Ministry of Justice

Rubber stamping / six heads of complaint relating to 12 clients / Immigration adviser’s business practice contrary to professional obligations and Immigration Advisers Licensing Act 2007 (the Act) / s7 and s5 of the Act / Code of Conduct 2014, cl1, cl2e, cl3c, cl18b, cl19e & cl19f and cl26b / Sparks v Immigration Advisers Complaints and Disciplinary Tribunal [2017] NZHC 376 / Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 / lack of professionalism and due care / failure to engage with clients / unlicensed staff providing immigration advice, not just clerical work / significant matters in agreement not discussed with clients / full description of services and fees not specified in agreement / failure to provide ongoing timely updates to clients on immigration applications / complaint upheld.

Sanctions decision / unprofessional & disrespectful communications with INZ / adviser made personal attacks against individual officers / adviser withheld information from client / adviser copied unconnected people in confidential client correspondence / Immigration Advisers Licensing Act 2007, s50, s51 / government agencies should not be unduly sensitive to criticism / communications crossed disciplinary threshold but not at upper end of unprofessional communications or malicious / withholding information isolated incident & did not cause decline of application / adviser refused to get clients’ consent to copy other people in correspondence / potential violations aggravated by contempt of code & disciplinary regime / adviser censured & ordered to pay $2,500 penalty.

Sanctions decision / rubber stamping / all communications made via Chinese migration company / staff work not clerical work / bulk of complainant’s instructions carried out by company / Immigration Advisers Licensing Act 2007, s50, s51 / second complaint upheld / adviser already prohibited from licence for two years / misconduct serious / adviser enabled unlicensed persons to provide immigration advice & failed to personally discharge immigration services / violation not wilful / adviser believed Chinese law did not permit him to engage with complainant / adviser wrongly believed staff were performing permitted clerical work / adviser retired & licence expired / adviser censured & prevented from reapplying for licence for two years.

Facilitating unlicensed person to give unlawful immigration advice / adviser ran seminars overseas providing information on immigration criteria in New Zealand / speaker at seminars not licensed / complaint made by another adviser that seminars contained incorrect information / Code of Conduct 2014, cl1, cl3c, cl29 / Immigration Advisers Licensing Act 2007, s442 / no evidence adviser’s strategy for clients not viable / motive of complainant irrelevant / immigration advice given by unlicensed person / irrelevant that speaker licensed in Germany to give advice about New Zealand immigration / adviser endorsed strategy & seminars traded on adviser being licensed in New Zealand / adviser facilitated speaker’s behaviour / complaint upheld.

Excessive fees / failure to record meetings and discussions / residence application / adviser charged $15,000 standard fee / adviser prepared application which required analysis of financial information / complainant signed application & paid second instalment of fees / complainant changed his mind & requested withdrawal of application & full refund of fees / complainant terminated agreement / adviser offered a partial refund / Code of Conduct 2014, cl20, cl24, cl26 / Immigration Advisers Licensing Act 2007, s442 / adviser should have recorded material discussions in writing / fee at higher end of scale but not unfair or unreasonable / urgency relevant factor in setting fee / adviser carried out substantial work at time agreement was terminated / work largely completed & only some documents outstanding / refund fair / adviser under no obligation to refund more than small part of fee / complaint upheld.

Rubber stamping / adviser director of company providing student placement services / complainant & son applied for visitor visa before student visa / unlicensed staff prepared application / application declined because it did not disclose son’s placement offer & INZ concerned it was not genuine / adviser not involved with application but finalised letter in response to INZ concerns / adviser not involved in management of company & believed it only provided placement services / Code of Conduct 2014, cl1, cl3c / Immigration Advisers Licensing Act 2007, s442 / any competent adviser would have realised unlicensed staff providing advice on receiving draft response letter / business structure not designed to circumvent legislation & no pattern of misconduct / violation at lower end of rubber stamping spectrum but still serious / adviser facilitated conduct of unlicensed staff in finalising letter to INZ / adviser not professional or diligent & did not exercise due care / complaint upheld.

Unprofessional & disrespectful communications with INZ / adviser’s communications criticised INZ staff for being incompetent & threatened to raise complaint with government agency / INZ staff felt belittled, stressed, incompetent, upset & bullied by communications / adviser copied communications to lawyer & another adviser / INZ’s character concerns not brought to client’s attention / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2e, cl4a / adviser’s criticisms unprofessional & crossed disciplinary threshold / tone & text went beyond robust advocacy & amounted to unjustified personal attacks / communications not at upper end of being unprofessional / criticisms & threats unjustified but not offensive or intimidating in unlawful sense / adviser honestly believed clients wronged / adviser withheld information & failed to obtain client’s informed instructions / adviser breached client confidentiality / complaint upheld.

