New Code of Conduct for Registered Migration Agents coming into effect 1 March 2022
By Jason Papoutsis – Litigation Lawyer
A new Code of Conduct for registered migration agents has been prescribed by the Migration (Migration Agents Code of Conduct) Regulations 2021 (the “new Code”). The new Code takes effect on 1 March 2022.
The Department of Home Affairs has recommended that all registered migration agents familiarise themselves with the new code to determine whether their business practices need to be changed to comply with the new Code.
Registered migration agents can be disciplined or can have their registrations suspended or cancelled for failing to comply with the Code.
Any registered migration agent who is accused of contravening the new Code should obtain legal advice immediately to minimise the risk of facing a bar or cancellation of their licence for up to 5 years.
Why is there a new Code?
The new Code replaces the previous Code of Conduct which has been in place since 1998. After an independent review was conducted in September 2014, it was determined that the Code of Conduct was “unclear” and “problematic”.
What is the aim of the new Code?
After a detailed consultation with interested parties, the scope of and content of the new Code was formulated, which according to the explanatory statements, are aimed at improving the clarity and readability of the Code, and revised provisions which aim to:
- streamline the Code by removing duplicated provisions and clarifying content;
- group provisions dealing with similar subject matter together in the same parts of the Code;
- clarify and revise a migration agent’s obligations, including obligations to notify certain events;
- align provisions relating to fees and record keeping with consumer expectations and modern business practice; and
- enable migration agents to more clearly understand their obligations and implement best practices followed in comparable industries, including obligations relating to advertising, managing clients’ accounts, managing conflicts of interest, and working in a business with others who may not be registered migration agents.
Does the Code expand the powers afforded to the Office of the Migration Agents Registration Authority (“OMARA”)
The new code does not expand or alter the powers available to the Office of the Migration Agents Registration Authority (“OMARA”). That being said, OMARA still have the power to discipline Agents who do not comply with the Code, and have the power to suspend or cancel an agent’s registration.
The functions of OMARA are found under section 316 of the Migration Act 1958 (Qld) (“the Act”) which sets those functions out as follows:
(a) to deal with registration applications in accordance with this Part; and
(b) to monitor the conduct of registered migration agents in their provision of immigration assistance; and
(c) to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and
(d) to take appropriate disciplinary action against registered migration agents or former registered migration agents; and
(f) to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and
(g) to monitor the adequacy of any Code of Conduct; and
(h) such other functions as are conferred on the Authority by this Part.
Migration Agents Code of Conduct Regulations
The New Code imposes a comprehensive set of duties onto registered migration agents that can generally be divided into two categories:
- General Duties; and
- Duties in the Agent-Client Relationship.
General Duties
General duties which apply to registered migration agents can be found in Part 2 of the Regulations, and include duties relating to:
- Australia’s immigration system;
- maintaining skills and knowledge;
- practice management;
- keeping Authority, clients, Department and review authority informed of matters relating to migration agent; and
- responding to requests from Authority for information or documents.
Duties in the Agent-Client Relationship
Duties which apply to registered migration agents can be found in Part 3 of the Regulations, and include duties relating to:
- General duties owed to clients (for example, confidentiality, informing clients of conflicts of interests, etc);
- preliminary requirements for giving immigration assistance (for example, giving the consumer guide to clients and arranging access for interpreters);
- service agreements;
- fees and disbursements;
- client documents;
- record keeping;
- ending the agent-client relationship; and
- legal professional privilege.
The categories of duties set out above are not a comprehensive description of each duty. Registered migration agents should review Part 2 and 3 of the Regulations in their entirety to ensure that they familiarise themselves with the detailed description of each duty, to ensure that their practice is compliant with the New Code.
Investigations for Breaching the Code of Conduct
Section 314(2) of the Act requires a registered migration agent to conduct themselves in accordance with the prescribed Code of Conduct. If a registered migration agent is alleged to have contravened the Code of Conduct, that agent can be investigated and disciplined.
As set out above, section 316(1)(c) of the Act allows OMARA to investigate complaints in relation to the provision of immigration assistance by that registered migration agent, and have the power to discipline an agent pursuant to section 316(1)(d) of the Act.
Registered migration agents who face serious disciplinary action for allegedly breaching the Code of Conduct will normally be notified in writing. This is because section 309 of the Act requires OMARA to notify the Agent if the Authority plans to suspend or cancel a registered migration agent’s registration under section 303 of the Act.
What should Agents do if they are notified of an alleged breach of the Code?
The best pre-emptive strategy for a Registered Migration Agents would be to familiarise themselves with the new Code to ensure that it is strictly complied to, and to minimise the risk of allegations arising in the first place.
Despite an Agent’s best endeavours to comply with the Code, it is possible that an Agent may face allegations of misconduct at some point throughout their career through a ‘show cause letter’ received from OMARA.
An agent’s first instinct might be to respond themselves without legal assistance in order to save costs. This strategy often backfires since agents are not formally trained to respond to show cause letters (for more information, see our article on responding to show cause letters).
OMARA publishes the decisions made against migration agents here: https://portal.mara.gov.au/disciplinary-decisions/ . Upon reviewing those decisions, it is evident that when agents choose to respond themselves, it often leads to adverse disciplinary outcomes including suspension, cancellation, and bars.
Responding to OMARA’s show cause letters is often a complex endeavour that should be left to legal professionals experienced in disciplinary law. While disciplinary decisions made by OMARA are not bound by the technicalities, legal forms, or rules of evidence (see section 311 of the Act), a substantial body of case law exists which can be utilised (whether by applying or distinguishing that case) to assist in preparing an agent’s response.
One of the overriding considerations in disciplinary law is whether or not a person is a “fit and proper” person to undertaking the activities in question. The formula of a ‘fit and proper’ migration agent, must be construed in the light of the legislative context which, for agents, involves an examination of the registration scheme underpinning the migration advice profession (and which includes the Code of Conduct).
Why Choose Potts Litigation Lawyers?
Registered migration agents who receive letters containing allegations from OMARA, and who realise the importance of maintaining their registration, should engage litigation lawyers experienced in this area of Migration law to formulate an appropriate response.
Seeking legal advice early minimises the risk of adverse action being taken against registered migration agents. Furthermore, obtaining legal advice early may also help reduce a person’s total legal costs since effective representation can resolve a matter early and without further action being taken.
Potts Lawyers is experienced at assisting migration agents facing allegations of misconduct, including allegations that those agents have not complied with the Code of Conduct.
Agents who receive a notification pursuant to section 303 of the Act, or who are dealing with client complaints of a serious nature, should contact Potts Lawyers to organise a free consultation on their legal position and a strategy aimed at protecting their registration to the fullest extent possible.