulations) that also deal with the kind of activity covered by the Code. These activities include misleading statements and advertising, practising when unregistered and misrepresenting a matter. Provisions of the Crimes Act 1914 and the Trade Practices Act 1975 may also apply to these activities. 1.9 The Code is not intended to displace any duty or liability that a migration agent may have under the common law, or the statute law of the Commonwealth, a State or a Territory, in relation to a matter covered by the Code. The provisions of the Code should be read in the light of this principle. 1.10 The aims of the Code are: (a) to establish a proper standard for the conduct of business as a migration agent; (b) to set out the minimum attributes and abilities that a person must demonstrate to perform as a migration agent under the Code, including: (i) being of good character; (ii) knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms; (iii) completing continuing professional development as required by the Migration Agents Regulations 1998; (iv) being able to perform diligently and honestly; (v) being able and willing to deal fairly with clients; (vi) having enough knowledge of business procedure to conduct business as a migration agent, including record keeping and file management; (vii) properly managing and maintaining client records; (c) to set out the duties of a migration agent to a client, an employee of the agent, and the Commonwealth and its agencies; (d) to set out requirements for relations between agents; (e) to establish procedures for setting and charging fees by migration agents; (f) to establish a standard for a prudent system of office administration; (g) to require a migration agent to be accountable to the client; (h) to help resolve disputes between a migration agent and a client. 1.11 The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible migration agent. 1.12 However, the Code imposes on a migration agent the overriding duty to act at all times in the lawful interests of the agent’s client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration. 1.13 If a migration agent has a contract in force with a client that complies with this Code, but the Code is amended in a way that relates to the content of the contract: (a) the agent is not in breach of this Code solely because the contract does not comply with the amended Code; but (b) the agent must do everything practicable to vary the contract to ensure that it complies with the amended Code.

STANDARDS OF PROFESSIONAL CONDUCT 2.1 A migration agent must always: (a) act in accordance with the law and the legitimate interests of his or her client; and (b) deal with his or her client competently, diligently and fairly. 2.1A A 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) the agent is, or intends to be, the employer, sponsor or nominator of the person in a visa application or cancellation review application; (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. 2.1B If it becomes apparent that a 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 migration agent; and (d) cease to deal with the client in the agent’s capacity as a migration agent. 2.1C Part 10 of the Code then applies as if the client had terminated the migration agent’s instructions. 2.1D A migration agent who has ceased to act for a client in accordance with paragraph 2.1B (d), must, as soon as practicable, but in any case within 14 days, inform the Department that he or she is no longer acting for the client. 2.2 If a migration agent: (a) gives advice of a non-migration nature to a client in the course of giving immigration assistance; and (b) could receive a financial benefit because of the advice; the agent must tell the client in writing, at the time the advice is requested or given, that the agent may receive a financial benefit. 2.3 A migration agent’s professionalism should 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 migration agent's professionalism should be reflected in the making of adequate arrangements to avoid financial loss to a client. The Authority recommends the holding of adequate professional indemnity insurance as a suitable arrangement. 2.4 A migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience. 2.5 A 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 (b) either: (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 An agent must satisfy the requirements for continuing professional development set out in Schedule 1 of the Migration Agents Regulations 1998. 2.6 To the extent that a migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she should 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 An 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 should not hold out unsubstantiated or unjustified prospects of success when advising clients on applications under the Migration Act or Migration Regulations. 2.8 A migration agent must: (a) within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing; and (b) act in accordance with the client’s instructions; and (c) keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client; and (d) within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application. 2.9 While a migration agent cannot be responsible for misinformation provided by a client, an agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate. 2.10 A migration agent must not engage in false or misleading advertising, including advertising in relation to: (a) the agent’s registration as a migration agent; or (b) the implications of Government policy for the successful outcome of an application under the Migration Act or Migration Regulations; or (c) guaranteeing the success of an application. 2.11 A migration agent must, when advertising, include in the advertisement the words Registered Migration Agent Number, followed by the agent’s individual registration number. 2.12 A migration agent must not, when advertising, imply the existence of a relationship with the Department of Immigration and Multicultural Affairs (the Department) or the Authority, for example by using terms such as: (a) Australian Government registered; or (b) Migration Agents Registration Authority registered; or (c) DIMA registered. 2.13 A migration agent may indicate that he or she is registered, and may describe what the registration process involves. 2.14 However, a migration agent must not portray registration as involving a special or privileged relationship with the Minister, officers of the Department or the Authority, for example to obtain priority processing, or to imply that the agent undertakes part or full processing for the Department. 2.14A A migration agent must not represent that he or she can procure a particular decision for a client under the Migration Act or the Migration Regulations. 2.15 A migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, an agent must not engage in any of the following: (a) undue pressure; (b) physical threats; (c) manipulation of cultural or ethnic anxieties; (d) threats to family members in Australia or overseas; (e) untruthful claims of Departmental sanctions; (f) discrimination on the grounds of religion, nationality, race, ethnicity, politics or gender. 2.16 A migration agent with operations overseas may indicate that he or she is registered in Australia, but should not create an impression that registration involves accreditation by the Commonwealth Government for work overseas for the Commonwealth or for a client. 2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application has no hope of success) the agent: (a) must not encourage the client to lodge the application; and (b) must advise the client that, in the agent’s opinion, the application is vexatious or grossly unfounded; and (c) if the client still wishes to lodge the application - must obtain written acknowledgement from the client of the advice given under paragraph (b). 2.18 A 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 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, an agent should 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 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 migration agent should 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). 2.22 If a migration agent: (a) has been registered: (i) on a non-commercial, or non-profit, basis; or (ii) as a member of, or a person associated with, an organisation that operates on a non-commercial, or non-profit, basis; but (b) starts to act: (i) on a commercial, or for-profit, basis; or (ii) as a member of, or a person associated with, an organisation that operates on a commercial, or for-profit, basis - the agent must tell the Authority about the change as part of the agent's next registration application. 2.23 A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry. 2.24 This Code is a responsive document that will change from time to time to meet the needs of clients and to ensure the delivery of relevant, up to date advice.

