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Immigration Daily News Conduct By A Migration Agent That Should Never, Ever HappenAustralian Immigration Daily News
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Conduct By A Migration Agent That Should Never, Ever Happen
A complaint about the conduct of a senior migration agent has recently been submitted to the Migration Alliance which provides a graphic illustration of the type of client interaction that we believe all Registered Migration Agents should be extremely careful to avoid.
The story, as reported to MA, is that the agent had been engaged to assist a same-sex couple with a partner visa application.
Unfortunately, after the applicant's medical exam had been completed, the agent took it upon herself to call the applicant and to conduct a conversation with him while the applicant was using a speaker phone at his work place.
As reported to the MA, the conversation proceeded along the following lines:
“X, did you know you are HIV-positive? And that you may be refused a visa and be deported and now have to submit a medical waiver to show why you should stay here? And even if they do allow you to stay they are saying you will cost the government a lot of money to keep you alive with treatment and being you are young is a lot more than a person of say 50 who will dies of AIDS soon anyways. Also, I know you want to go back to working as a Y, how are you going to get a job at Y when they won't employ people who have contracted AIDS?”
What's wrong with this picture? Why don't we start with: “Just about everything!”
First and foremost, why on earth would the agent have carried a conversation like this on over the phone with the client? Wouldn't it have been a far better idea for the agent simply to contact the client and ask him to come in to her office to meet with her, so these very personal matters could have been discussed in a private setting?
More to the point, if the agent was determined to discuss these matters by phone, shouldn't she have made a careful and conscientious effort to make sure that the client was not using a speaker-phone, and that no part of the conversation could possibly be heard by anyone else?
How about something like this:
“Hello, X. I have some very important matters that I want to talk with you about your visa application. I want to be certain that I respect your privacy and confidentiality. Is it convenient to talk at the moment? It sounds like you've picked up my call on your speaker-phone. Can you pick up the line so we can be sure this discussion remains private?”
How hard would that have been?
As it was, the conversation was likely overheard by others at the applicant's workplace.
Not only was this call poorly handled, it was potentially in breach of the Code of Conduct that governs the conduct of RMAs.
As readers will be aware, Paragraph 3.1 of Part 3the Code requires that a RMA has a duty to preserve the confidentiality of his or her clients.
Furthermore, Paragraph 3.2 of the Code specifies that an RMA must not disclose or allow to be disclosed confidential information about a client without the client's written consent.
Of course, the professional duties imposed by the Code are not simply a “theoretical matter”.
A breach of the Code can potentially result in professional discipline! Section 303(1) of the Migration Act provides that the Migration Agents Registration Authority can take action, ranging from a caution all the way up to outright cancellation, in cases where the Code has been breached.
And what about the apparent insensitivity of the agent towards her client?
By any standard, it is terrible client relations to call someone up and ask: “Did you know you have a potentially life-threatening disease?” Suppose the client didn't know? Wouldn't the client naturally be terribly terribly distressed to receive such a call? And even if the client did know, but had only recently discovered the diagnosis and was trying to come to terms with how to deal with it. Is this the kind of call anyone would want to receive from a migration agent?
Aren't there about 2 billion different ways that this situation could have been handled, with greater sensitivity and compassion?
And wouldn't the agent want to bring the client into her office to address this matter, so that she could carefully and thoroughly explore whether there was a basis for the client to obtain a health waiver under PIC 4007, rather than taking an approach during the conversation that would be highly likely to upset and frighten the client, by referring right away to possible visa cancellation and deportation? Mightn't there be a better way to deal with this than dropping a bombshell on the client over a speaker-phone?
And what about the agent's advice to the client essentially to “forget about” getting work with employer Y, because they would never employ someone who was HIV-positive?
Perhaps before giving the client such discouraging, not to mention incorrect “advice”, the agent would have done well to check the provisions of the Disability Discrimination Act. The agent would have discovered that under section 4 of the Act, being HIV-positive is a condition that falls within the meaning of a “disability”, which is defined as “the presence in the body of organisms capable of causing disease or illness”. And if the agent had checked section 15 of the Act, she would have learned that it is unlawful for an employer to discriminate against another person on the basis of a disability in determining who should be offered employment. So in fact the agent's suggestion that the employer would not apply the applicant because he was HIV-positive was simply not a correct statement of Australian law.
So what ultimately happened here? The agent not only lost the client to a migration lawyer, but a complaint was filed against her with the OMARA.
Not the type of outcome that an RMA would like to have, is it?
