File notes for migration agents and immigration lawyers

Where the rules sit now

A lot of what ranks for this topic still quotes the old Code of Conduct, which lived in Schedule 2 of the Migration Agents Regulations 1998 and was numbered in clauses. The current Code is a standalone instrument, the Migration (Migration Agents Code of Conduct) Regulations 2021, which commenced on 1 March 2022. The record keeping duties are now sections 55 and 56, in Division 5 of Part 3. If your precedents or staff training still cite old clause numbers, they are out of date.

Section 314(2) of the Migration Act 1958 requires registered agents to follow the Code. Under s 303, the Migration Agents Registration Authority (OMARA, within the Department of Home Affairs) can cancel or suspend registration, or caution an agent, if it is satisfied the agent has not complied.

What sections 55 and 56 actually say

Section 55: records of oral communications

Section 55 is short. A migration agent must make a contemporaneous written record of oral communications between the agent and a client in relation to immigration assistance, including: (a) oral instructions the client gives the agent; and (b) oral advice the agent gives the client.

"Contemporaneous" means at or close to the time of the conversation. "Oral communications" covers phone, video and face-to-face, with no minimum length. And "including" makes instructions and advice the floor, so anything else material said belongs in the record too.

Section 56: the client file

Section 56(1) requires a client file to be created and maintained for each client. Section 56(2) lists what it must include:

1. a copy of the client's application or other immigration matter;
2. copies of all service agreements and any variations;
3. copies of all written communications, including electronic ones, between the agent and the client, and between the agent and anyone else to the extent they relate to the client;
4. all records made under s 55 (your file notes of client conversations);
5. records of material oral communications between the agent and any person or organisation other than the client, to the extent they relate to the client;
6. copies of all invoices and receipts relating to the client;
7. copies of all personal documents the client, or someone on their behalf, gave the agent;
8. evidence of the safe return of any original documents belonging to the client.

Paragraph (e) is the one that catches people. A material call with a sponsor's HR manager, a case officer, a skills assessing authority or a family member about the client needs a written record, even though the client was not on the line.

The file can be paper, electronic or a mix (s 56(4)). One file can cover members of the same family unit, unless a client asks for a separate file (s 56(3)).

The 7-year rule and OMARA access

Section 56(5) requires the agent to take all reasonable steps to keep the client file for 7 years after the last action on the file, so the clock starts at the last action on the file. If the file moves to another agent, the receiving agent picks up the same 7-year duty and a confidentiality duty (s 56(7)). Section 56(9) requires the agent to give OMARA access to a client file when it asks in writing. When a client complains or OMARA investigates, the file is what gets read, and a file with no record of the advice given leaves the agent with nothing to point to.

Immigration lawyers: the 2021 change

The Migration Amendment (Regulation of Migration Agents) Act 2020 ended dual regulation from 22 March 2021. From that date, a lawyer holding an unrestricted practising certificate is not eligible to register as a migration agent, and lawyers who were registered were removed from the register. They can still give immigration assistance in connection with legal practice without being registered. Lawyers on a restricted practising certificate who were also registered agents were given a transition period to choose one path or the other.

So an immigration lawyer's file notes sit under the same professional obligations as any other legal matter: the conduct rules in your jurisdiction (for example the Australian Solicitors' Conduct Rules, including r 9 on confidentiality), costs disclosure under the Legal Profession Uniform Law or your state's equivalent, and your law society's guidance on file management and retention. We cover those in legal file note requirements in Australia and the ASCR obligations that shape a file note.

The Code is still a sensible benchmark for a migration practice inside a law firm. A same-day note of every client conversation and a clear record of advice on prospects is what a regulator, a court or an insurer will expect either way.

What the note should show at each stage

Several other duties in the Code turn on what you told the client and when. Here is what we would expect to see on file for a typical visa matter.

1. Initial consultation

Section 43 allows an agent to give advice at an initial consultation without a service agreement in force. The fee must be reasonable, the agent must tell the client their MARN, and the invoice and receipt rules in s 49 apply. The identity check in s 36(1) does not apply to advice at an initial consultation (s 36(2)). Section 38, which bars giving immigration assistance until the client has a copy of the consumer guide, has no initial consultation exception.

• Date, time, length, and whether it was in person, phone or video.
• Who attended, including any interpreter. Section 37 requires you to arrange an appropriately qualified interpreter if the client asks for one, so record the request and who interpreted.
• That you gave your MARN and the consumer guide, and the consultation fee charged.
• The client's goal in their own words: which visa outcome, by when, and why.
• Key facts relied on: current visa and expiry, any conditions (for example a no further stay condition), relationship or employment facts, prior refusals or cancellations, health or character issues raised.

