salH Posted September 22, 2016 Share Posted September 22, 2016 (edited) Hi I will keep this a little vague for now. I am trying to help friends who are here from overseas and who were originally here on visitor visas in the advice from an immigration agent (Mara registered) but who it subsequently turns out had not even submitted the 457 that they thought the agent had. Only reason given is workload, and basically as a lawyer myself hearing about how all this has gone, I think the agent has been incompetent / negligent and now our friends are stuck in different countries, one with their young children and can't be reunited until the outcome of the 457 is decided. Doesn't look as though they have a case number yet. I don't think they should have come here on the visitor visas as they were carrying out business activities. The ins and outs are complicated but my real question is, what redress do they have in terms of getting someone to look at what the agent has done, requesting the file, etc? I think there is evidence of our friends' intention as to their reason for being in Australia in correspondence, emails and phone calls chasing an agent who hadn't done what they thought s/he had, and I think that is probably important in the evidence to be submitted for the 457. I'm not here on a 457 so am not familiar with all the supporting evidence possible / required. But I think they have failed 2 bridging visa applications because the original mistake is an automatic black mark. If that mistake is due to an agent's negligence, what then? Anyone in SA that can help? MARA's website doesn't work. I've tried to look up complaining about an agent. Our friends have tried but not been given any numbers / registration / application numbers that can link them to their application. My thoughts are to innocently ask for the file to be transferred to a 'local' lawyer and have it reviewed for past mistakes and potential recourse / where to go from here. Thoughts please? Thanks Sent from my iPad using Tapatalk Edited September 22, 2016 by salH Quote Link to comment Share on other sites More sharing options...
Mark Northam Posted September 23, 2016 Share Posted September 23, 2016 Hi SalH - Your friends have a right to get a copy of their file including all correspondence to/from DIBP and any documents lodged with DIBP or received from DIBP per the MARA Code of Conduct - usually a polite call will get this done. Once that's in hand, it should be fairly clear what has been lodged (and not), plus there is also the option of obtaining a copy of their file from DIBP directly using Freedom of Information access (use DIBP form 424A). Re: recourse if improper advice, etc has been given, MARA is likely the best avenue to follow for that, however getting the clients proper advice at this point would be top priority in my view. Please feel free to contact me directly if I can assist in any way with your friends. Best, Mark Northam Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 Thank you that is amazing. I have managed to find out about the option of obtaining the copy of the file when I called Mara this morning. They told me about the code. Couldn't research it because their site was down. I agree, need urgent advice and need to know what has been lodged and copies of. Recourse with Mara and complaint, they tell me, can't affect their application. But I'm concerned about something else now. 457 looks like the wrong visa.... My friend is calling round in a minute and I will get all the info from her I can. What do you suggest she says on the phone to the agent? " we are just reviewing our file and our family situation, can I please have a copy of your file including all the applications made and papers lodged with DIPB" ? Does that raise a red flag? From my educated (though not in Australia!) perspective looks like negligence to me. Do people cover up and remove correspondence? Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
Mark Northam Posted September 23, 2016 Share Posted September 23, 2016 Hi SalH - Your proposed request text looks fine, however I expect a file request is bound to cause some concern with the agent, especially if the clients have expressed dissatisfaction previously regarding what's happened so far on the case. Probably worth lodging the FOI request I mentioned in addition to requesting a complete copy of their file from the agent - by putting both together you'll likely have a good picture of what's happened so far. Best, Mark Northam Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 Thanks again. I've passed that info on. I'm going to get her to push for the info from both people. Apparently 2 weeks ago my friend did ask for copies of something but didn't get anything. I've suggested she mentions the code this time. Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 (I've also asked her to talk to her employers and suggest they get a second opinion. Mara is still down I can't check the registration. ) Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
George Lombard Posted September 23, 2016 Share Posted September 23, 2016 In South Australia I would suggest contact with Brian Jones or Libby Hogarth or Lachlan Riches - the MARA search facility should make it easy to identify those three, I'm surprised that the site is down for you. Cheers, George Lombard Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 It was down for them too when I rang, it's up now though. Will do more on there. Thank you for the recommendations too. Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
Wei Shu Posted September 23, 2016 Share Posted September 23, 2016 Not sure why the applicant has not been provided with a copy of the files, however only the applicant can make a request for a copy of files related to his or her application, but not of sponsorship or nomination. The 457 visa can only be lodged soon after the sponsorship and nomination (DIBP's system sometimes allows you to pay for all three application in one go, or one by one. You can not lodge visa application prior to the sponsorship and nomination. The agent may be waiting for the documents from the employer (mostly form accountant) for a proper sponsorship and nomination applications, hence the 457 visa application yet to be lodged. Some agent may lodge the visa application after the sponsorship and nomination been approved, especially for those offshore applicants, depends on circumstances. In any event, it is the responsibility of the agent to explain orally, as well as in writing to the clients, on procedures of the applications being lodged. Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 I'm going through the code now. It seems none of the management of client work clauses have been complied with. My friend has nothing in writing though I wonder whether that has gone to her employer and bypassed her. Mara told me on the phone she can request her file. But on reading section 10 it looks like that applies to the termination of instructions rather than just at any time asking for a copy? She hasn't terminated the instructions yet. Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
Wei Shu Posted September 23, 2016 Share Posted September 23, 2016 There is other possibility of the agent was appointed by her employer, therefore all the communications may took place between employer and the agent, and since it may not yet reach to the visa application stage. If the fees paid by the sponsoring business, there would have no written agreement between agent and the visa applicant. The Clause 4.4 of COC provides that one can not take over the work prior the reception of a copy of written notice by the client (even if a friend) to theother agent that the other agent’s services are no longer needed. Quote Link to comment Share on other sites More sharing options...
