Receiving a Commission
That case of Chang v MARA is obviously an extreme case. Here is what the Code of Conduct says about commissions in paragraph 2.2:
If a registered 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.
Many companies are offering huge commissions on various services associated with subclass 457 visas. The existence of such commissions have to be revealed to the client. Take care also that the level of commission does not create a conflict of interest. Clients should always be given alternatives to such offers.
See also the discussion on page 71 of the Ethics Toolkit. One should not direct a client to a particular product just because the agent receives a commission. If there is a cheaper or better product the client should be informed of that.
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:
(d) there is any other interest of the agent that would affect the legitimate interests of the client.
Recommending a service to a client predominantly for the reason that the migration advisor would receive a commission would be a conflict of interest.
The Business Significant Investor visa (SIV)
Migration advisers may end up inadvertently assisting unscrupulous people moving illegally acquired assets out of the home country.
The potential for the SIV to perform this role is obvious.
On 23 October 2014, the Trade and Investment Minister Andrew Robb made this public statement:
“There is co-operation between our two police authorities [China & Australia] to try to flush out some of these corrupt officials,” he said.
“We are re-assessing integrity measures.”
The minister also said that the Australian immigration authority would refer cases to Chinese police if any improprieties were discovered during the mandatory security and character screening process.
“If there is any suggestion that a person has accumulated wealth through illegitimate means, all materials are referred to local authorities in the source countries and in the case of China, to the Chinese police,” he said.
The minimum standards of honesty and fair dealing
Let’s look at page 6 of the Toolkit and each of the minimum standards of honesty and fair dealing. The first one is an ‘obligation to act in the legitimate interests of the client’.
This comes from Clause 2.1 of the Code[4] which reads :
2.1 A registered migration agent must always:
(a) act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently and fairly.
It has to be recognised that from time to time, that the legitimate interests of the client may not co-inside with the interests of Immigration. Migration agents are not officers of the Department. Whilst agents must scrupulously avoid telling lies on behalf of clients, a migration agent as an advocate of the client is entitled to put the client’s best case forward which may involve not revealing negative aspects of a client’s case.
Again let’s look at page 6 of the Toolkit and the second standard postulated which is:
‘an obligation to deal with your client competently, diligently and fairly
Competence and diligence are not always easy to define. Have a close read of this discussion below.
YOU DON’T NECESSARILY HAVE TO GET IT RIGHT – NOT ALL MISTAKES AMOUNT TO PROFESSIONAL MISCONDUCT
The law of professional negligence has always been that one doesn’t necessarily have to get it right, but one does have to perform one’s task in accordance with a proper degree of care and skill.
A good example of this principle is Heydon v NRMA [2000] NSWCA 374 (21 December 2000). There Malcolm J endorsed what was said by the trial judge in relation to high level corporate law advice given by Heydon QC (now a High court judge) [paragraph 138]:
“The defendants were bound to exercise due care, skill and diligence, bringing to their task the competence and skill usual amongst solicitors or barristers (as the case may be) practising their profession and taking proper care in what they did….Mr Heydon professed to be, and was, expert in corporations law, and the care, skill and diligence to be exercised was that appropriate to a member of the relevant profession having such specialist expertise…
- His Honour noted, however, that “the duty of care is not a warranty of perfection”… This is another way of saying that there is not a duty to give “correct” advice.
[Footnotes and references omitted].
At the risk of oversimplification, advice was being given during a period when a separate court case was winding its way through the courts. That separate court case was ultimately decided by the High Court and concluded that the decision of the intermediate appeal court was wrong. The advice by Heydon QC was in part influenced by the decision of the intermediate court of appeal.
Basically it was not Heydon QC’s job to try and predict what would happen in the High Court.
So getting it wrong is not necessarily proof of either negligence or indeed misconduct. What is needed to prove negligence is a breach of the requisite duty of care. In the context of the shifting sands of migration law, the Heydon decision throws some light on the difficult task advisers have. A rational strategy which turns out to be wrong may not be negligence nor misconduct.
Even in the most well run office errors will occur. In the High Court decision of Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (3 May 2001), Kirby J made this very pertinent observation about a failure to lodge a Tribunal application in time:
- Procedural slips can happen even with the most diligent and conscientious of parties and their representatives. Anyone who denies this has had no practical experience of the law’s operation…. For at least a century, the courts and the law in Australia have marched away from a rigid, unyielding application of rules as to time towards a more realistic acceptance of the fact that human error is inescapable and priority should be given to substantive merits.
Unfortunately, Kirby J’s exhortation has not made it into the Migration Act and Regulations where generally time limits are strict with little leeway for extensions of time. In fact it is missing the time limits imposed by the act and regulations which is the common error made by migration agents and lawyers practising in migration law.