THE DANGER OF VISA ADVICE
All agents are different. Some provide visa advice, some use third parties and some do not provide any visa advice. AFTA has recently received a number of visa related complaints where passengers have been denied boarding due to not possessing the required visa.
Most agents rely on a clause in their terms and conditions – but can you rely on this?
What does the law say?
The Australian Consumer Law (ACL) states the following:
“If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.”
This means you must:
- use an acceptable level of skill or technical knowledge when providing the services; and
- take all necessary care to avoid loss or damage when providing the services.
What does the ATAS Code of Conduct say?
The ATAS Code of Conduct, in addition to the above ACL service guarantee, requires the following Service quality promise of ATAS Accredited Agents at s3.2(a)(iii).
“In providing our service, we will disclose all relevant information in a plain and easy-to-understand form”
Let’s look at two scenarios.
- Firstly, where a passenger has alleged they were verbally told they did not require a visa, however, in fact, they did require one. The Agent has then relied on a clause in their terms and conditions which states that it is the passenger’s responsibility to seek visa advice and requirements, and in some instances, relying on the fact that the complainant has signed and acknowledged these terms and conditions. This is occurring particularly with transit visas.
The problem with this scenario is that specific advice has been given which trumps the general advice of the terms and conditions. It is important to note that the consumer guarantees cannot be contracted out of, that is, the clause in the terms and conditions cannot be relied on if there is a failure of due care and skill. As such, it is likely that specific advice that results in a passenger being unable to board is a breach of the duty of due care and skill.
- Secondly, some complainants allege that no advice was provided at all. Again in these instances, the agent has relied on their terms and conditions. Complainant’s in this category are usually livid that it was not pointed out to them that they needed to seek visa advice. Yes, it was in their terms and conditions but we know that nobody reads the terms and conditions– so was it in a ‘plain and easy-to-understand form’? I recommend that each business consider the best practice guidelines below.
BEST PRACTICE – WHAT CAN YOU DO?
- If you wish to rely upon a clause in your terms and conditions that states it is the passenger’s responsibility to seek visa advice, then your staff policy should be to not provide visa advice in any circumstance and to ensure that this clause is highlighted to your valued customers. For example, you can highlight it on your itinerary, in the T &C’s and include it as a verbal or written statement to your customer – ensure it is part of each conversation.
- If you do wish to provide general visa advice and still wish to rely on a clause in your terms and condition, then all staff must ensure the messaging is correct. For example, each consultant should state, verbally and in writing, that “our advice is general only and not specific to your circumstance and it is your responsibility to seek appropriate visa advice for your circumstances”.
Clear communication is key and again ensure that the correct message is part of the conversation for example “generally visas aren’t required however we can’t provide specific visa advice to you, you will need to seek independent advice on appropriate visas you are required”.
- If you provide advice, make sure it is correct, as you are responsible under the consumer guarantee to provide that advice with an acceptable level of skill expected of a travel agent.
Whatever your position is, make sure that it is clearly communicated!
Nobody intends a bad experience for their customer. The flaw in these complaints usually comes down to poor communication between the parties.
With the numerous modes of communication available today such as text, email, phone and in person, it is more important than ever to ensure you have a robust process to ensure clear communication and that the terms and conditions are provided at or before the time of sale and your client has a clear understanding and acceptance of those terms.
Want to know more?
See my webinar Consumer Law Part 2 – Consumer Guarantees and more available on the AFTA website.
Contact Naomi Menon
Head of Compliance and Operations, AFTA via email at firstname.lastname@example.org.