OBLIGATIONS TO CLIENTS 3.1 A migration agent has a duty to preserve the confidentiality of his or her clients. 3.2 A 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. 3.2A Before starting to work for a client, a migration agent must: (a) provide the client with a copy of Information on the Regulation of the Migration Advice Profession; and (b) make a record that the copy has been provided. Note: Information on the Regulation of the Migration Advice Profession is a document produced by the Authority with information about the migration advice industry, the functions of the Authority, the legislation regulating the industry, what a client can reasonably expect from a migration agent, and complaint procedures. 3.3 A migration agent must inform clients that they are entitled to receive copies of the application under the Migration Act or Migration Regulations and any related documents if they want copies. The agent may charge a reasonable amount for any copies provided. 3.4 A migration agent must have an address and telephone number where the agent can be contacted during normal business hours. 3.5 If the agent changes his or her address, telephone number or any other details that are recorded on the Register of Migration Agents, the agent must give notice to the Department, the Authority, any review authority and all current clients of the agent: (a) in advance; or (b) not later than seven days after the change or changes if advance notice would be unreasonable in the circumstances. 3.6 A migration agent must ensure that clients have access to an interpreter if necessary.

RELATIONS BETWEEN AGENTS 4.1 Before accepting immigration work, a migration agent must consider whether he or she is qualified to give the advice sought by the client. If the agent is unsure, he or she should seek the appropriate advice or assistance, or refer the matter to another migration agent. 4.2 A referral may be made, for example, if the agent is asked for advice on matters for which he or she does not regularly provide immigration assistance. 4.3 A migration agent must not encourage another agent’s client to use the first agent’s services, for example by denigrating other agents or offering services that the first agent cannot, or does not intend to, provide. 4.4 A migration agent must not take over work from another agent unless he or she receives from the client a copy of written notice by the client to the other agent that the other agent’s services are no longer needed. 4.5 A migration agent must act with fairness, honesty and courtesy when dealing with other agents. 4.6 A migration agent who gives a written undertaking to another agent must make sure the undertaking is performed within a reasonable time, if possible.

