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LML6001 Practitioner Legal Skills for Australian Migration Law Case Study Sample

SCENARIO

You are a registered migration agent and have been practicing for over 5 years. You have thoroughly enjoyed practicing in this industry. You have witnessed some unfair outcomes in terms of delegates making decisions where they have misapplied the legislation.

It has been particularly disheartening in these situations, where your clients who are in Australia, did not have the funds or the will to lodge a review application to the Administrative Review Tribunal, despite you offering to assist them at a reduced fee at the review application stage.

You have always thought that it is unrealistic and unfair that after clients having waited for a long time, sometimes for over two years, for a decision on a visa application and once it has been refused, they only having 35 days to remain in Australia to sort out their affairs whilst on a bridging visa.

You are also of the view that it is unfair to the Australian community, as usually your clients who are subject to refusal are employed and in most cases the employer reaches out to you to see if there is anything they can do to help your clients remain in Australia as they are so valuable to their business and would impact the business and the clients.

Over the years, to help alleviate the pressure on your clients that have been refused a visa, you have advised them to apply for a Protection (Class XA, Subclass 866) visa, which would generally provide them with an additional few years, due to the processing time, to remain in Australia on a bridging visa to sort out their affairs before having to depart the country.

When advising clients of the Protection visa option, you generally assist in the background, you do not issue a service agreement and provide the advice pro-bono as a fairer approach in these circumstances. Generally, you say that it is up to the client to decide if they would like to pay you anything, but you do not expect it. Your community has awarded you many certificates of appreciation for assisting your community in this way. In 2024, the Government released the following media release “What are you doing to safeguard Australia’s protection visa system?”

Question

In light of these facts, have you breached any obligations under the Migration (Migration Agents Code of Conduct) Regulations 2021 and what steps would you implement to meet your obligations? You must support your answers by reference to the specific legislative provisions.

Solution

Introduction

The Migration (Migration Agents Code of Conduct) Regulations 2021 (the Code) requires registered migration agents to meet the statutory obligations under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) by adhering to the professional conduct contained in the Code . The recent government reforms for the Assignment Help regarding the integrity of the Protection Visa system require an evaluation of whether migration advice complies with the legal and ethical standards. This analysis discusses possible obligations breach and the measures to take to assure compliance.
Potential Breach of Obligations

1. Provision of Advice on Protection Visas Without a Service Agreement

According to Regulation 8 of the Code, migration agents are required to act in accordance with the law and maintain comprehensive records of all services provided to clients . It may be a breach of this requirement if the failure to issue a formal service agreement is combined with advice on Protection Visas. Transparency and accountability in migration advice services depend on such agreements. The service agreement is a legal agreement between the migration agent and the client that sets the expectations between them, so that disputes are unlikely to occur, and professional obligations are met.

2. Facilitation of Non-Genuine Protection Visa Applications

The Australian Government has clearly said that registered migration agents should not help people who do not genuinely fulfil Australia’s protection obligations when applying for Protection Visas. Section 9 of the Code requires migration agents to act with honesty and good faith . The giving of advice in such a way that produces applications that are not of substantial merit may constitute facilitating misuse of the Protection Visa system and therefore contravene professional and legal obligations. This is especially important considering the government’s recent reforms to prevent exploitation of the Protection Visa system.

3. Potential Breach of Regulation 23: Duty to Act in the Best Interests of the Client

While the purpose of advising clients on Protection Visas may have been to give them more time to make their arrangements before they leave, such advice must be judged in terms of the duty to act in the best interests of clients. Migration agents are required by regulation 23 of the Code to avoid misleading clients as to their prospects of success . The failure to act in the best interests of the clients may be constituted by the advice to lodge Protection Visa applications as a strategic measure rather than as a result of a genuine claim for asylum. In addition, particularly if giving misleading advice, there are potential legal and financial consequences for clients.

4. Failure to Maintain Professional Integrity

The Code of Conduct requires migration agents to adhere to integrity in their professional dealings, pursuant to Regulation 31 of the Code . A lack of clear documentation, service agreements and potential facilitation of applications that are not meritorious could be indicative of conduct that falls below the standards of integrity expected of migration agents. Additionally, failure to keep adequate records could expose a compliance risk under the Migration Regulations 1994 . Maintaining public trust in the migration system is dependent on professional integrity and therefore any failure to live up to these standards will result in disciplinary action and damage to your reputation.

Measures to Ensure Compliance and meet obligations

The following measures will be taken to rectify any potential breaches and adhere to regulatory obligations.

Issuance of Service Agreements for All Clients

In the future, when dealing with clients, there will be a formal service agreement that will include the scope of services, fees, and legal obligations. This is in line with Regulation 19 of the Code which requires clear terms of engagements to improve transparency and accountability . Service agreements are one of the most important tools that ensure that the client and the migration agent are both aware of their rights and responsibilities.

Provision of Transparent and Legally Sound Advice

Advice on Protection Visas will be given based on a client’s genuine engagement with Australia’s protection obligations. Every case will be rigorously scrutinized to ensure compliance with the Migration Act 1958 and related regulations . It is crucial to give clear and true advice to clients so that they are aware of their situation and can make an informed decision on their visa applications.

Adherence to Ethical Conduct and Reporting Mechanisms

Professional integrity will be maintained by strict adherence to ethical guidelines under the Code. It includes not engaging in practices that may assist with unmeritorious applications and reporting any unethical conduct by other migration agents to the Office of the Migration Agents Registration Authority (OMARA) . Reporting mechanisms are important instruments for the profession’s integrity preservation and for timely and appropriate handling of misconduct.

Enhanced Record-Keeping and Documentation

The following will be adopted as a structured approach to record keeping:

• Keeping records of consultation or legal advice given.

• Making sure that all clients receive signed service agreements.

• Assessing eligibility for Protection Visits in order to support transparency and accountability. It is important to ensure that agent keeps proper records in order to prove compliance with professional and legal obligations. It also acts as a safeguard in case of some disputes or a regulatory audit.

Participation in Continuing Professional Development (CPD)

Professional development activities will continue to be done to make sure that migration advice remains compliant with recent legislative changes. CPD activities will enable participation in updated knowledge on ethical obligations and regulatory requirements. Migration law is an ever-changing field, and continuous learning is vital to ensure that migration agents are always well informed and able to give accurate legal advice.

Client Education and Informed Decision-Making

The following will be implemented as a structured approach to client education:

• Writing out the Protection Visa process and providing written materials.

• The risks and consequences of lodging non genuine Protection Visa applications are clearly explained.

• Encouraging clients to seek independent legal advice should be necessary. By empowering clients with the right information, clients are left to make informed decisions on their migration options. It also prevents vulnerable people from being tricked by operators who are not trustworthy.

Conclusion

An evaluation of past practices suggests some actions may have inadvertently breached provisions of the Migration Agents Code of Conduct 2021. A structured, transparent way of dealing with these concerns will be adopted. By sticking to statutory and professional obligations, migration agents ensure that they can keep on providing clients with effective and lawful assistance and maintain the integrity of the migration system. The implementation of these measures will not only guarantee the compliance with the Code but will also reassert the ethical obligations the profession by itself prescribes.


 

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