AJ Posted September 23, 2016 Share Posted September 23, 2016 How is she working if she doesnt have the visa sorted out yet? Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 She's not working. She's stuck here on a bridging visa while she waits for more news. Their initial visa was a business visit visa under which they were allowed to set up meetings for the program their employer was establishing with their help. Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 There is other possibility of the agent was appointed by her employer, therefore all the communications may took place between employer and the agent, and since it may not yet reach to the visa application stage. If the fees paid by the sponsoring business, there would have no written agreement between agent and the visa applicant. The Clause 4.4 of COC provides that one can not take over the work prior the reception of a copy of written notice by the client (even if a friend) to theother agent that the other agent’s services are no longer needed. Yes. I think her employer must be the client. I'm not acting for her in any way. I'm trying to find out where she needs to go next and yes I agree that she can't get her file till someone withdraws instructions and appoints someone else. MARA didn't say it like that to me, so I found out the situation about termination and requesting papers from the code when I was able to get on their site. Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
Guest Posted September 23, 2016 Share Posted September 23, 2016 @AJ (and anyone else who is not an agent but who might be about to post in this thread :cute:) this is the Ask An Agent section, so lets not post more non agent replies here. Thanks Quote Link to comment Share on other sites More sharing options...
AJ Posted September 23, 2016 Share Posted September 23, 2016 I do apologise for not checking what section it was in! cant have that Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 Thanks, can you delete any non agent posts snifter, as I don't know who is who on the forum. Also: thanks to those agents who have responded. I have a good picture in my head. I've given my friend some pointers and told her where to go / what to ask and what info to check with her employer. Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
Wei Shu Posted September 23, 2016 Share Posted September 23, 2016 Yes. I think her employer must be the client. I'm not acting for her in any way. I'm trying to find out where she needs to go next and yes I agree that she can't get her file till someone withdraws instructions and appoints someone else. MARA didn't say it like that to me, so I found out the situation about termination and requesting papers from the code when I was able to get on their site. Sent from my iPad using Tapatalk You may still not be able to get a copy of the file even if the service been terminated, unless the sponsoring business gave a consent, or realistically get a copy from the business, rather then ask the agent for it. I have been requested, from time to time in the past, by the sponsoring business to ensure them, not to disclose any information to the visa applicant, some employer had even refused to use my service because they don't like use same agent to act for both sponsorship/nomination and visa application. Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 Yes. I had also wondered too about whether our friends need separate representation. There's nothing to my knowledge to indicate that their employer won't help them in obtaining info etc. I will see what response first comes from their enquiries, and then suggest they get their own advice. I think their employer would even probably pay for it. There's a lot invested in making this situation work from the employers point of view. Moving them to another country to start again will be very costly. It's in their interest to make this work. Looking at the subclass occupations now though after what I've discovered, I don't think they ever had a hope with the 457. I don't think it fits. And then one looks at the obligation to be frank and candid in the code. I hope the agent gave a fair assessment. If s/he did, this is an extremely regrettable, avoidable situation. Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
salH Posted September 23, 2016 Author Share Posted September 23, 2016 I just want to say again, you guys are amazing. You've really helped me get to the bottom of this. Sent from my iPad using Tapatalk Quote Link to comment Share on other sites More sharing options...
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