What must a migration agent do with client documents?

Client documents sit in Division 4 of the Code of Conduct, and the obligations there do not scale with the size of the practice. Keep the documents securely. Give them back when asked in writing. And when the engagement ends, tell the client in writing what the return duty does. The provisions below are set out in the regulator's own words, because each one turns on a precise threshold: who may make the request, what counts as a document the client is entitled to, and how long the agent has.

1. Documents belonging or relating to a client or former client must be kept securely

“A migration agent must ensure that any documents belonging, or relating, to a client or former client of the agent that are in the possession of the agent, or a member of the agent’s business, are kept securely.”

Three things about the reach of section 53 are worth reading off the text.

• It covers a client and a former client, so the secure-keeping duty survives the end of the engagement.
• It covers documents that belong to the client and documents that merely relate to the client, so the agent's own working papers about the matter are inside the duty, not outside it.
• It covers documents in the possession of a member of the agent's business, not only documents the agent personally holds.

The verb is to ensure. That is an outcome standard rather than a statement of intention: the question after a loss is not whether the agent meant to keep the documents safe, but what the practice actually did with them.

2. A written request starts a 14-day return clock

“(1) A migration agent must, if requested in writing by: (a) a client; or (b) a former client, or a new registered migration agent representing a former client; return to the client or new agent all documents to which the client is entitled within 14 days of receiving the request.”

The trigger is a request in writing, and the 14 days run from the agent receiving it. Three classes of person can make that request:

1. the client;
2. a former client;
3. a new registered migration agent representing a former client.

The third is the one that catches agents out. A former client's new agent can write directly to the previous agent, and the previous agent must return the documents to that new agent. No further authorisation from the client is required by the provision, and the outgoing agent does not get to insist on dealing only with the client.

Note also what is to be returned: “all documents to which the client is entitled”. The agent does not select which documents to release, and release is not conditional on the client having paid, having signed a release, or having returned the agent's own materials.

3. A lien does not create a right to hold documents back

“(2) A migration agent is not entitled to claim a lien on documents to which a client or former client is entitled unless the agent is a restricted legal practitioner who is eligible.”

“A person cannot be registered as a migration agent if the person is an unrestricted legal practitioner or a restricted legal practitioner who is not eligible: see section 302A of the Act.”

The usual commercial lever — an unpaid invoice, a disputed disbursement, a client who walks away owing fees — is not an exception that section 54 recognises. The subsection removes the lien outright except for an agent who is a restricted legal practitioner who is eligible, and the accompanying note points to section 302A of the Act, which prevents the registration of an unrestricted legal practitioner, or a restricted legal practitioner who is not eligible, as a migration agent in the first place.

The practical consequence is that a fee dispute is not resolved by retaining a passport. Where an amount is genuinely owed, it is pursued as a debt or through the refund provisions of the agreement, not by holding the client's documents.

4. What the client is entitled to is defined, not negotiated

“(3) For the purposes of this section, and without limiting it, a client or former client of a migration agent is taken to be entitled to documents that are: (a) given to the agent, or a member of the agent’s business, by, or on behalf of, the client; or (b) paid for by, or on behalf of, the client.”

Two categories do the work. Documents the client gave to the agent or the agent's business fall in, whether or not the client owns the paper. Documents the client paid for also fall in, even if the client never physically handed them over and even if the agent arranged them. The note to the subsection gives the ordinary examples:

“Documents that are commonly given to migration agents by, or on behalf of, clients include passports, birth certificates, qualifications, photographs and business financial statements.”

The words “without limiting it” matter as much as the two categories. Subsection (3) is a floor: it settles the contested cases by deeming entitlement, and it does not shrink entitlement to whatever the list covers. An agent who reads the provision as an exhaustive definition of what must go back has read it backwards.

5. When the engagement ends, the termination notice must state the effect of section 54

The return duty is not left to be discovered by the client. Section 57 requires it to be spelled out in writing at termination.

“(1) Subject to subsection (2), a responsible migration agent in relation to a service agreement must ensure that each client covered by the agreement is given a written notice in accordance with subsection (3) before any termination of the agreement takes effect.”

“(2) Subsection (1) does not apply if: (a) because of exceptional circumstances, it is reasonable for the agreement to be terminated without a client having been given such a notice before the termination takes effect; or (b) the agreement is terminated unilaterally by a client. Instead, the responsible migration agent must ensure that each client covered by the agreement is given a written notice in accordance with subsection (3) no later than 14 days after the termination takes effect.”

So the written notice normally comes before the termination takes effect. Where exceptional circumstances make that unreasonable, or where the client terminates the agreement unilaterally, the notice is still owed, and it is owed no later than 14 days after the termination takes effect.

The content of the notice is prescribed, and the section 54 statement is one item on that list:

“(3) The notice must include the following: (a) the date from which the agreement is terminated; (b) the matters required by subsection (4) (if applicable); (c) the matters required by subsection (5) (if applicable); (d) a statement setting out the effect of section 54.”

“Section 54 requires a migration agent to return documents to which a client is entitled if requested to do so by the client or by a new registered migration agent representing the client.”

Two further content requirements hang off that list. Subsection (4) applies where an immigration matter is pending: the notice must cover the status of the matter and either the name and contact details of the agent to whom it will be allocated, or how the client may obtain further immigration assistance. Subsection (5) applies where the agent or their business holds client money under the agreement: the notice must set out each amount of client money received and each amount paid as mentioned in paragraph 50(1)(d). And subsection (6) adds a separate written notice to the Department or a review authority, due no later than 14 days after the termination takes effect, where a matter for which immigration assistance was provided is pending before them.

The section 54 statement is not a courtesy sentence. A termination notice that omits it does not contain what subsection (3) requires, and the duty to give the notice is imposed on the responsible migration agent whether the client terminated or the practice did.

What this requires in practice

• A register of original documents received and returned, with the return evidenced in the client file — section 56(2)(h) obliges the file to hold “evidence of the safe return of any original documents belonging to the client and given to the agent”.
• A logged date of receipt for every written request for documents, because the 14-day period runs from that date and not from the date the file is opened for review.
• A release rule that treats a written request from a former client's new registered migration agent exactly the same as one from the client.
• A rule against withholding documents for unpaid fees, understood by everyone in the practice who handles file release, not only by the principal.
• A termination notice template that carries the section 54 statement as a fixed item, and a check that the notice still goes out within 14 days when the client has terminated unilaterally or exceptional circumstances apply.

Practice takeaway. The document duties are concrete: keep everything belonging or relating to a client or former client secure; return everything the client is entitled to within 14 days of a written request, including a request from a former client's new agent; do not use a lien to hold documents back unless the agent is a restricted legal practitioner who is eligible; and state the effect of section 54 in every termination notice. A practice that cannot show the returned documents and the notice cannot evidence compliance.