Agent challenges OMARA over their interpretation of interest on clients' account

The following argument has been occurring between the OMARA and RMA, Carl Smart between 6 March 2014 and 14 March 2014. Mr Smart is now seeking legal advice through an accredited specialist in tax and finance law. In the mean time, I will FOI the qualifications for this OMARA Officer to ensure they are qualified to be giving advice of this kind. In my opinion, it is not enough for an officer at OMARA to say, 'I understand that'. An officer's understanding is not 'fact in law'.

OMARA EMAIL TO CARL SMART

Dear Mr Smart,

Following a review of your clients’ account statement I note that interest is being accrued.

As the clients’ account is to be used solely to hold client monies until your services are provided any interest earned from this account must be apportioned to your clients proportionally. In the alternative, you may open a non-interest bearing account hence alleviating the need to calculate and apportion interest to your clients on a monthly basis.

The latter option is considered best practise in the handling of client monies.

For your information please find attached a copy of the Authority’s Client Monies Toolkit which further addresses your financial obligations under the Code and identifies best practise in the handling of client monies.

https://www.mara.gov.au/media/77948/client_monies_toolkit_navigable_mar2013.pdf

Regards,

Sarah Alkan

Team Leader Registration & Professional Development

Office of the Migration Agents Registration Authority

Telephone: (02) 9078 3544

Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Website www.mara.gov.au

CARL SMART RESPONSE

Sarah,

I've reviewed the Code of Conduct and cannot find which part of the Code of Conduct I am in breach of by collecting interest from money held in a Clients’ Account. I also cannot find any reference in the Code of Conduct which specifically states interest collected in a Clients’ Account should be paid back to clients.

My understanding is that the toolkit referred to in your email below is a guide for Agents. It does not form an extension of the Code of Conduct.

Perhaps you can enlighten me?

Warm regards,

Carl Smart

Director

Mob. +61 (0) 402 871 721 (Australian number)

MARN 0100781

OMARA RESPONSE

For-Official-Use-Only

Dear Mr Smart,

I understand that the money that you collect in advance from clients is placed into your client account. As this money belongs to your clients until your immigration services are completed, any interest accrued on your client money, is the property of the client.

In addition, you have provided your clients a Service Agreement which indicates your schedule of fees. Therefore any financial benefit in addition to this Agreement, would be outside your schedule of fees.

Part 7 financial duties under clause 7.1 of the Code of Conduct defines the client account specifically as:

(b) money paid by clients to the agent for fees and disbursements (the clients’ account).

The Authority’s toolkit is designed to provide additional clarification and case examples for best practise.