Ministry of Justice

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

Diligence and due care / adviser failed to maintain client’s confidence and trust / ceased engaging, did not carry out instructions & did not appropriately withdraw from providing services / filed incomplete EOIs without instructions or written agreement & did not provide updates / did not provide client file to new adviser or IAA / failed to follow internal complaints procedure & provide fair and reasonable refund / Immigration Advisers Licensing Act 2007, s442, s50, s51 / Code of Conduct 2014, cl1, cl2a, cl2e, cl15b, cl24c, cl26b, cl26e, cl26f, cl27b, cl28c / HELD / psychologist’s report on adviser does not evidence complete inability to act, could have advised client to seek alternative assistance / ill-health not a defence in this case but will mitigate sanctions / required to obtain instructions and express written approval for each immigration application / should have refunded fair and reasonable amount when ceasing services / complaint upheld

Diligence and due care / adviser lacked due care and diligence in submitting a hopelessly flawed EOI and residence application / Immigration Advisers Licensing Act 2007, s442, s50, s51 / Code of Conduct 2014, cl1 / HELD / adviser concedes she breached cl1 / complainant could not satisfy English language criterion using uncompleted qualification & employment did not meet requirements as it was for less than 12 months / counsel’s characterisation as a one-off event at lower end of spectrum not accepted / two glaring errors, made twice / adviser is responsible for any mistakes by her staff and should have assessed the application itself / complaint upheld

Sanctions / failed to disclose a conflict of interest in writing and obtain written consent, failed to maintain a client file with copies of all written and oral communications, and failed to make file available to IAA / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl5, cl6, cl26aiii, cl26e / most serious breach was failure to disclose conflict in writing and obtain client’s written consent; mitigated by verbal disclosure of conflict / five previous complaints upheld / poor disciplinary history is a significant aggravating feature / adviser censured / public require protection / adviser prevented from reapplying for licence for maximum two years / ordered to pay $2,000 financial penalty / costs claimed for compensation not caused by upheld breaches, declined

Conflict of interest & failed to maintain a client file / Immigration Advisers Licensing Act 2007, s 442 / Code of Conduct 2014, cl3a, cl5, cl6, cl26aiii, cl26e / HELD / complaint adviser facilitated payment of employment premium not proven, conflicting evidence about purpose of payment / breach of cl5 & cl6 / adviser was also a director of the restaurant employing the complainant but did not disclose the conflict in writing or obtain written consent / breach of cl26aiii & cl26e / client file contained limited communications with complainant and none with their employer, and adviser did not provide the same to the IAA / complaint partially upheld

Sanctions / diligence and due care / adviser was late seeking an NZQA assessment / no service contract for work visa / no written confirmation given of termination of services or oral advice / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl18a, cl26c, cl28a / HELD / second appearance before Tribunal / adviser censured & directed to undertake further training due to deficient systems and understanding of professional obligations / ordered to pay $1,500 financial penalty / claim for refund of fees ($3,553) upheld, including the $445 NZQA fee which was paid late and without checking whether the client still wished to proceed / compensation claim not upheld as not particularised or evidenced 

Sanctions / diligence and due care / gave incorrect advice to client about whether they could enter New Zealand, delaying return and employment / honest mistake but not advice a reasonable, prudent and diligent practitioner would give / Immigration Advisers Licensing Act 2007, s3, s50, s51 / first appearance before Tribunal / isolated incident of wrong advice that had severe consequences / low level wrongdoing / adviser cautioned, rather than censured / ordered to pay $1,000 financial penalty / no justification for refund of successful residence application fees / compensation claim partially upheld for lost wages / Tribunal may award reasonable compensation; a contribution towards losses and expenses, not an indemnity / large compensation claims cannot avoid usual civil process / four weeks gross wages ($4,480) awarded for loss of income

Diligence and due care / adviser failed to reply to PPI letter or inform complainant their application was declined / Immigration Advisers Licensing Act 2007, s7, s442, s50, s51 / Code of Conduct 2014, cl1, cl26a / HELD / adviser did not engage with Tribunal / breaches of cl1 / lack of professionalism, diligence and due care in failing to substantively respond to PPI letter, compounded by not obtaining urgent instructions after being reminded by INZ / failure to inform complainant of application outcome, or reply to complainant’s emails regarding work visa and residence application, also constitute breaches of cl26a / dishonesty or misleading conduct allegation not upheld, as adviser did not know of decline decision before being told by complainant / complaint upheld

Appeal against Registrar rejecting complaint / complaint adviser used misleading and invalid agreements, did not provide or explain Code of Conduct and internal complaints procedure, asked to charge a higher fee, required payment in cash & in breach of contract / Registrar rejected complaint on basis it disclosed only a trivial or inconsequential matter / Immigration Advisers Licensing Act 2007, s7, s442, s451, s54 / Code of Conduct 2014, cl1, cl17, cl18b, cl19m, cl19n / Ekanayake v Registrar of Immigration Advisers [2015] NZIACDT 67 / Immigration New Zealand (Calder) v Cleland [2019] NZIACDT 25 / HELD / file evidences breaches of cl1, cl17, cl18b, cl19m & cl19n / as objective of tax residency work was to secure visa, tax work captured by “immigration advice” definition / failure to recognise this meant adviser entered into agreement without following Code obligations / other complaints not established / Registrar exercised discretion reasonably and lawfully / appeal rejected

Diligence and due care / adviser gave incorrect advice to client about whether they could enter New Zealand / originally gave correct advice, but in later correspondence, failed to correctly identify the relevant start date of client’s visa / assumed date of INZ letter was the same as visa start date / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1 / Immigration Act 2009, s62 / HELD / adviser admitted mistake / breach of cl 1 / faced with simple question and relevant instruction is uncomplicated / expected to correctly know facts and INZ criteria when giving advice on critical matter such as returning to NZ to undertake employment / adviser should have double-checked and followed up later if facing difficulties communicating / although common, not invariable that date of visa letter will align with start date / momentary lapse in concentration, but not an excusable human error / complaint upheld