FEES & CHARGES 5.1 There is no statutory scale of fees. However, a migration agent is expected to set and charge a fee that is reasonable in the circumstances of the case. 5.2 A migration agent must: (a) before starting work for a client, give the client: (i) an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and (ii) an estimate of the time likely to be taken in performing a service; and (b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and (c) give the client written confirmation of the terms of the service to be rendered; and (d) give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring. 5.3 A migration agent: (a) should not carry out work in a manner that unnecessarily increases the cost to the client; and (b) should, if outside expertise is to be engaged and the client agrees, fully inform the client of the likely extra cost; and (c) should, especially if a solicitor or barrister, warn clients of possible delays and likely cost involved in pursuing a particular course of action before tribunals and in the courts, for example: (i) any need to engage and pay expert witnesses; (ii) the need to meet legal costs if a case were lost; (iii) the need to pay Departmental fees and charges; (iv) the need to pay translation and interpreter fees and charges. 5.4 A migration agent should advise clients of the method of payment of fees and charges, in5.5 A migration agent must be aware of the effect of section 313 of the Act, and act on the basis that: (a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services; and (b) a statement of services must set out: (i) particulars of each service performed; and (ii) the charge made in respect of each such service; and (c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she: (i) made the payment to the agent for giving immigration assistance; and (ii) did not receive a statement of services before making the payment; and (iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related. CODEcluding Departmental fees and charges.

RECORD KEEPING AND MANAGEMENT 6.1 A migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing: (a) a copy of each client’s application; and (b) copies of each written communication between: (i) the client and the agent; and (ii) the agent and any relevant statutory authority; and (c) file notes of every substantive or material oral communication between: (i) the client and the agent; and (ii) the agent and an official of any relevant statutory authority. 6.2 A migration agent must keep all documents to which a client is entitled securely and in a way that will ensure confidentiality while the agent is giving services to the client and until the earlier of: (a) 2 years after the date of the last action on the file for the client; or (b) when the documents are given to the client or dealt with in accordance with the client’s written instructions. 6.3 A migration agent must respond to a request for information from the Authority within a reasonable time specified by the Authority. 6.4 A migration agent must act on the basis that the agent's electronic communications are part of the agent's records and documents.

FINANCIAL DUTIES 7.1 A migration agent must keep separate accounts with a financial institution for: (a) the agent’s operating expenses (the operating account); and (b) money paid by clients to the agent for fees and disbursements (the clients’ account). 7.2 A migration agent must hold, in the clients’ account, an amount of money paid by a client for an agreed block of work until: (a) the agent has completed the services that comprise the block of work; and (b) an invoice has been issued to the client for the services. 7.3 The agent may, at any time, withdraw money from the clients’ account for disbursements that are required to be paid to the Department or any other agency, of the client. 7.4 A migration agent must keep records of the clients’ account, including: (a) the date and amount of each deposit made to the clients’ account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and (b) the date and amount of each withdrawal made in relation to an individual client, and the name of each recipient of money that was withdrawn; and (c) receipts for any payments made by the client to the agent; and (d) copies of invoices or accounts rendered in relation to the account. 7.5 A migration agent must make available for inspection on request by the Authority: (a) records of the clients’ account; and (b) records of each account into which money paid by a client to the agent for fees and disbursements has been deposited. 7.6 If a migration agent provides a service to a client on the basis of a conditional refund policy, a 'no win, no fee' policy or an undertaking to similar effect: (a) the agent must have sufficient funds available to be able to cover any amount that the agent may become liable to pay to the client under the policy or undertaking; and (b) the agent must meet that obligation by: (i) keeping funds in the clients’ account; or (ii) keeping a security bond; or (iii) maintaining adequate insurance. 7.7 Nothing in clause 7.1, 7.2, 7.3, 7.4 or 7.6 affects the duty of a migration agent, who is also a legal practitioner and who acts in that capacity, to deal with clients’ funds in accordance with the relevant law relating to legal practitioners.

DUTIES OF AGENTS TO EMPLOYEES 8.1 A migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance. 8.2 A migration agent must properly supervise the work carried out by staff for the agent. 8.3 All immigration assistance must be given by a registered migration agent. 8.4 A migration agent must make all employees, including those not involved in giving immigration assistance (for example receptionists and typists), familiar with the Code, for example by: (a) displaying the code prominently in the agent’s office; (b) establishing procedures to ensure that employees become familiar with the Code including supplying employees with copies of the Code. 8.5 A migration agent should ensure that his or her employees are of good character and act consistently with the Code in the course of their employment. CODE

COMPLAINTS 9.1 A migration agent must respond properly to a complaint by a person (whether or not the person is a client) about the work or services carried out by the agent or the agent’s employee. 9.2 A migration agent must submit to the procedures for mediation as recommended by the Authority about handling and resolving complaints by the client against an agent. 9.3 If the Authority gives a migration agent details of a complaint made to the Authority about: (a) the work or services carried out by the agent or the agent's employees; or (b) any other matter relating to the agent's compliance with this Code - the agent must respond properly to the Authority, within a reasonable time specified by the Authority when it gives the details to the agent.

