Ministry of Justice

Appeal against Registrar rejecting complaint / complaint advisers misled appellant about ability to work after entering New Zealand on guardian visa accompanying daughter on student visa / appellant said advisers failed to explain limitations, costs, risks and process of transitioning to a work visa and did not properly consider her financial need to work / Immigration Advisers Licensing Act 2007, s44, s45, s54 / HELD / evidence showed appellant proposed and agreed to student and guardian visa pathway knowing guardian visa did not permit employment / advisers repeatedly advised that employment would require either a variation of conditions for part-time work or a different visa pathway / appellant did not inform advisers that full-time employment was essential to support her family / isolated email suggesting possible part-time work did not amount to misleading advice when read in context of broader communications / no evidence of incompetence, misleading conduct or breach of Code disclosed by complaint / appeal rejected

Professional responsibilities and professional practice / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1 and cl31a / adviser signed a declaration form and an employment agreement in the client and the employer’s name without authority to do so / breach of cl1 and cl31a / adviser was not dishonest and had no intention to defraud, deceive or lie / signatures were not presented in a deceptive way and given in typed script / however, the documents were plainly misleading being presented to Immigration NZ as documents purportedly signed by the client and his employer / adviser careless or negligent but not dishonest / complaint upheld / sanctions to follow

Sanctions / adviser found liable for 12 breaches of professional standards / most serious is lying to client about when a visa application had been made / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl2a, cl17b, cl18a, cl18b, cl18c, cl19c, cl22, cl26aiii, cl26b, cl26d, cl26e / HELD / early admission of wrongdoing undermined by untruthful evidence to Authority and Tribunal, including fabricated file note / no apology to client / remorse and contrition limited / breaches of obligations concerning documents or information required to be given to clients important aspects of consumer protection / absence of a written agreement major departure from expected standards / first appearance before Tribunal / misconduct not for financial gain / censured / further training a condition of reapplication / ordered to pay $6,000 financial penalty.

Sanctions / adviser found liable for five breaches of professional standards / most serious breach erroneous approach to seeking overseas police certificate that probably led to decline of residence / high degree of carelessness / adviser services of no value to client / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl2e, cl17b, cl18b, cl26b, cl26c / second complaint upheld by the Tribunal (10 breaches of the Code) / no acknowledgement of harm or apology / censured / directed to complete further training / ordered to pay $3,000 financial penalty / ordered to refund $4,480 for professional and Immigration NZ fees / compensation of $5,000 for emotional damages

Professional responsibilities and professional practice / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2a, cl2e, cl8c, cl17b, cl17c, cl18a, cl18b, cl19c, cl22, cl26aiii, cl26b, cl26d, cl26e / breach of cl1 / falsely advised of date visa application lodged / dishonest communication / failed to provide draft visa application for review / breach of cl2a / breached relationship of trust and confidence / breach of cl8c, 19c / failed to disclose provisional status, supervisor’s name and requirement for supervision / breach of cl18a, 17b, 18b / failed to provide a written agreement or otherwise provide and explain summary of responsibilities and significant matters in a service agreement / breach of cl22 / failed to provide invoice / breach of cl26b / failed to notify date visa application lodged / breach of cl26aiii, cl26d, cl26e / failed to maintain copies of written communications and a well-managed filing system / sanctions to follow

Professional responsibilities and professional practice / Immigration Advisers Licensing Act 2007, ss 442 / Licensed Immigration Advisers Code of Conduct 2014, cl8a, cl8c, cl13c, cl14, cl15a, cl17a, cl17b, cl17c, cl18b, cl19c, cl25a, cl25b, cl25c, cl25e, cl25f, cl26e, cl28c / provisional licence holder provided immigration advice without approved supervision agreement and while licence suspended / breach of cl8a and cl13c / failed to provide evidence of licence, explain provisional licence requirements, or identify supervisor / breach of cl8c, cl14 and cl19c / failed to provide and explain summary of professional responsibilities / breach of cl17a and cl17b / failed to explain significant matters in service agreement / breach of cl18b / failed to provide complaints procedure / breach of cl15a and cl17c / client funds paid into personal account, not held in separate client account, not applied for intended purpose, and not refunded / breach of cl25a, cl25b, cl25c, cl25e and cl25f / failed to produce client file to Authority on request / breach of cl26e / failed to advise client of licence suspension and where assistance could be obtained / breach of cl28c / sanctions to follow

