Ministry of Justice

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Sanctions / adviser failed to make prompt refund / failed to recognize funds were client’s property and cannot be withdrawn until invoiced / did not provide Authority with complete client file / failed to manage filing system / failed to confirm material discussions and when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

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