Comments
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Friday, 22 April 2016i know who this agent is, she is one who is well known in the industry and is going down on this case i can assure you all departments are now all over this... i feel for the poor client and his partner having to go through this terrible incident
what a mess and a disgrace this is, and an embarrassment for australia
i am glad i left the MIA for this reason, the person in charge has no idea, as you can see here!!! everyone has to get behind this and make sure this person is not allowed to work in our industry any more... -
Saturday, 23 April 2016
Certainly, Best practice is to bring the applicant in to the office (If they live in the same location) BUT many do not and it is not known if the client lived in the same city.
Relating to the employment issue, in most cases the discrimination would be a breach of law, but If the applicant was a medical professional, Nurse etc they will be unable to gain employment in that occupation without the facility being able to accommodate a scenario with no client contact. So knowing who employer Y was would affect the advice regarding this point I believe.
Since regulations and licensing for Registered Nurses require under the competency standards that the nurse will not place themselves in a position that exposes a patient to risk they would have to refuse any work allocation that did this. This standard is imposed on the nurse as part of his/her responsibilities under the license.
A blanket statement about the employment and application of the Anti Discrimination Act do not change the responsibilities of the health professional to avoid placing clients/patients at risk. This immediately eliminates Nurses from, emergency, ICU, CCU, Midwife, Theatre etc.
Not all Migration lawyers are highly skilled in migration law and likewise for Migration Agents. The Agent should have sought advice from an experienced agent to confirm the advice before giving it. Never hurts to double check.
What is clear is that there are considerations to imparting information to a client. Special attention should have been paid to this and certainly established the client was in a privacy setting before discussing the issue.
Failure to provide a sensible solution to the new problem for the client also shows lack of professionalism in this case.
I have had to deliver the same information to a client overseas once. It is not easy. In my clients case I could not understand it and after 9 months with the RMO it was established the doctor uploaded the wrong client's medical file to my applicant's medical assessment. Nine months of stress on the client and not even an apology.
Bottom line is the assessment of the approach by the Agent is correct, they should have known better and should have considered the privacy requirements in this extreme situation. Keep client's privacy at the highest levels. -
Saturday, 23 April 2016
What a heart breaking article to read
To actually call and disclose or ask someone if they know they are HIV
Is a breach of privacy and will be dealt with to the full I am sure.
I am confused on the part where she says he can't work a certain profession due to having HIV, 1) who is that migration agent to tell this information without fact checking
2) what a double blow on the phone being told this as well when it's also wrong
My major issue with all this reading is the migration agent is handling people's lives and what distress she has caused and how uneducated she is to be making these phone calls
There needs to be accountablity and justice served here and I would like the outcome also posted on this site.
I am sure the former clients are going to getting a huge compensation claim out of this from what I have read and a migration agent will be going into early retirement.
Thank you for also posting in the article how the situation should of been handled as well
I applaud you on posting this article
If you do know the applicants who have suffered through this ordeal please give them my best wishes and assure them that we are not all like this and the outcome will be in their favour and the migration lawyer will not be supported by anyone in the industry for this horrible incident
Best wishes
Faye -
Sunday, 24 April 2016
I have read this article as much as it seems a bit over the top and hard to believe any migration agent would actually be that stupid to do this to a client is beyond me.
I also noticed one of the comments suggests that this senior migration agent is a member of MIA
If this is the case and from what seems to be a very serious breach of privacy along with agent misconduct
The MIA would also need to be involved to assist in the matter
I have read over the MIA code of conduct (see link)
http://www.mia.org.au/documents/item/484
And it would be very obvious after reading the code of conduct this senior agent has breached numerous codes of conduct rules set out by the MIA and they must take action.
I am more than confident that the President of the MIA, Angela Chan would be taking this matter very serious and doing their own internal investigations.
Angela Chan along with other board members would be accountable to ensure that all members are following the MIA rules.
I have known Angela for over 20yrs and I have my differences with her in the past, however Angela Chan has had many years of professional experience in migration law and would not be taking this matter lightly to ensure the appropriate disciplinary action is undertaken against the Senior Migration agent to reflect the code of conducts the MIA have.
This issue will really see what a wonderful president Angela Chan really is and why the members voted her into such a powerful position
I can assure you she will be all over this serious matter to ensure that it never happens again and will be guiding the senior migration at fault here to work with OMARA to resolve the issue -
Monday, 25 April 2016
Why he used a speak phone? Does he aware of if? Why didnt he just tell the agent not to proceed with the conversation because he was on a speak phone which everyone else was listening?
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Tuesday, 26 April 2016
I certainly agree that he (The applicant) should have taken the phone off speaker but perhaps the applicant did not know what was coming in the conversation and did not take the phone off speaker before he was told he had HIV, because he was unaware it was coming.
