Ministry of Justice

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

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

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

Unprofessional / failure to confirm in writing details of material discussions / Immigration Advisers Licensing Act 2007, s442, s451 / Code of Conduct 2014, cl1, cl9, cl26aiii & cl26c / adviser did not confirm oral advice regarding risks in writing / cl26c is not a trivial bureaucratic obligation, oral advice is not always fully appreciated and written advice allows reflection / other grounds of complaint not established / alleged failure to recognise and advise complainant of risks contradicted by evidence / no missing written communication or file notes identified by the Registrar / complaint upheld

Sanctions / adviser failed to provide an invoice, refund & confirm that the service contract was terminated / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl22, cl24c, cl28a / HELD / first appearance before Tribunal / lower end of misconduct / adviser cautioned / ordered to pay $500 financial penalty / partial refund of $1,500 ordered to reflect work undertaken / compensation of $500 ordered

Sanctions / diligence and due care / adviser failed to reply to PPI letter, provide timely updates, or inform complainant their application was declined / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl26b / HELD / isolated occasion of wrongdoing that had serious consequences, as complainant’s residence application was declined / adviser acknowledged mistake and apologised, improved business practices and hired additional help & fully refunded fees that were paid to prior business owner ($10,000) / adviser cautioned / ordered to pay $1,000 financial penalty / compensation of $2,000 awarded for distress, considering the full refund and the financial penalty ordered

Adviser failed to provide an invoice, refund & confirm that the service contract was terminated / Immigration Advisers Licensing Act 2007, s7, s442, s50, s51 / Code of Conduct 2014, cl1, cl22, cl24c, cl28a / HELD / adviser surrendered licence to become a lawyer / breach of cl22 / did not provide invoice for client’s payment / breach of cl24c / after surrender of licence, service contract was effectively terminated / obliged to refund deposit, less value of work done and invoiced / eventual offer to refund was 19 months after initial request / initial refusal on the basis contract prohibited refunds for change of mind contrary to cl24 / client entitled to “fair and reasonable” refund per cl24a & cl24c / breach of cl28a / did not confirm contract termination in writing / name suppression refused / presumption in favour of publication not displaced / complaint upheld