Ministry of Justice

Professional responsibilities and professional practice / Code of Conduct 2014, cl2e, cl3c, cl19a, cl26aiii, cl26c / HELD / breach of cl2e & cl3c / adviser failed to personally advise the complainant and obtain instructions, permitted unlicensed staff to give immigration advice to complainant who performed work beyond merely clerical work / adviser has obligation to provide explanation to Tribunal and, if not, adverse inference can be drawn / breach of cl19a / adviser failed to specify name and licence number in written service agreement / complaint upheld

Diligence and due care / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl17a, cl17b, cl17c, cl18a, cl26c / HELD / breaches of cl1 lacking diligence and due care / adviser overlooked aspect of PPI letter and provided erroneous advice / also failed to check a communication from INZ, which was a decline letter / was not able to provide adequate advice on options as decline letter was missed / failed to promptly forward on decline letter after discovering it had been received / breach of cl17a, cl17b, cl17c / failed to provide or explain Code of Conduct when entering service agreement or provide internal complaints procedure / breach of cl18a / did not amend or provide new service agreement covering additional s61 request / breach of cl26c / did not confirm material discussions in writing / would have been particularly helpful to set out consequences of declined visa / complaint upheld

Misleading behaviour / diligence and due care / professional practice requirements / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl18a, cl22, cl24b, cl24c, cl25a, cl25e, cl25f, cl26b / HELD / adviser misled complainant into believing an NZQA assessment had been filed, giving false reasons for delays / behaviour not explained by confusion or deterioration in health / also, admits failing to forward INZ emails, breach of cl26b / filed incomplete application & failed to advise that lodgement had failed, and failed to file EOI in a timely manner & provide timely updates, breaches of cl1 and cl26b / failed to provide written agreement covering new work, breach of cl18a / admits he did not issue invoices for fees & delayed refund due to financial difficulties before funds were payable, breach of cl22, cl24b, cl25a, cl25e, cl25f, cl24c / complaint upheld

Sanctions / adviser submitted EOIs without instructions and failed to communicate with INZ or the client for long periods / lacked diligence and due care / nine unprofessional acts breaching 10 Code provisions / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl2a, cl2e, cl15b, cl24c, cl26b, cl26e, cl26f, cl27b, cl28c / HELD / second appearance before Tribunal, with prior decision involving dishonest or misleading behaviour / ill-health an important mitigating factor / has not renewed licence / no submissions on sanctions from complainant or adviser despite extensions / adviser censured / ordered to pay $4,000 financial penalty, having regard to breaches, disciplinary record and health / no submissions as to a fair and reasonable refund for service fee and the Tribunal declines to speculate / $5,070 refund ordered for application fees not incurred / no compensation sought by complainant

Sanctions / adviser failed to provide invoices on two occasions when fees were payable / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl22 / adviser has been licensed for almost 14 years, first appearance before Tribunal / accepts Tribunal’s decision / wrongdoing towards lower end of the spectrum / adviser cautioned / neither censure nor monetary penalty justified

Diligence and due care / Immigration Advisers Licensing Act 2007, s442, s50, s51 / Code of Conduct 2014, cl1, cl19f, cl20a, cl20b / HELD / adviser failed to exercise diligence and due care by not sufficiently knowing forecasted revenue figure in business plan & incorrectly asserting he had a written confirmation of the wrong figure from INZ or that INZ had not referred to the correct figure previously / not professional or respectful in blaming complainant and INZ for his wrong advice / Tribunal does not accept adviser was dishonest, rather he lacked due care / adviser admitted failure to provide an estimate of time in written agreement when required by cl19f / fees charged not reasonable and time spent getting up to speed resolving the revenue discrepancy cannot be justified / complaint partially upheld    

Failed to provide invoices prior to receiving payment / Immigration Advisers Licensing Act 2007, s442, s50, s51 / Code of Conduct 2014, cl16a, cl22, cl26aii, cl26aiii / HELD / adviser did not provide invoices before or at the time of payment / insufficient to rely on contract and other communications allowing invoice to be constructed, without providing invoice itself / being away on travel does not excuse compliance with cl22 / further grounds of complaint dismissed / no evidence adviser deliberately or misleadingly withheld decline letter / no breach of cl16a as in-person meeting was not the initial consultation / videoconference or texts could amount to initial consultation / no breach of cl26aii or cl26aiii as these clauses do not require the creation of material that does not exist / complaint partially upheld