The issue is the way the delivery was handled. Illnesses are very sensitive if the applicant does not already know about them and need to be addressed correctly and with consideration of consequences and trauma to the applicant.
You would expect to put the client in a place with support before telling them they have such a serious life-threatening disease -
Monday, 25 April 2016
Dear Migration Alliance,
I have been sent this link by one of your members over the weekend and had this issue brought to my attention as a matter serious of concern.
I currently work in the area of HIV prevention and support for the last 12 years just to give you my background and why I am posting this post on your blog.
The incident here is an example of not only how unprofessional the senior migration lawyer has conduced herself, but also highlights the basic issue here of human rights violation/ discrimination and privacy breaches, what you have printed as breaches is correct.
Our organisation also works very closely with the HIV/ AIDS legal centre of NSW (HALC) sadly this is not an isolated case. The Lawyers at HALC have had many complaints made by clients who have had their HIV condition exposed without there consent.
In Saying this, the above case is what I would call extreme based on the other claims that have been made and the way it was handled by the migration agent.
The link has been shared to a number of my fellow LGBT colleagues and has been a hot topic of conversation as to how this was allowed to happen without proper process in place when a medical exam from immigration has failed in an application for a visa. When the medical exam has failed due to HIV then there should be a process put in place that follows privacy laws to protect the client when and how they are informed, a migration agent by law cannot call their client and question their HIV status nor give such false information that they cant get a job due to their HIV status.
There is many HIV services such as ACON who can assist to lodge complaints to various departments to have the Senior Migration agent not only accountable for her unprofessional actions but also seek recommendation that she no longer able to be working in your industry.
I have also clicked on your "code of conduct" link and see that these were to be actually enforced and actioned with these breaches then there would be no reason for the migration agent to be still allowed to hold their accreditation or be suspended pending outcome of the case.
From my experience I know your own internal complaints department OMARA can sometimes take up to a year to finalise and hand down a finding to a migration agent and what action is to be taken, this does not help your visa applicants here who have now been traumatised by this issue and left to seek counselling from one of our support agencies.
There is a lot of essential information easily available not just for the health care sector but applicable across any sector or industry such as migration law when it comes to client privacy.
I am hoping that "Migration Alliance" by posting this article that you will see this incident through to ensure that the MIA are fully looking into the claims of this senior migration agent and are standing by their rules and code of conducts to be enforced regardless of the OMARA outcome.
I also suggest that a complaint is lodged with the
Australian Privacy commission
The human Rights commission
Anti discrimination department
Legal advice from a specialised lawyer to proceed with a civil claim for compensation for this client who had his HIV diagnosis disclosed by the Senior Migration agent without permission and the trauma suffered, he can also contact HALC for free legal advice on this matter too.
Here is some helpful links to pass on to the your team and educate
http://halc.org.au/#sthash.ctbqftPH.A80uuFHg.dpbs
HIV privacy and the law
http://halc.org.au/wp-content/uploads/2012/10/Final-Version-for-distribution.pdf
HIV in the work place and the privacy laws
http://www.acon.org.au/support-and-services/training/#HIV-awareness
Thank you -
Tuesday, 26 April 2016
Angela Chan what are you going to do about this mess ?
everyone will be waiting to see how you handle your MIA member and what action you are taking, we have heard you have not been available for any comment and gone to ground
Where is your "available for media comment" that you are so famous for. -
Wednesday, 27 April 2016
This is a concerning event (assuming that is in fact what happened - we only have one side of the story of course).
Of course the fact that MARA can take action doesn't mean they will. if that was a law society complaint they would be all over this like a rash but MARA? They cant even deal properly with the Eddy KANG's of the world. -
Wednesday, 27 April 2016
Do not know who the agent is but its not important, we all colleagues. From the posts here, it seems a legally qualified and a senior registered migration agent, so she(?) should have experience and skills in communication.
It was certainly a conversation over the phone, not a speech, so what the agent has said may just answering a questions and was not aware of the applicant was on a speak phone.
Lets say the agent rang her client (she must as she was contracted to call to inform her client):
“X, did you know you are HIV-positive? "
"No, I don't it that matter?"
"Oh yes, you will fail the criterion And that you may be refused a visa."
"What will happened then?"
"You will be unlawful and be deported. for the worst"
Really, what can I do?
There is a waiving provision in place, and now have to submit a medical waiver to show why you should stay here?
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Again we don't know what has happened exactly as we didn't hear the actual conversation.· Owen Harris likes this comment.
Immigration blog
Oh my God!!! Indeed, being an Immigration Agents we must maintain the confidentiality and privacy of our clients. MUST TO DO.....