How long must a migration agent keep a client file?

The Code of Conduct sets one retention period for client files, and it is easier to state than to apply: 7 years, measured from the last action on the file. Section 56 of the Migration (Migration Agents Code of Conduct) Regulations 2021 contains both the duty to have the file and the duty to keep it, and the two are read together.

1. The file must be kept for 7 years after the last action on the file

“A migration agent who has a duty under subsection (1) in relation to a client file must take all reasonable steps to ensure that the client file is kept for a period of 7 years after the last action on the file for the relevant client.”

The trigger is the closing phrase: “the last action on the file for the relevant client”. It is not the lodgement date. It is not the date the service agreement was signed, and it is not the date the engagement ended. The provision names an event on the file, and the 7 years runs from whichever action turns out to be the final one.

That distinction is not academic. Section 57 requires written notices when a service agreement is terminated, and section 54 requires documents to be returned to a client or a new agent within 14 days of a written request. Either can happen well after the visa process itself has gone quiet. A practice that calculates retention from lodgement starts the clock too early in exactly the matters where a later action was performed.

2. The duty applies to a file that must already have been created and maintained

“A migration agent for a client must ensure that a client file is created and maintained for the client.”

The retention duty in subsection (5) applies to an agent who has the duty under subsection (1). What must survive for 7 years is the client file the section describes — one that already holds the client’s application or matter, the service agreements and any variations, written communications with the client and, where they relate to the client, with other people and organisations, the records of oral communications required by section 55, invoices and receipts, personal documents given by or on behalf of the client, and evidence of the safe return of original documents.

Retention and record-keeping stand together: a complete file destroyed too early fails subsection (5), and a file kept for 7 years without the documents subsection (2) requires does not meet the duty as a whole.

3. The standard is to take all reasonable steps

Subsection (5) does not require the impossible; it requires conduct. The agent’s duty is to “take all reasonable steps” to ensure the file is kept. The same phrase is used elsewhere in the instrument for duties that depend on a practice being in place rather than on a single act.

Two consequences follow. First, the standard is judged on the arrangements the agent had, so an intention to keep everything is not a retention system. Second, the medium is deliberately unconstrained:

“A client file may be kept in written or electronic form, or partly written and partly electronic form.”

What the provision is concerned with is that the file exists, remains intact, and can be produced.

4. Transferring the file does not end the retention duty

“Subsection (5) does not prohibit a migration agent from transferring possession of a client file to another migration agent.”

When possession moves, the retention clock does not stop or disappear:

“the receiving agent must take all reasonable steps to ensure that the client file is kept for a period of 7 years after the date of the last action on the file for the client”

“The receiving agent’s duties under subsection (7) are in addition to the original agent’s duties under section 35 (confidentiality) and subsection (5) of this section.”

The word is “in addition”. Transferring possession of the file is permitted, but it is not a way to discharge the original agent’s retention duty under subsection (5).

5. A file that is kept must be accessible

“A migration agent must give the Authority access to a client file that is in the possession of the agent, or a member of the agent’s business, if the Authority, in writing, requests access to the client file for the purposes of the Authority carrying out its functions under paragraphs 316(1)(a) to (d) of the Act.”

Retention is the precondition for that duty. A stored file that cannot be located, opened, or attributed to the right client when a written request arrives does not serve the purpose the section describes.

What this requires in practice

• A retention date on every file calculated from the last action on the file and recalculated when a later action is recorded — not fixed at lodgement, at signing, or at closing.
• A store that holds the file in written, electronic, or mixed form, so retention does not depend on one person’s mailbox or memory.
• A record of the retention arrangement itself: for which client, for which file, until when, and where it is held.
• A transfer protocol that sets the receiving agent’s clock from the last action on the file and preserves the original agent’s continuing duty.
• A retrieval path that works without the staff member who handled the matter, since a request from the Authority is made in writing and must be answered on its terms.

Practice takeaway. The retention question is not answered by a lodgement date or by the date an engagement ended. It is answered by the last action on the file — an event the practice controls, and should therefore record at the time it happens. The duty is to take all reasonable steps, and the practical form of that duty is a retention system that can identify the trigger date, count 7 years from it, and produce the file while the period runs.