Ministry of Justice

Appeal against Registrar rejecting complaint / complaint adviser intentionally inserted incorrect occupation code in work visa application leading to decline / Registrar rejected complaint on basis it disclosed only a trivial or inconsequential matter / Code of Conduct 2014, cl1 / HELD / no evidence adviser intentionally or dishonestly inserted incorrect code / adviser believed in good faith incorrect code was a better match for complainant’s occupation / incorrect code did not lead to decline of visa / visa declined as INZ required report from employer, but employer refused / employer’s refusal not caused by adviser inserting incorrect code / employer was always unsupportive / adviser breached cl1 by failing to send draft application to complainant prior to filing, which would have allowed complainant to insert correct code / correction would have made no difference to outcome as employer not prepared to cooperate / breach does not warrant disciplinary action / appeal rejected

Negligence / diligence and due care / professional responsibilities and professional practice / Immigration Act 2009, s150 / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl9, cl17a, cl17b, cl26aiii / HELD / negligence and breach of cl1 and cl9 / adviser failed to recognise complainant ineligible for visa and application was futile / failed to advise complainant in writing of futility and obtain written consent to proceed / failed to request client file / no breach of cl17a and cl17b / service agreement refers to expired version of Code / adviser provided copy of current Code on same day after signing agreement / failure to provide copy of Code prior to signing only minor breach of cl17b / no evidence adviser did not explain professional responsibilities to complainant / no breach of cl26aiii / call with INZ helpdesk not a material communication / no evidence of meeting or phone discussion with complainant / complaint partially upheld

Sanctions / adviser provided misleading advice / refused to respond to client’s concerns / failed to disclose conflict of interest and obtain written consent to continue representing client / charged excessive fee / failed to provide full description of services and fee / failed to send invoice describing service / failed to provide complaints procedure / Code of Conduct 2014, cl1, cl5, cl6, cl17c, cl19e, cl19f, cl20a, cl22 / HELD / first appearance before Tribunal / higher end of moderate level misconduct / failure to disclose conflict most serious / acknowledgement of wrongdoing undermined by criticising client for not raising concern / does not appreciate why conflicts must be disclosed / excessive fees noteworthy / can only charge lower reasonable fee disclosed in service contract / credit for accepting decision and apology / no remorse to client / adviser censured / directed to undertake training / ordered to pay $5,000 financial penalty / ordered to refund fees of $19,061 within one month of decision

Sanctions / adviser failed to personally obtain instructions from client / failed to provide verbal explanation of professional responsibilities and significant matters in client agreement / Code of Conduct 2014, cl2e, cl17b, cl18b / HELD / second appearance before Tribunal / personal engagement with client is critical to ensure client is properly advised, understands the advice, and that instructions from client are informed / gravity of offending at lower level of medium / adviser accepts Tribunal’s decision and has learned a lesson for future work / multiple breaches of the Code in two complaints show lack of understanding of client engagement, particularly early in the relationship / adviser would benefit from further training / adviser censured / directed to undertake training / ordered to pay $1,500 financial penalty

Diligence and due care / conflict of interest / professional responsibilities and professional practice / Immigration Advisers Licensing Act 2007, s442d / Code of Conduct 2014, cl1, cl2c, cl5, cl6, cl15, cl17c, cl18b, cl19e, cl19f, cl20a, cl22, cl29e, cl29f / HELD / no breach of s442d, cl29e, cl29f / no intent to deceive / breach of cl1 / failed to inform client switching jobs required INZ assessment / refused to respond to complaint about fee / no breach of cl2c / no evidence client required translation / breach of cl5, cl6 / failed to disclose relationship with employer that adviser promoted to client / breach of cl17c / no complaints procedure / no breach of cl18b / explanation to client given / breach of cl20a / fee included services beyond immigration services / additional services should be under separate company, agreement and fee / fee grossly excessive / breach of cl19e, cl19f, cl22 / failed to provide full description of services, fee and invoices / complaint partially upheld

Diligence and due care / professional practice / Code of Conduct 2014, cl1, cl22, cl26a, cl26b, cl26d, cl26e, cl28b, cl28c / HELD / breach of cl1 / adviser withheld from complainant information about how to check status of visa application herself despite two requests / breach of cl22 / failed to issue invoice to complainant upon payment of adviser’s fees / breach of cl26a, cl26d, cl26e / failed to send complainant’s file to Authority despite multiple requests, and has not shown he had a file or a well-managed filing system / breach of cl26b / failed to make timely updates as to status of visa application and failed to inform complainant of request from INZ for more evidence / breach of cl28b / failed to inform INZ that adviser’s licence expired and could no longer represent complainant and her partner / breach of cl28c / failed to advise complainant and her partner about expired licence and where they could get assistance / complaint upheld

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