Ministry of Justice

Sanctions / adviser permitted unlicensed agent to perform work required to be undertaken by the licensed adviser / four heads of complaint involving seven breaches of Code / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl2e, cl14, cl17a, cl17b, cl17c, cl18c / HELD / breaches of fundamental obligations to personally contract with and engage with visa applicant / adviser contributed to creating an environment for fraud to be perpetrated / moderate gravity of misconduct / first appearance before Tribunal / adviser expressed remorse albeit did not accept more serious breaches in explanation to Authority and made no submission to Tribunal prior to decision / offered no apology for more serious conduct, only certain failings / contrition not fulsome / breaches of core obligations warrant censure / adviser surrendered license / further training not required / refund or compensation not sought / adviser censured / ordered to pay $4,000 financial penalty

Professional practice / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2e, cl14, cl18a, cl22, cl26aiii and cl26b / HELD / adviser permitted unlicensed agent to perform work required to be undertaken by licensed adviser (‘rubber stamping’) / fundamental obligation to engage directly and personally / breach of cl2e / no services agreement / breach of cl18a / failed to provide evidence of licence / breach of cl14 / failed to provide client opportunity to review INZ application / breach of cl1 / declaration to INZ concerning advice “for” client not false or misleading / no breach of cl1 or cl31a / failed to personally confirm application lodged and provide timely updates / breach of cl26b / failed to provide complete record of communications / breach of cl26aiii / failed to issue invoice / breach of cl22 / retention of invoice not in issue / no breach of cl26aiv / alternative charge of negligence dismissed / complaint partially upheld / sanctions to follow

Professional practice / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2e, cl14, cl18a, cl22 and cl26b / HELD / adviser permitted unlicensed agent to perform work required to be undertaken by the licensed adviser (‘rubber stamping’) / fundamental obligation to engage directly and personally / breach of cl2e / no services agreement between adviser and complainant / breach of cl18a / failed to provide evidence of being licensed / breach of cl14 / failed to provide client opportunity to review INZ application / breach of cl1 / declaration to INZ concerning advice “for” client not false or misleading / no breach of cl1 or cl31a / failed to personally confirm application lodged and provide timely updates / breach of cl26b / failed to issue invoice / breach of cl22 / retention of invoice not in issue / no breach of cl26aiv / alternative charge of negligence dismissed / complaint partially upheld / sanctions to follow

Professional practice / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2e, cl4a, cl14, cl18a, cl22, cl26aiii and cl26b / HELD / adviser permitted unlicensed agent to perform work required to be undertaken by the licensed adviser (‘rubber stamping’) / fundamental obligation to engage directly and personally / breach of cl2e / no services agreement between adviser and complainant / breach of cl18a / failed to provide evidence of being licensed / breach of cl14 / failed to provide client opportunity to review INZ application / breach of cl1 / declaration to INZ concerning advice “for” client not false or misleading / no breach of cl1 or cl31a / failed to personally confirm application lodged and provide updates / breach of cl26b / failed to provide written communications to Authority / breach of cl26iii / failed to issue invoice / breach of cl22 / retention of invoice not in issue / no breach of cl26aiv / complaint partially upheld / sanctions to follow

Professional practice / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2a, cl2e, cl4a, cl8a, cl14, cl18b, cl26b and cl31a / HELD / adviser permitted unlicensed agent to perform work required to be undertaken by the licensed adviser (‘rubber stamping’) / fundamental obligation to engage directly and personally / breach of cl2e / provided false or misleading documentation to INZ concerning provision of advice to client, no evidence of wilful deception / breach of cl31a / forwarded client’s confidential information to unlicensed adviser / breach of cl4a / failed to provide evidence of being licensed and explain all significant matters / breaches of cl14 and cl18b / failed to provide client opportunity to review INZ application / breach of cl1 / failed to confirm application lodged and provide timely updates / breach of cl26b / failed to maintain relationship of confidence and trust / breach of cl2a / failure to facilitate interpreter-translator inapplicable a…

Sanctions / adviser permitted unlicensed agent to perform work required to be undertaken by the licensed adviser / no recorded written communications during engagement / eight breaches of Code / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl2e, cl14, cl18b, cl26aiii, cl26b, cl26c, cl31a / HELD / breach of fundamental obligation of advisers to personally engage with visa applicant / enabling agent to deal exclusively with complainant contributed to creating an environment for fraud to be perpetrated despite attendance to substantive immigration issues / partial, rather than complete, ‘rubber stamping’ / moderate gravity of misconduct / second appearance before Tribunal / adviser apologised for misconduct / unclear whether adviser understands obligation to engage directly with client and document communications / no evidence of dishonesty / adviser censured / no modification to ongoing suspension order required / directed to undertake training / $5,…

