Jonathan Low is a registered migration agent. Most of his work involves assisting clients with applications for business migration under Class EB Business Skills (Provisional) subclass 188 Business Innovation and Investment (Provisional) visa. Most of his clients, fall under the Significant Investment Stream where they invest AUD5 million in a complying significant investment. Jonathan recommends his clients to invest the funds with a specific merchant bank and he receives a commission of 1.2% of the investment in the bank.
Recently, one of his clients, Eric Wu, from Hong Kong, for whom Jonathan had lodged a subclass 188 visa in the Significant Investment Stream, was advised by Home Affairs that the investment by the bank was a non-complying investment. Eric was extremely angry when he received this letter and rang Jonathan’s office. Jonathan was unavailable and his assistant, who is not a migration agent, tried to calm Eric down and said that everything should be okay as Jonathan has a close relationship with the merchant bank. This is the first time that Eric heard that Jonathan had a relationship with the merchant bank. Jonathan’s assistant said that she would contact Home Affairs as there clearly was a misunderstanding about the situation. Eric was belligerent and said that he had paid Jonathan approximately $50,000 for his professional fees and this situation was unacceptable. After this phone call, Jonathan rang Eric and told Eric that he wishes to continue to act for Eric despite the problem.
The next day Eric consulted another migration agent who requested Eric’s file from Jonathan. Jonathan responded that he had a right of lien over the file as there was an outstanding fee of $2,600 that had not been paid by Eric and he was not going to hand over the file. As soon as the outstanding payment is received he will hand over the file.
Jonathan is now concerned about the situation as he understands that Eric is a difficult and demanding client.
What potential breaches of the Code of Conduct would Jonathan have committed in these circumstances and what would you, as a registered migration agent, have done differently if you were acting for Eric in these circumstances?
Advising clients on visa qualifications
It is mandatory for a registered migration agent to adhere to the 2017 Code of conduct. This mainly guides them in the line of duty especially in relation to how to handle clients and any issue surrounding immigration and migration. In the case presented by Jonathan, the main issue that arises is whether he informed Erick about the qualifications that one needs to get a subclass 188 visa. Secondly, is it right for Jonathan to concentrate on getting a 1.2% commission from his clients as a priority before the visa application goes through? Thirdly, does Jackson behave in an ethical way by not informing Eric about the failed application? In as much as he has offered a service, is he entitled to ask for the outstanding fees from his client? These are some of the ethical considerations that will be expounded here.
To start with, a registered migration agent has a duty of advising his client about the probability of getting a visa. This is stipulated under Part 2 Section 2.2 of the Code of Conduct. This section states that the agent must provide advice through writing and within a reasonable time. Also, oral advice can be given and in doing so, chances of failure or success have to be communicated promptly. Jonathan has experience in making applications for clients applying for the Class EB Business Skills. He was therefore well informed on whether Eric was qualified to get the Visa or not. According to the Australian Government Department of Affairs, on is deemed to qualify for Business Innovation and Investment (Provisional) visa (subclass 188) if he or she is nominated by a government organization that is eligible, has an invitation to make a visa application, has an experience in operating and owning a business innovation stream, has a minimum of 1.5 million Australian Dollars for investment in the Investor Stream, has 5 million Australian Dollars to invest in the Significant Investor stream or has a minimum of 15 million Australian Dollars to invest in a premium investor stream. By meeting these standards and requirements, one is entitled to this Visa depending on the stream that one applies. It is clear that Jonathan did not advice Eric on these qualifications.
In respect to Part 2 Section 2.8 (c), an immigration agent has the duty of informing his client about the progress of the Visa application. This is alongside the outcome of the application, within a reasonable time. Jonathan Clearly failed to follow up on the application until when Eric received the disheartening news of the failed application from Home Affairs. The issue of having a non-complying investment should have been avoided in the first instance when considering the qualifications for such a visa.
Informing clients about visa application progress
A visa application process demands the use of a lot of fees for the entire process. Part 2 Section 2.20 of the Code of Conduct states that registered migration agents should allocate correct amounts for visa applications especially in terms of charges and fees. This is supported by the Migration Act. As such, the client should be furnished with a written advice detailing the number of fees and charges he needs to pay. A date for payments has to be also given in writing. It is prudent to adhere to ethics too when asking for payments. Migration agents are supposed to offer a service before misusing funds provided by the client. This leads to the determination of what should be done in case the application is not successful. In a situation where an agent notifies the client that he does not qualify for the visa, a contract should not be entered into.
Migration agents must always be available during work hours. This enables clients to reach them and make inquiries. Part 3 of the Code of Conduct sets out the type of obligations that migration agents have. Section 3.1 provides for the need for confidentiality so that a client’s business is not exposed. In section 3.5, changes to addresses, telephone numbers, or any communication details have to be presented to a client. In this case, Jonathan could not be reached by Eric, until when he called his office.
Upon failing to get a Visa, Eric is entitled to a refund especially on the 1.2% commission that may have been awarded to Jonathan by the bank as a commission. In the first instance, this raises a conflict of interest. It is not right to manipulate clients by advising them to deposit funds in certain banks, with the hidden agenda of receiving a commission from the money. Part 5 section 5.5 covers for the client who may have paid fees or given a reward so that he can obtain a service. In this regard, refunds should be made.
It is better for Eric to look for a different agent who can guide him on the entire prices of applying for a visa. Jonathan’s action demanding for $2,600 is uncalled for especially after failing to secure a visa for Eric. He can neither claim a lien because Eric can cancel the contract at any time and look for a new agent. Jonathan has a financial duty of ensuring that all actions and processes are completed successfully as provided for under Part 7 section 7.2, (a). It is also paramount for an agent to give a conditional refund in situations where applications are not successful or where a client may not be happy with the serviced he is receiving. Section 7.6 gives a client the opportunity to seek for redress if the contract provides for a conditional refund.
According to the Code of Conduct section 2.10, an office assistant, secretary or any other employee who is not a registered agent should not inform a client about other duties that an agent has. This leads to the realization of conflict of interest. Similarly, the assistant is not a registered agent and as such, he or she should not give advice or assistance to any client, (Section 8.1) in section 8.2, a registered agent must supervise his employees. In this situation, the assistant did not work under any form of supervision.
In a nutshell, registered migration agents should be willing to share all conditions to clients so that they can have an amicable work relation. It is better if clients also know some steps and procedure of the entire processes so that conflicts are prevented. As such, an agent has a duty according to section 11.1 to provide copies of the Code of Conduct t clients, display them on the wall, make them available at the waiting room or provide the Code via mail.
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