Ministry of Justice

Diligence and due care / adviser failed to lodge visa application before category closed / Immigration Advisers Licensing Act 2007, s442, s50, s51 / Code of Conduct 2014, cl1, cl2e, cl18a, cl26b, cl26c / HELD / breach of cl1 / adviser accepts she missed deadline for lodging application by overlooking client’s instructions / breach of cl18a / did not amend or provide new service agreement covering Ministerial request / breach of cl26c / did not confirm advice in writing regarding steps to take once deadline was missed / adviser given benefit of the doubt she obtained instructions to make Ministerial request / incapacity / short periods in hospital & recuperating at home does not amount to incapacity / medical evidence shows health did not cause failure to meet deadline / complaint partially upheld 

Sanctions / adviser bundled recruitment and immigration services together, and failed to appreciate professional obligations would apply to recruitment services / written agreement did not set out full description of recruitment services or fees / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl19e, cl19f / HELD / first appearance before Tribunal / breaches were an honest mistake, and adviser acknowledges wrongdoing and has learned a lesson / it is important that written agreement covers entire services and specifies the fee / size of the fee ($18,805) is a material factor, but the client was advised of the fee before signing agreement / adviser censured / ordered to pay $500 financial penalty in light of acknowledgement and clean disciplinary record

Adviser failed to uphold numerous professional practice requirements / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl24c, cl25a, cl25e, cl26b, cl26c, cl26d, cl26e, cl28b / HELD / adviser’s health is not material for liability decision / failed to promptly provide a refund after client terminated services, breach of cl24c / admits refusing refund before funds were payable and failed to recognise they remain the client’s property, breach of cl25a & cl25e / admits failing to provide complete file to IAA within deadline, which was missing emails, breach of cl26e /did not have a well-managed filing system, breach of cl26d / failed to confirm in writing material discussions about visa eligibility, breach of cl26c / failed to inform in writing when EOI was lodged and provide written updates, breach of cl26b / failed to inform INZ she was no longer representing the complainant, breach of cl28b / complaint substantially upheld

Diligence and due care / Immigration Advisers Licensing Act 2007, s442, s50, s51 / Code of Conduct 2014, cl1, cl18a, cl26f / HELD / breaches of cl1 / adviser failed to request INZ file and missed adverse information / explanation about time-sensitive nature of application must be seen in context of delay in filing / also, failed to provide client with opportunity to review submissions / in urgent cases, may not be practical for client to review a draft, but given delays, submissions could have been reviewed / breach of cl18a / adviser accepts she did not provide a written agreement for a second s61 request / no answer that no fee was charged / no breach of cl26f / provided new adviser with file and provided further information on request / not required to also send file to subsequent advisers or provide file notes under cl26f / any failure to send full file not sufficiently serious to justify disciplinary response as new adviser did not seek further disclosure

Adviser failed to set out a full description of the services to be provided & the fees for those services in a written agreement / Immigration Advisers Licensing Act 2007, s7, s442, s50, s51 / Code of Conduct 2014, cl19e, cl19f, cl20a, cl22 / Immigration New Zealand (Calder) v Cleland [2019] NZIACDT 25 / HELD / adviser provided immigration advice and employment recruitment services to complainant in parallel without separation / in the absence of separation, the adviser’s professional obligations extend to the recruitment services / breach of cl19e and cl19f for failing to include description of recruitment services and associated fee information in written agreement / invoice provided did not contain a full description of recruitment services, but would not warrant disciplinary action / complainant’s narrative that recruitment services were not provided is rejected as false / complaint fee not fair and reasonable dismissed as no evidence provided of a reasonable fee

Registrar filed complaint / dishonest and misleading behaviour / adviser suggested complainant look for another job while waiting for his work visa to be approved / adviser proposed complainant obtain a variation or a new visa to support the new job / adviser failed to inform INZ that complainant no longer possessed a legitimate offer of employment from the employer / Immigration Advisers Licensing Act 2007, s442, s452, s453, / Code of Conduct 2014, cl1, cl31a / complainant expressly asked adviser not to withdraw visa application / complainant was hoping to solve the problem with training / resolution of employment dispute, through retraining, was a reasonable option for the adviser to have in mind / advice about seeking new job was intended as plan b if no resolution was reached / adviser unaware of complainant’s resort to an exploitation visa / no dishonesty or misleading behaviour / no lack of due diligence or care / complaint dismissed

