Issue

The present issue in this scenario is to determine the potential breach of the code of conduct that Jonathan has committed in these 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 industry and is aimed at encouraging the confidence and interest of the consumer in a particular industry. ASIC requirement analysis that every code of conduct of a company should be inconsistent with the Corporations Act 2001 or any law of the Commonwealth. The code of conduct to be followed by migration agent is provided in the legislation to regulate their conduct. 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 1998. 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 client. 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 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 registration. 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 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 management 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 research methodology and action can be taken against him under Section 303(1) of the Migration Act.

Bibliography

Statutes

1. Corporations Act 2001
2. Migration Act 1958
3. Migration Agents Regulation 1998

Websites

1. (2018) Asic.gov.au <https://asic.gov.au/for-consumers/codes-of-conduct/>
2. 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].
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].
5.Migration Act 1958
6. (2018) Asic.gov.au <https://asic.gov.au/for-consumers/codes-of-conduct/>
7. Corporations Act 2001