Ministry of Justice

Appeal against Registrar rejecting complaint / adviser lacked diligence in assessing client’s fabricated qualifications when introducing client to complainant for employment / acted despite conflict of interest / Registrar rejected complaint on basis it did not disclose any statutory grounds of complaint / Immigration Advisers Licensing Act 2007, s7 / HELD / complainant employer not a client of adviser for purposes of Act / client’s evidence does not support complainant / evidence concerning client and adviser suspicious, but does not link wrongdoing of client to adviser / INZ verified qualifications as genuine / client and her agent represented qualifications as genuine / full investigation unlikely to uncover evidence of wrongdoing by adviser due to passage of time and client and agent residing overseas and being unlikely to co-operate / conflict of interest complaints fail as no evidence that client did not know of additional payments to adviser or agent / appeal rejected

Sanctions / adviser failed to provide client an opportunity to review s61 requests before lodgement, failed to indicate whether second s61 request was likely to be futile and advise of risks, and failed to have second written agreement for second s61 request / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl9a, cl9b, cl18a / HELD / first appearance before Tribunal / gravity of offending at lower end of moderate / adviser accepted all wrongdoing early / has made changes to her practice, so a repeat of conduct is unlikely / adviser has been mature and professional in disciplinary process / fee paid for second s61 request wasted / professional obligations breached are important safeguards to clients / breach had no implications for client as adviser’s mistakes did not cause client’s unlawful status or financial loss / compensation therefore not appropriate / adviser censured / ordered to pay $1,500 financial penalty / ordered to refund fees of $920

Diligence and due care / professional responsibilities and professional practice / Code of Conduct 2014, cl1, cl9a, cl9b, cl17b, cl18a / HELD / breach of cl1 / admits failing to provide client with opportunity to review s61 requests before lodgement / client entitled to check accuracy and sufficiency of completed applications prior to lodgement / breach of cl9 / admits failing to indicate whether second s61 request was likely to be futile and notify client of such risks / second application traversing the same grounds as those recently dismissed is futile / no breach of cl17b / best way to facilitate client access to Code is to provide hard or electronic copy / however, cl17b only requires advice on to access Code / adviser’s offer to provide copy of Code upon request satisfies cl17b / breach of cl18a / admits failing to have second written agreement in place for lodging second s61 request / second request was additional service requiring another agreement / complaint upheld

Sanctions / adviser failed to personally advise and obtain instructions from complainant, permitted unlicensed staff to exclusively engage with complainant and give immigration advice / Immigration Advisers Licensing Act, s3, s50, s51 / Code of Conduct, cl2e, cl3c, cl26c / HELD / first appearance before Tribunal / gravity of offending is moderate / duty to fully engage with clients is fundamental, but conduct not amongst worst type of rubber stamping as adviser did much of the substantive work / admission of wrong not fulsome as adviser perpetuated untruthful narrative of engaging with complainant / immigration pathway complainant was advised to follow was futile / no compensation for stress as complainant’s uncertain immigration status not caused by adviser’s failures / tour and tuition fees too remote to be awarded / adviser censured / directed to undertake training / ordered to pay $2,500 financial penalty / compensation of $7,716 awarded for wasted direct application expenses

Professional responsibilities and professional practice / conflict of interest / Immigration Advisers Licensing Act 2007, s7, s442, s45, s49, s50, s51 / Code of Conduct 2014, cl2e, cl3c, cl5, cl6, cl26aiii, cl26c / HELD / breach of cl2e & cl3c / adviser failed to personally advise and obtain instructions from complainant, permitted unlicensed staff to exclusively engage with complainant and give immigration advice / adviser obliged to ensure unlicensed staff do not perform immigration advice work, warning not to undertake such work insufficient / adviser likely received via staff complainant’s oral consent to obtain INZ file / breach of cl26c / did not confirm in writing complainant’s discussion of material immigration matters with staff, adviser should have sent letter or text even if complainant had no email address / no breach of cl5 & cl6 / no evidence adviser received commission for referring complainant to English school / complaint partially upheld

Diligence and due care / professional practice requirements / Immigration Advisers Licensing Act 2007, s442, s45, s49, s50, s51 / Code of Conduct 2014, cl1, cl24b, cl24c, cl27b / HELD / breach of cl 1 / adviser failed to fulfil client’s requests for return of documents and fee after terminating instructions / adviser either ignored requests or made false promises to communicate or fulfil requests for seven months / adviser continued to falsely advise Authority that he would refund fee / adviser’s conduct in deliberately misleading client over extended period is disgraceful / full fee should have been refunded as adviser did not file application or undertake any substantive work / breach of cl 24b & cl24c / adviser failed to make refund / breach of cl 27b / adviser failed to return client’s documents despite multiple requests to do so / complaint upheld

Sanctions / adviser failed to make prompt refund / failed to recognize funds were client’s property and cannot be withdrawn until invoiced / did not provide Authority with complete client file / failed to manage filing system / failed to confirm material discussions and when expression was filed, and did not provide timely updates / failed to inform INZ she was no longer representing client / Immigration Advisers Licensing Act 2007 / s3, s50, s50A, s51 / Code of Conduct 2014, cl24c, cl25a, cl25e, cl26b, cl26c, cl26d, cl26e, cl28b / HELD / fourth appearance before Tribunal / medical evidence gives context but not justification / cumulative breaches over four cases do not warrant suspension, given acceptance of wrongdoing, enrolment in training, financial state and risk to public, but further complaints will require consideration of suspension / adviser censured / ordered to pay $3,500 financial penalty, given moderate gravity of breaches, disciplinary history and financial circumstances

Sanctions / adviser failed to request client file from INZ / failed to provide client with opportunity to review s61 requests prior to lodgment / failed to provide written agreement for second s61 request / Immigration Advisers Licensing Act 2007, s3, s50, s50A, s51 / Code of Conduct 2014, cl1, cl18a / HELD / third appearance before Tribunal / fourth complaint recently upheld / adviser’s failings not an isolated incident but misconduct occurred before Tribunal’s prior decisions / adviser’s disciplinary history shows a pattern of misconduct that continued over a prolonged period / protecting and properly informing a client involves ensuring there is a written contract and the client is aware of what is happening / medical evidence gives context but not a justification for wrongdoing during relevant period / adviser’s misconduct is not of itself serious / acknowledges professional failings / adviser censured / ordered to pay $2,000 financial penalty / ordered to refund fees of $2,200.

Sanctions / adviser failed to ensure he had sufficient knowledge of complainant’s business plan sales forecast, failed to provide estimate of time in written agreement, failed to ensure fees charged were fair and reasonable, failed to work in a manner that did not unnecessarily increase fees, blamed complainant and INZ for own wrong advice, falsely claimed INZ gave wrong advice / Immigration Advisers Licensing Act 2007, s3, s50, s50A, s51 / Code of Conduct 2014, cl1, cl19f, cl20a, cl20b / HELD / first appearance before Tribunal / adviser committed significant blunder as regards the business plan sales forecast / adviser’s mistake had significant personal effect on complainant and family, but important to consider that second residence application was successful / adviser accepts wrongdoing, but no apology / adviser censured / ordered to pay $2,000 financial penalty having regard to multiple breaches, acknowledgement, no apology and significant effect on complainant and family

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