Sanctions / adviser lacked due care and diligence in submitting a hopelessly flawed EOI and residence application / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1 / HELD / first appearance before Tribunal / adviser cautioned / moderate misconduct / ordered to pay $1,000 financial penalty given early acknowledgment of error and offer of full refund / adviser acknowledges full refund (including INZ application fees) of $6,450 appropriate / compensation claim for time spent organising application not upheld as not particularised or evidenced / compensation not awarded as a matter of course, and no evidence submitted establishing abnormal stress

Sanctions / adviser failed to confirm oral advice in writing regarding risks of application / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl26c / HELD / first appearance before Tribunal / adviser accepted breach of cl26c / evidence shows adviser raised risks orally / adviser cautioned, censure not warranted / compensation & refund for declined application not caused by absence of written confirmation of risk, declined

Unprofessional / failure to confirm in writing details of material discussions / Immigration Advisers Licensing Act 2007, s442, s451 / Code of Conduct 2014, cl1, cl9, cl26aiii & cl26c / adviser did not confirm oral advice regarding risks in writing / cl26c is not a trivial bureaucratic obligation, oral advice is not always fully appreciated and written advice allows reflection / other grounds of complaint not established / alleged failure to recognise and advise complainant of risks contradicted by evidence / no missing written communication or file notes identified by the Registrar / complaint upheld

Sanctions / adviser failed to provide an invoice, refund & confirm that the service contract was terminated / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl22, cl24c, cl28a / HELD / first appearance before Tribunal / lower end of misconduct / adviser cautioned / ordered to pay $500 financial penalty / partial refund of $1,500 ordered to reflect work undertaken / compensation of $500 ordered

Sanctions / diligence and due care / adviser failed to reply to PPI letter, provide timely updates, or inform complainant their application was declined / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl26b / HELD / isolated occasion of wrongdoing that had serious consequences, as complainant’s residence application was declined / adviser acknowledged mistake and apologised, improved business practices and hired additional help & fully refunded fees that were paid to prior business owner ($10,000) / adviser cautioned / ordered to pay $1,000 financial penalty / compensation of $2,000 awarded for distress, considering the full refund and the financial penalty ordered

Adviser failed to provide an invoice, refund & confirm that the service contract was terminated / Immigration Advisers Licensing Act 2007, s7, s442, s50, s51 / Code of Conduct 2014, cl1, cl22, cl24c, cl28a / HELD / adviser surrendered licence to become a lawyer / breach of cl22 / did not provide invoice for client’s payment / breach of cl24c / after surrender of licence, service contract was effectively terminated / obliged to refund deposit, less value of work done and invoiced / eventual offer to refund was 19 months after initial request / initial refusal on the basis contract prohibited refunds for change of mind contrary to cl24 / client entitled to “fair and reasonable” refund per cl24a & cl24c / breach of cl28a / did not confirm contract termination in writing / name suppression refused / presumption in favour of publication not displaced / complaint upheld

Sanctions / dishonest behaviour / numerous breaches of obligations over multiple applications / false representations about application status and completed work while doing nothing / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl9, cl18a, cl26a, cl29a / HELD / high end of misconduct / in addition to deceit, 16 breaches of obligations / fourth upheld complaint against adviser with a pattern of deceitful conduct / did not engage with disciplinary process in a meaningful way / grave consequences for complainant / adviser censured / prevented from reapplying for maximum period of 2 years / ordered to pay $8,000 financial penalty / compensation of $27,145 ordered ($20,955 for wasted polytechnic fees, $1,150 for first s61 request after wrongdoing uncovered, and $5,000 emotional distress)  / costs for legal fees on complaint not awardable / fees for further immigration applications did not arise from adviser’s wrongdoing, disallowed