Diligence and due care / adviser failed to maintain client’s confidence and trust / ceased engaging, did not carry out instructions & did not appropriately withdraw from providing services / filed incomplete EOIs without instructions or written agreement & did not provide updates / did not provide client file to new adviser or IAA / failed to follow internal complaints procedure & provide fair and reasonable refund / Immigration Advisers Licensing Act 2007, s442, s50, s51 / Code of Conduct 2014, cl1, cl2a, cl2e, cl15b, cl24c, cl26b, cl26e, cl26f, cl27b, cl28c / HELD / psychologist’s report on adviser does not evidence complete inability to act, could have advised client to seek alternative assistance / ill-health not a defence in this case but will mitigate sanctions / required to obtain instructions and express written approval for each immigration application / should have refunded fair and reasonable amount when ceasing services / complaint upheld

Diligence and due care / adviser lacked due care and diligence in submitting a hopelessly flawed EOI and residence application / Immigration Advisers Licensing Act 2007, s442, s50, s51 / Code of Conduct 2014, cl1 / HELD / adviser concedes she breached cl1 / complainant could not satisfy English language criterion using uncompleted qualification & employment did not meet requirements as it was for less than 12 months / counsel’s characterisation as a one-off event at lower end of spectrum not accepted / two glaring errors, made twice / adviser is responsible for any mistakes by her staff and should have assessed the application itself / complaint upheld

Sanctions / failed to disclose a conflict of interest in writing and obtain written consent, failed to maintain a client file with copies of all written and oral communications, and failed to make file available to IAA / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl5, cl6, cl26aiii, cl26e / most serious breach was failure to disclose conflict in writing and obtain client’s written consent; mitigated by verbal disclosure of conflict / five previous complaints upheld / poor disciplinary history is a significant aggravating feature / adviser censured / public require protection / adviser prevented from reapplying for licence for maximum two years / ordered to pay $2,000 financial penalty / costs claimed for compensation not caused by upheld breaches, declined

Conflict of interest & failed to maintain a client file / Immigration Advisers Licensing Act 2007, s 442 / Code of Conduct 2014, cl3a, cl5, cl6, cl26aiii, cl26e / HELD / complaint adviser facilitated payment of employment premium not proven, conflicting evidence about purpose of payment / breach of cl5 & cl6 / adviser was also a director of the restaurant employing the complainant but did not disclose the conflict in writing or obtain written consent / breach of cl26aiii & cl26e / client file contained limited communications with complainant and none with their employer, and adviser did not provide the same to the IAA / complaint partially upheld

Sanctions / diligence and due care / adviser was late seeking an NZQA assessment / no service contract for work visa / no written confirmation given of termination of services or oral advice / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl18a, cl26c, cl28a / HELD / second appearance before Tribunal / adviser censured & directed to undertake further training due to deficient systems and understanding of professional obligations / ordered to pay $1,500 financial penalty / claim for refund of fees ($3,553) upheld, including the $445 NZQA fee which was paid late and without checking whether the client still wished to proceed / compensation claim not upheld as not particularised or evidenced 

Sanctions / diligence and due care / gave incorrect advice to client about whether they could enter New Zealand, delaying return and employment / honest mistake but not advice a reasonable, prudent and diligent practitioner would give / Immigration Advisers Licensing Act 2007, s3, s50, s51 / first appearance before Tribunal / isolated incident of wrong advice that had severe consequences / low level wrongdoing / adviser cautioned, rather than censured / ordered to pay $1,000 financial penalty / no justification for refund of successful residence application fees / compensation claim partially upheld for lost wages / Tribunal may award reasonable compensation; a contribution towards losses and expenses, not an indemnity / large compensation claims cannot avoid usual civil process / four weeks gross wages ($4,480) awarded for loss of income