TERMINATION OF SERVICES 10.1 A 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. 10.2 A client is entitled to ask a migration agent (orally or in writing) to return any document that belongs to the client. The agent must return the document within 7 days after being asked. 10.3 Australian passports, and most foreign passports, are the property of the issuing Government and must not be withheld. 10.4 A migration agent must not withhold a document that belongs to a client by claiming that the agent has a right to withhold a document by a lien over it. 10.5 On completion of services, the agent must, if asked by the client, give to the client all the documents: (a) given to the agent by the client; or (b) for which the client has paid. 10.6 If the client terminates the instructions, the agent must take all reasonable steps to deliver all documents quickly to the client or any other person nominated by the client in writing. If the agent claims a lien on any documents, the agent must take action to quantify the amount claimed and tell the client in a timely manner. Note 1 The question whether, in a particular case, an agent has a lien over documents is a matter for the law of the relevant State or Territory. If in doubt, a client should seek independent legal advice. Note 2 A document includes an application, nomination, sponsorship, statement, declaration, affidavit, certificate or certified copy. See Acts Interpretation Act 1901 section 25, Migration Regulations regulation 5.01.

CLIENT AWARENESS OF THE CODE 11.1 A migration agent must ensure that at least 1 copy of the Code is displayed prominently in: (a) any waiting room or waiting area that is: (i) at the agent's place of business; and (ii) used by clients; and (b) any office or room in which the agent conducts business with clients. 11.2 An agent must ensure that a client who asks to see the Code can be supplied immediately with 1 copy for the client to keep. 11.3 Each contract made between an agent and a client must: (a) include a statement about the existence and purpose of the Code; and (b) guarantee that the client can obtain a copy of the Code, on request, from the agent. 11.4 A migration agent who has an Internet website must provide a link to the copy of the Code that is displayed on the Authority's website. CODE

Notes to the Migration Agents Regulations 1998 Note 1 The Migration Agents Regulations 1998 (in force under the Migration Act 1958) as shown in this reprint comprise Statutory Rules 1998 No.53 amended as indicated in the Tables below. Table of Statutory Rules Year and number Date of notification Date of commencement Application, saving or in Gazette transitional provisions 1998 No. 53 1 Apr 1998 R. 6 and Schedule 1:21 Jan 1999: Remainder: 1 April 1998 1999 No. 69 7 May 1999 1 July 1999 2000 No. 64 4 May 2000 1 July 2000 2000 No. 309 23 Nov 2000 23 Nov 2000 2001 No. 143 20 June 2001 1 July 2001 2002 No. 229 20 December 2002 1 March 2003 Table of Amendments ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected Schedule 2 am. 1999 No. 69 Schedule 2 am. 2000 No. 64 & 309 Schedule 2 am. 2001 No. 143 Schedule 2 am. 2002 No. 229 Notes 1. These Regulations amend Statutory Rules 1998 No. 53, as amended by 1999 No. 69; 2000 Nos. 64 and 309; 2001 No. 143; 2002 No. 229. 2. Notified in the Commonwealth of Australia Gazette on 20 December 2002. Migration Institute of Australia Limited (ABN 83 003 409 390) Clients of Registered Migration Agents should be aware of the following provisions of the Migration Act 1958. Section 313 Persons charged for services to be given detailed statement of services. (1A) This section deals with fees and rewards for giving immigration assistance to a person (the assisted person) who is: (a) a visa applicant; or (b) a cancellation review applicant; or (c) a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations; or (d) a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations. (1) A registered agent is not entitled to be paid a fee or other reward for giving immigration assistance to an assisted person unless the agent gives the person a statement of services. (2) A statement of services must set out: (a) particulars of each service performed; and (b) the charge made in respect of each such service. (3) An assisted person may recover the amount of a payment as a debt due to him or her if he or she: (a) made the payment to a registered agent for giving immigration assistance; and (b) did not receive a statement of services before making the payment; and (c) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship that the immigration assistance related to. (4) This section does not apply to the giving of immigration legal assistance by a lawyer. Section 314 Code of Conduct for migration agents (1) The regulations may prescribe a Code of Conduct for migration agents. (2) A registered agent must conduct himself or herself in accordance with the prescribed