Sanctions decision / incompetence / adviser failed to compile & file entrepreneur work & residence visa applications / complainants purchased motel but contract for sale lapsed / complainants provided business plan but plan never finalised / applications envisaged never made & complainants suffered significant loss / Immigration Advisers Licensing Act 2007, s50, s51 / censure & training justified by level of adviser’s incompetence / incompetence not sufficient to prevent re-licensing / no other instances of incompetence / adviser acknowledged wrongdoing & offered refund / adviser not primary or real cause of complainants’ losses / Parliament only intended modest awards of compensation / unreasonable for complainants to rely on adviser solely for investment advice / adviser censured, ordered to complete training, pay penalty of $3000 & $17,500 refund of fees, plus any interest earned on $17,500.

Sanctions decision / failure to perform services with due care, diligence and professionalism / client’s work visa declined so client in New Zealand unlawfully / application for exception to immigration instructions under s61 / adviser recommended making formal complaint to INZ & appealing deportation on humanitarian grounds but both declined / adviser then advised client to lodge a request for student visa / Tribunal found adviser’s approach misguided & devoid of merit / strategy costly & compromised client’s prospects of success / Immigration Advisers Licensing Act 2007, s50, s51 / breach not an isolated error of judgement / adviser lacked sufficient knowledge & skill / financial penalty not necessary in public interest / fees paid & cost of appeal wasted / no compensation recoverable as living expenses & costs of another adviser did not flow from unprofessional advice / adviser ordered to complete training & refund fees of $2,900.

Negligence / incapacity / failure to have written agreement & notify fees / filing futile applications / adviser subject to many complaints which Tribunal upheld in interim decision / adviser lacked capacity to practice & defend complaint due to medical condition / adviser’s licence cancelled / Immigration Advisers Licensing Act 2007, s 442 / Code of Conduct 2010, cl1.5, cl8b / Code of Conduct 2014, cl1, cl9, cl18a, cl19f, cl29b / interim decision upholding complaint made final.

Rubber stamping / allowing unlicensed people to manage visa application process / failure to provide written agreement / adviser entered arrangement with company that sourced jobs for Sri Lankan workers / adviser had no contact with client apart from initial skype interview / adviser used template contract of engagement / job offer withdrawn but company advised client to travel to New Zealand / whether adviser negligent or deliberately employed business model in breach of professional obligations / Code of Conduct 2014, cl2e, cl3c, cl18, cl19, cl26 / Immigration Advisers Licensing Act 2007, s442 / adviser did not take charge of engagement with client / inevitable unlicensed staff would step into void & provide immigration advice / adviser facilitated provision of immigration advice by unlicensed staff / contract unsuited to client & adviser’s needs / complaint upheld.

Rubber stamping / allowing unlicensed people to manage visa application process / adviser had no direct contact with client in accordance with Chinese law / all communications made via local migration company / complaint client asked to sign blank application form, information supplied without her knowledge and signature forged / whether the company’s unlicensed staff performed immigration services / whether Chinese law qualifies adviser’s professional obligations / Code of Conduct 2014, cl1, cl2, cl3c / Immigration Advisers Licensing Act 2007, s442 / Chinese law restrictions irrelevant & obligations not qualified by them / unlikely staff did not provide immigration advice / staff’s work did not amount to clerical work / bulk of complainant’s instructions carried out by company / adviser did not know falsity of documents / mere filing of false documents does not, of itself, amount to lack of due care or diligence / adviser had no knowledge of staff’s conduct / complaint upheld.

Sanctions decision / rubber stamping / allowing unlicensed people to manage visa application process / adviser had little or no contact with clients / adviser director of company recruiting Filipino workers / applications handled by unlicensed employee in Philippines / Code of Conduct 2014, cl1, cl2e, cl3c, cl18, cl26a / Immigration Advisers Licensing Act 2007, s50, s51 / adviser reliant on unlicensed people to deal with clients on immigration matters / offending involved multiple clients & adviser continued same model for some time / no systematic or deliberate breach of code / adviser overlooked requirement to personally discharge professional obligations / adviser failed to appreciate narrowness of clerical work exception / adviser aware of failings & remedied flawed business structure / adviser censured & ordered to pay $8,500 penalty & $3,000 investigation costs.