New Changes in ethical obligations of RMAs

As of 1 March this year, the new Migration (Migration Agents Code of Conduct) Regulations 2021 (“Code of Conduct”) came into effect, setting out the ethical obligations of RMAs with respect to their clients, their profession and other practitioners.

Maintenance of a high ethical standard across the migration law profession is essential to maintaining faith in the system, obtaining positive and consistent results for clients, and facilitating timely and efficient interactions with the Department of Home Affairs, the Administrative Appeals Tribunal, the courts, and any other stakeholders and beneficiaries of the migration law industry.

The 2014 ‘Kendall Review’ provided impetus for a revised and reworked code of conduct to update the previous iteration that it found to be overly long, clumsily structured, overly prescriptive, and with certain provisions onerous, confusing and inconsistent with consumer and practitioner expectations and modern business practices.

With the stated aim of creating a world class migration advice industry the new Code of Conduct is twice as long as the previous iteration and remains full of prescriptive, highly specific provisions. It is written in denser ‘legalese’ language, rather than ‘plain English’, it imposes a greater compliance and administrative burden on practitioners, and seems to remain, in some parts, inconsistent with consumer expectations.

That said, the Code of Conduct enshrines the key ethical responsibilities that RMAs have to their clients, the profession, and other practitioners. While we have both RMAs and lawyers (who are technically not subject to the Code of Conduct) at Work Visa Lawyers, such considerations are to always be kept front-of-mind. As a migration law firm one of our highest priorities is the maintenance of a very high standard of service and we gladly accept our accountability to our clients, the Department, and our fellow practitioners for the quality of the service we provide.

The explanatory statement of the new Code of Conduct sets out the purported aim to

“…clarify and revise a migration agent’s obligations including obligations to notify certain events… enable migration agents to more clearly understand their obligations and implement best practices followed in comparable industries, including obligations relating to advertising, managing clients’ accounts, managing conflicts of interest and working in a business with others who may not be RMA’s”

The Code of Conduct itself provides its purpose at section 5 as being to:

• Protect clients of migration agents; and
• Strengthen the integrity of the immigration advice industry and Australia’s immigration system.

The most useful way to get a sense of the ethical obligations set out in the Code of Conduct is by way of a brief look at the section titles of the six Divisions of Part 2 of the Code of Conduct.

Part 2—General duties

Division 1—General

13.......... General duty to act professionally, ethically etc

14.......... Duty to treat all persons with appropriate respect

15.......... Duty not to make false or misleading statements

16.......... Duty not to threaten to contravene this instrument

Division 2—Duties relating to Australia’s immigration system

17.......... Duty to comply with migration law

18.......... Duty not to undermine the migration law

19.......... Duty not to give futile immigration assistance

20.......... Duty to avoid making false or misleading statements etc. to government officials

21.......... Duty relating to correcting false or misleading statements etc

Division 3—Duty to maintain skills and knowledge

22.......... Duty to maintain skills and knowledge

Division 4—Duties relating to practice management

23.......... Duty to ensure that immigration assistance is given only by registered migration agents

24.......... Duties relating to work or services performed by persons other than registered migration agents

25.......... Duties relating to MARN

26.......... Duties not to make false or misleading statements in promoting business etc

27.......... Duty to hold professional indemnity insurance

Division 5—Duties relating to keeping Authority, clients, Department and review authority informed of matters relating to migration agent

28.......... Duty to notify Authority and clients of material changes in matters shown in Register

29.......... Duty to notify Authority of changes in circumstances relevant to agent’s continued registration

30.......... Duty to notify clients, Department and review authority if registration suspended

31.......... Duty to notify clients, Department and review authority if registration expected to lapse

Division 6—Duty to respond to requests from Authority for information or documents

32.......... Duty to respond to requests from Authority for information or documents

From this brief look at some of the core duties dealt with by the Code of Conduct we can get a sense of the key areas that RMAs must look to fulfil their ethical obligations.  RMA’s have obligations to their clients; to the migration laws of Australia, the Department; and to themselves and their profession.

The ethical obligations as set out in the new Code of Conduct supports the stated aim of creating a world class migration advice industry in which integrity is paramount to obtaining a fair, legally sound, and justifiable decision. These ethical standards create equity for all applicants and practitioners before the law and ensure a level playing field.

Requirements on practitioners to ensure that they maintain a high level of skills and knowledge of the ebb and flow of migration law, alongside those duties relating to practice management, compels RMA’s to only take on matters which they are skilled and knowledgeable enough to conduct well and can give clients comfort that any RMA that they engage to assist with a migration law matter will have the skill, knowledge, and expertise to provide assistance.

These expectations are clearly set out in section 13 of the Code of Conduct, which reads as follows:

13  General duty to act professionally, ethically etc.

             (1)  A migration agent must act:

                     (a)  professionally; and

                     (b)  competently; and

                     (c)  diligently; and

                     (d)  ethically, honestly and with integrity.

Note:          The other provisions of this instrument supplement, but do not limit, the general duties in this subsection.

             (2)  A migration agent must not engage in conduct (whether in the agent’s capacity as a migration agent or in any other capacity) that is reasonably likely to damage the reputation of migration agents or the immigration advice industry.

Author

Lochlan Reef MacNicol, Lawyer & Registered Migration Agent at Work Visa Lawyers