Managing a Migrant Agent Business: Breach of Code of Conduct

This article discusses the potential breach of code of conduct committed by a registered migration agent and the relevant rules and regulations that apply. It also provides an application of the rules and regulations to a case study and concludes with the actions that can be taken against the agent.

Running head: MANAGING A MIGRANT AGENT BUSINESS
Managing a migrant agent business
Name of the Student
Name of the University
Author Note

MANAGING A MIGRANT AGENT BUSINESS
Issue
The present issue in this scenario is to determine the potential breach of code of
conduct that Jonathan have committed in this circumstances. It has to be determined based on
the circumstances of the case that in what way a person as a registered migration agent had
acted differently if he was acting for Eric in these circumstances.
Relevant Rules
Code of conduct implies to the set of rules that are enforceable against a company to
deliver and observe a definite standard of practice. It is purported to develop the standard of
an industry and is aimed at encouraging the confidence and interest of consumer in a
particular industry. ASIC requires that every code of conduct of a company should be in
consistent with the Corporations Act 2001 or any law of the Commonwealth1. The code of
conduct to be followed by migration agent is provided in the legislation to regulate their
conduct2. The provisions to regulate the conduct of the migration agent has been provided in
the Section 314 of the Migration Act 1958. The code of conduct is prescribed in Schedule 2
of Regulation 8 of the Migration Agents Regulations 19983. A registered migration agent in
Australia should comply with this code. The code covers ethical and professional conduct and
it provides the requirements for a proper business practice. The code of conduct for the
registered migration agent sets out a professional conduct which says that such an agent must
act in accordance with law and the legitimate and fair interest of the client4. He is required to
deal with the client, diligently, fairly and competently. Part 2 of this Act states that such an
agent must follow a professionalism that can be observed in his arrangement that he has made
1 (2018) Asic.gov.au <https://asic.gov.au/for-consumers/codes-of-conduct/>
2 Corporations Act 2001
3 Migration Agents Regulation 1998
4 Code of Conduct for registered migration agents. (2017). [ebook] Mara.gov.au. Available at:
https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf [Accessed 25 Sep. 2018].

MANAGING A MIGRANT AGENT BUSINESS
his client. Such an arrangement should avoid a financial loss to the client. A registered
migration agent should refrain from making a statement in support of the application under
the provisions of Migration Regulations or Migration Act, which he has a knowledge about to
be inaccurate or misleading. This part further provides that a registered migrant agent should
not imply an existence of relationship with an Authority or a Department. Section 12 of the
Migration Agents Regulation clearly provided that a migration agents should not
unnecessarily withhold the document of a client belonging to them. An agent does not have
an unreasonable right of lien over the document of a client. Section 303(1) of the Migration
Act has provided that if an agent has committed a breach of the code, the Migration Agents
Registration Authority is empowered to take an action against the agent, ranging from a
warning to the cancellation of his registration5. Part 5 of the code of conduct of registered
migration agent stated that a registered migration agent should not work in a way that
unreasonably increases the cost for the client.
Application
This particular case study can be decided by applying the relevant provisions of
Migration Act, Migration Agent Regulations and the code of conduct for registered migration
agents as stated above. In this present study, Jonathan has committed a breach of code
conduct by making a complying investment by the clients, which had made them invest AUD
5 million. He received a commission of 1.2% of the investments that the client made. He did
not disclosed the fact to the client that this term of investment was non-complying for the
clients. This activity by Jonathan goes against the standard business practice. Jonathan had
committed a breach of the code of conduct by not dealing with the client in a fair and
competent manner. Jonathan had breached the code of conduct by obtaining an unreasonable
financial gain from his client by using an unfair business practice. Additionally, it was the
5 Migration Act 1958

MANAGING A MIGRANT AGENT BUSINESS
obligation of Jonathan to not to imply to the client that he has a close relationship with the
merchant bank.
Additionally, Jonathan had no right to withhold the file of his client Eric, without due
reason. Jonathan had committed a breach of the code of conduct by claiming a right of lien
over the file of documents of Eric. He was not entitled to withhold the file of Eric, as it was
the sole fault of Jonathan that he caused a financial loss to the Eric in a deceptive way, by
stating that the investment was complying for the process. As per Part 10.4 of the code,
Jonathan has committed a breach to the code as he had no right of lien over the document of
Eric.
If I were a registered migration agent, I would not have caused any breach of the
code. It is required that a registered migration agent makes the client aware of the code. It is
the obligation of the registered migration agent that he should not cause any financial loss to
the client and should always work in a fair manner. Using an unfair business practice to
receive any deceptive cost form the client, is a clear breach of the code, which a migration
agent should refrain from. If I were acting for Eric in this circumstances, as a registered
migration agent, I would have disclosed the fact to Eric that the investment he was making
was non complying for this purpose. At the same time, the file should have been handed over
to the client on the request of the client as provided under Part 10 of the code of conduct for
the registered migration agent.
Conclusion
Therefore, from the aforesaid discussion, it can be concluded that, Jonathan had
committed a breach of code of conduct by working in an unfair method and an action can be
taken against him under Section 303(1) of the Migration Act.

MANAGING A MIGRANT AGENT BUSINESS
Bibliography
Statutes
Corporations Act 2001
Migration Act 1958
Migration Agents Regulation 1998
Websites
(2018) Asic.gov.au <https://asic.gov.au/for-consumers/codes-of-conduct/>
Code of Conduct for registered migration agents. (2017). [ebook] Mara.gov.au. Available at:
https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf [Accessed 25
Sep. 2018].