Sanctions / adviser failed to disclose and obtain written consent to a conflict of interest and charged excessive fee / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl5, cl6, cl19(l), cl20(a), cl17b, cl18b / adviser found to be in breach of seven professional standards / fee of $12,000 deemed grossly excessive / fee reflected a lack of appreciation of setting a reasonable fee in New Zealand market / conflict of interest did not provide undisclosed financial advantage to adviser and had no detriment to client / reputational damage from earlier decision relevant, but not significant factor in determining appropriate sanctions / fourth complaint upheld against adviser / adviser censured / $4,000 fine (having considered totality of sanctions in parallel proceedings) / $7,000 refund

Sanctions / failed to engage with Authority and Tribunal / continued to advise employer and an employee without required supervision under provisional license, amounting to deceptive misrepresentation of licence status / failed to provide client files to Authority upon request / failed to provide employer written services agreement / provided invoices to employer without particularising services rendered / failed to inform employer of suspension and offer refund for uncompleted services / failed to maintain relationship of confidence and trust with employer / Immigration Advisers Licensing Act 2007 s3, s17, s19, s48, s50, s51 / Code of Conduct 2014 cl1, cl2a, cl3a, cl8a, cl13a, cl13c, cl18a, cl22, cl24c, cl26e, cl29a / HELD / major departure from expected standards / aggravated by poor disciplinary history and contempt of disciplinary process / no mitigation advanced or acknowledgement of wrongdoing / current two-year prohibition / public should be further protected / adviser censured / prohibited from reapplying for licence for period of three years / $4,000 fine

Professional responsibilities and professional practice / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2e, cl18c, cl26a, cl26b, cl26d, cl31a / breach of cl1, cl2e, cl26b / adviser did not communicate directly with client (rubber stamping) / failed to verify client’s identity in communications / failed to send draft visa application to client prior to filing / failed to inform client application filed / breach of cl18c / failed to obtain client’s signature on service agreement / breach of cl26a, cl26d / failed to maintain a client file and retain communication (paper trail) / loss of phone not a justification / breach of cl31a / negligently misled Immigration NZ by falsely stating she had given advice to the client / complaint upheld / sanctions to follow

Appeal against Registrar rejecting complaint / dismissed on basis it disclosed only trivial or inconsequential matter / Immigration Advisers Licensing Act 2007, s34, s45, s54 / unclear if Registrar or investigator made decision dismissing complaint / however, investigation missed critical issues / no evidence of assessment of merits of business plans / visa application appeared to wholly lack merit / no refund provided and contractual refund criteria appear to be inconsistent with Code of Conduct / meets threshold for assessment by Tribunal / adviser will have opportunity to comment in Authority and Tribunal’s next steps / appeal allowed

Sanctions / failed to provide written agreements for two requests for Ministerial intervention / failed to advise applications futile and obtain written consent to continue / failed to work within scope of knowledge and experience / unnecessarily increased fees / failed to provide invoices for work / failed to provide Authority with complete copies of complainant’s immigration matters in her client file / Immigration Advisers Licensing Act 2007, s48, s50, s51 / Code of Conduct 2014 cl1, cl2a, cl8a, cl9, cl18a, cl20b, cl22, cl26ai, cl26e / HELD / futile applications in order to make money / exploitation of vulnerable migrant / successive futile applications affected complainant’s credibility to request discretionary visa / aggravated by extensive disciplinary history / adviser censured / $8,000 fine / $3,900 refund / prohibited from reapplying for licence for maximum period of two years

Professional responsibilities and professional practice / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2a, cl3a, cl8a, cl13a, cl13c, cl18a, cl22, cl24c, cl26e, cl29a / failure to engage with Authority and Tribunal / adviser engaged by employer and some of its employees to conduct job checks and assist with visa applications / continued to advise employer and an employee without required supervision under provisional license, amounting to deceptive misrepresentation of licence status / failed to provide client files to Authority upon request / failed to provide employer written services agreement / provided invoices to employer without particularising services rendered / failed to inform employer of suspension and offer refund for uncompleted services / failed to maintain relationship of confidence and trust with employer / complaint upheld / sanctions to follow

Sanctions / adviser failed to disclose and obtain written consent to a conflict of interest and charged excessive fee / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl4(a), cl5, cl6, cl17b, cl19l and cl20a / adviser found to be in breach of seven professional obligations / undisclosed conflict and excessive fee identified as most serious / fee of approximately $15,400 deemed grossly excessive / fee reflected a lack of appreciation of setting a reasonable fee in New Zealand market / conflict of interest did not provide undisclosed financial advantage to adviser and had no detriment to client / adviser’s second appearance / reputational damage from earlier decision and related proceedings not significant factor in context of adviser’s retirement before publication / adviser censured and fined $4,000 (having considered totality of sanctions in parallel proceeding)