2. Visa options advice

• Each option discussed, by subclass, with the main eligibility points for this client.
• Options ruled out and why. This is the part most often missing, and the part a client queries later.
• Timing risks, such as their current visa ending before a decision, and what you advised about it.
• Any third party the application depends on (sponsor, nominator, partner). Section 36(4) to (6) requires reasonable steps to verify that person's identity and that they have in fact sponsored or intend to.

3. Prospects of success

This is the highest-risk advice on the file. Section 19 says an agent must not give immigration assistance they reasonably believe would be futile, meaning there is little or no prospect of the result being achieved. The Code's own example is preparing a visa application with little or no prospect of grant. There is a narrow exception in s 19(2): the agent is satisfied it would not breach ss 13, 17, 18 and 33, an agent has advised the client it would be futile, and the client has given a written statement that they were told and still want to proceed.

• Your view on prospects in plain words (strong, reasonable, weak, futile) and the specific reasons.
• The evidence gaps that drive the risk, and what the client said they can produce.
• If prospects are weak, that you said so clearly and what the client decided.
• If futile, a note of the advice, and the client's signed s 19(2)(c) statement placed on the file before any further work.

4. Fees and the service agreement

Beyond the initial consultation, s 42 requires a written service agreement signed by the client and an agent, covering the work, authorising the agent to act, and stating the consumer guide was given. Section 46 requires fees as an hourly rate with a reasonable time estimate, or a fixed fee, and either must be fair and reasonable. Section 51 prohibits receiving money for the work before the service agreement is in force.

• Fee quoted, fixed or hourly, and the time estimate if hourly.
• That government charges (the visa application charge) and other disbursements are separate, and how they will be paid.
• Date the service agreement and consumer guide were sent and signed.
• Any later change to scope or estimate. Variations need written notice under s 44, and an hourly estimate can only be exceeded in the circumstances set out in s 46(4).

5. Lodgement instructions and progress

Section 39 requires the agent to advise the client in writing when an application is lodged, give them a copy, and promptly advise them of material developments. Section 20 prohibits giving a government official a document the agent knows is false or misleading, and requires reasonable steps (or disclosure) where the agent suspects it.

• The client's instruction to lodge, and on what date. Record that they reviewed the final application and confirmed the answers are true and complete.
• Any document you queried, what the client said, and what you did about it.
• Material calls with case officers, sponsors or assessing authorities (s 56(2)(e)).
• Every material update given to the client, including requests for further information and their deadlines.

Checklist: is this file note Code-ready?

• Written on the day of the conversation, with date, time and length.
• Everyone present named, with any interpreter identified.
• Instructions and advice recorded separately, including options ruled out.
• Prospects stated with reasons. Weak or futile prospects clearly flagged.
• Fees, disbursements and government charges discussed and recorded.
• Next steps with who does what and by when.
• Filed to the client file with the related emails, agreement and documents.
• Locked or version-tracked, so a later edit is visible.

Our file note audit readiness checker runs the same kind of review over a note you paste in.

Worked example note

Fictional client, fictional facts. This is how a clear note from an initial consultation might read. Visa rules change often, so treat the content as illustrative only.

Instructions and advice are separated, the option not pursued is on the record, the prospects view has its reason, and the timing risk is written down. If the client later says they were never told about the 12-month issue, the note answers it.

For more on the structure, see how to write a legal attendance note. Our file note template library has starting templates you can adapt.

Getting the note written the same day

The hard part of s 55 is "contemporaneous". Consultations run back to back and notes drift to the end of the week, by which time the options ruled out are usually forgotten.

If you run consultations on Teams or Zoom with transcription on, the transcript is most of the raw material. CallNote turns that transcript into a structured attendance note in your own format in about two minutes. You paste it or upload the .vtt or .txt export, review the draft, then lodge it. A published note is sealed with a checksum and any later change is an append-only amendment. We never record calls or join meetings, and data is hosted in Sydney. See file notes from Microsoft Teams transcripts for that workflow.

One caution on transcripts. Recording a private conversation without consent is regulated by state law. NSW, WA, SA, Tasmania and the ACT generally require consent from all parties, while Victoria, Queensland and the NT allow a party to the conversation to record it. Intercepting a call as it passes over the network is covered separately by the federal Telecommunications (Interception and Access) Act 1979. Tell clients the call is being transcribed and note that they agreed. Our guide to recording phone calls in Australia has the detail.

CallNote has no native integration with LEAP, Smokeball, Actionstep or migration practice software. The note goes into your file by PDF or copy and paste. More at CallNote for law firms.

Common questions