Sanctions / adviser failed to disclose in writing a conflict of interest to employee complainant and consequently did not obtain written informed consent to continued representation / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl5, cl6 / HELD / complainant aware of existence of conflict but may not have appreciated implications of conflict / adviser unable to provide independent advice to employee / gravity of wrongdoing properly assessed as lower end of moderate / adviser cooperated with Authority and Tribunal / adviser disputed breach at hearing but since expressed appreciation of wrongdoing / second appearance before Tribunal / previous complaint of limited relevance / adviser no longer practicing as immigration adviser, but consumer protection interests support need for general deterrence / claim for compensation failed to establish damages or losses arose due to complainant’s misconduct / adviser censured / ordered to pay $2,500 financial penalty

Sanctions / adviser permitted unlicensed agent to perform work required to be undertaken by the licensed adviser / eight to nine breaches of Code / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl2e, cl17a, cl17a, cl18b, cl22, cl23, cl26b and cl26c / HELD / breach of fundamental obligation of advisers to personally engage with visa applicant / enabling agent to deal exclusively with complainant contributed to creating an environment for fraud to be perpetrated despite attendance to substantive immigration issues / moderate gravity of misconduct / first appearance before Tribunal / co-operated throughout complaint process but consistently denied wrongdoing / since expressed remorse and implemented new procedures to prevent wrongdoing / further training not required / breach of core obligation warrants censure / lower end of moderate penalty appropriate / refund or compensation not sought / adviser censured / ordered to pay $3,000 financial penalty

Conflict of interest and professional practice / Code of Conduct 2014, cl18a, cl26aiii, cl26b, cl26d, cl26e, cl26f, cl29a, cl31a / HELD / Tribunal declined Registrar to cross-examine adviser in complainant’s absence / dishonesty and withholding information complaints cannot be sustained without complainant’s evidence, dismissed / disciplinary threshold / breach of cl26b but does not warrant disciplinary action / client knew of visa decision regardless / breach of cl18, cl26aiii, cl26d & cl26e but does not warrant disciplinary action / inadequate response to Registrar explained (not excused) by inadequate file and being overseas; inadequate file itself and lack of written agreement explained (not excused) by relationship with client (employee and friend) / breach of cl5 & cl6 by acting for employee without disclosure in writing and written consent / complaint partially upheld

Sanctions / adviser did not inform complainant of futility of residence visa application / no written acknowledgement from complainant of such advice / charged excessive fee / failed to maintain consistent communication with complainant / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl9, c24, c26 / HELD / first appearance before Tribunal / misconduct towards lower end of moderate level / no apology to complainant / adviser failed to accept that she had failed to inform complainant of lack of eligibility / nonetheless demonstrated level of acceptance of Tribunal’s findings / acknowledged valuable lesson to be learned / no training required / no need to denounce misconduct / adviser cautioned / ordered to pay $3,500 financial penalty / ordered to pay $6,810 refund / compensation of $29,000 refused as no evidence that claimed expenses causally related to adviser’s wrongdoing

Diligence and due care / professional practice / Code of Conduct 2014, cl1, cl22, cl25a, cl25b, cl25e, cl25f, cl26b / HELD / breach of cl1 / gave incorrect advice to complainant regarding impact of travel on 2021 Resident Visa application / filed application while complainant was overseas / failed to provide draft application to complainant for review before filing / failed to deal with INZ’s concern about complainant’s travel at time of application / breach of cl22, cl25a, cl25b, cl25e, cl25f / failed to provide invoice / adviser does not deny breaching obligations regarding client funds / no evidence he still holds complainant’s funds in client account / breach of cl26b / failed to reply to complainant’s requests for updates / failed to inform complainant of outcome of application / complaint upheld

Appeal against Registrar rejecting complaint / complaint adviser intentionally inserted incorrect occupation code in work visa application leading to decline / Registrar rejected complaint on basis it disclosed only a trivial or inconsequential matter / Code of Conduct 2014, cl1 / HELD / no evidence adviser intentionally or dishonestly inserted incorrect code / adviser believed in good faith incorrect code was a better match for complainant’s occupation / incorrect code did not lead to decline of visa / visa declined as INZ required report from employer, but employer refused / employer’s refusal not caused by adviser inserting incorrect code / employer was always unsupportive / adviser breached cl1 by failing to send draft application to complainant prior to filing, which would have allowed complainant to insert correct code / correction would have made no difference to outcome as employer not prepared to cooperate / breach does not warrant disciplinary action / appeal rejected

Negligence / diligence and due care / professional responsibilities and professional practice / Immigration Act 2009, s150 / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl9, cl17a, cl17b, cl26aiii / HELD / negligence and breach of cl1 and cl9 / adviser failed to recognise complainant ineligible for visa and application was futile / failed to advise complainant in writing of futility and obtain written consent to proceed / failed to request client file / no breach of cl17a and cl17b / service agreement refers to expired version of Code / adviser provided copy of current Code on same day after signing agreement / failure to provide copy of Code prior to signing only minor breach of cl17b / no evidence adviser did not explain professional responsibilities to complainant / no breach of cl26aiii / call with INZ helpdesk not a material communication / no evidence of meeting or phone discussion with complainant / complaint partially upheld