The Client Who Wants to 'Improve' His Employment Letter
Sofia is an RM acting for Dev, who is applying for a Subclass 482 (Temporary Skill Shortage) visa nominated by his employer, a small construction firm. Dev's nominated occupation requires two years of relevant full-time experience. Dev has 22 months of experience at the firm plus casual work at another site. Dev's employer provides an employment letter stating 'two years full-time' and asks Sofia to 'keep it simple' and not mention the casual period. Dev separately sends Sofia a revised version of the letter with the dates changed to show 24 months at the firm, saying his manager 'is fine with it' and that the original was a 'typo'. The firm's ABN registration is current, but Sofia notices the nomination application lists a different trading name. Dev has paid Sofia's fees personally, and the employer has offered to pay a 'success fee' if the visa is granted.
1. How should Sofia handle the altered employment letter?
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Sofia must not lodge or rely on a document she believes has been altered to misrepresent the facts.
Reasoning:
- Changing dates to manufacture 24 months of full-time experience is a false statement. Lodging it would be misleading conduct and could expose Dev and Sofia to serious consequences, including refusal, cancellation and referral.
- Sofia should decline to use the revised letter, explain why in writing, and advise Dev of the lawful alternatives: provide accurate evidence of the actual employment (including casual work, with payslips, tax records and references), and let the decision-maker assess whether the requirement is met.
- She should seek independent verification from the employer directly (not through Dev) and document the discrepancy.
- If Dev insists on the altered document, Sofia should decline to act further and follow termination and file-handling obligations.
2. What are the issues with the fee arrangement and the employer's 'success fee'?
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The arrangement raises several professional conduct concerns.
- A success fee contingent on a visa outcome is problematic: it creates a financial incentive tied to a migration outcome and can compromise independence and the duty to act honestly. Sofia should not accept it.
- Fees should be set out transparently in a written engagement agreement, and the client should understand who is paying and for what. Where the employer pays, Sofia must manage any conflict between the employer's interests and Dev's interests, and confirm who her client is.
- Sofia should clarify the retainer, the scope of work, and disbursements, and record that the success fee was declined and why.
- She should also check the nomination details, since the trading name discrepancy may indicate an error or a more serious issue with the sponsoring entity.
3. The nomination lists a different trading name from the ABN registration. What should Sofia do?
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Sofia should investigate before lodgement rather than assume it is a clerical error.
- She should obtain the ASIC/ABN records and confirm the legal entity, trading name and the entity that employs Dev and makes the nomination.
- A mismatch can signal that the nominator is not the correct entity, which goes to the validity of the nomination and the genuineness of the position.
- She should ask the employer for an explanation and supporting documents (business registration, organisational chart, payroll records).
- If the discrepancy cannot be resolved, Sofia should advise Dev of the risk and consider whether the application can proceed. She must not lodge on the assumption the Department will not notice.