Ministry of Justice

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

Sanctions / adviser provided misleading advice / refused to respond to client’s concerns / failed to disclose conflict of interest and obtain written consent to continue representing client / charged excessive fee / failed to provide full description of services and fee / failed to send invoice describing service / failed to provide complaints procedure / Code of Conduct 2014, cl1, cl5, cl6, cl17c, cl19e, cl19f, cl20a, cl22 / HELD / first appearance before Tribunal / higher end of moderate level misconduct / failure to disclose conflict most serious / acknowledgement of wrongdoing undermined by criticising client for not raising concern / does not appreciate why conflicts must be disclosed / excessive fees noteworthy / can only charge lower reasonable fee disclosed in service contract / credit for accepting decision and apology / no remorse to client / adviser censured / directed to undertake training / ordered to pay $5,000 financial penalty / ordered to refund fees of $19,061 within …

Sanctions / adviser failed to personally obtain instructions from client / failed to provide verbal explanation of professional responsibilities and significant matters in client agreement / Code of Conduct 2014, cl2e, cl17b, cl18b / HELD / second appearance before Tribunal / personal engagement with client is critical to ensure client is properly advised, understands the advice, and that instructions from client are informed / gravity of offending at lower level of medium / adviser accepts Tribunal’s decision and has learned a lesson for future work / multiple breaches of the Code in two complaints show lack of understanding of client engagement, particularly early in the relationship / adviser would benefit from further training / adviser censured / directed to undertake training / ordered to pay $1,500 financial penalty

Diligence and due care / conflict of interest / professional responsibilities and professional practice / Immigration Advisers Licensing Act 2007, s442d / Code of Conduct 2014, cl1, cl2c, cl5, cl6, cl15, cl17c, cl18b, cl19e, cl19f, cl20a, cl22, cl29e, cl29f / HELD / no breach of s442d, cl29e, cl29f / no intent to deceive / breach of cl1 / failed to inform client switching jobs required INZ assessment / refused to respond to complaint about fee / no breach of cl2c / no evidence client required translation / breach of cl5, cl6 / failed to disclose relationship with employer that adviser promoted to client / breach of cl17c / no complaints procedure / no breach of cl18b / explanation to client given / breach of cl20a / fee included services beyond immigration services / additional services should be under separate company, agreement and fee / fee grossly excessive / breach of cl19e, cl19f, cl22 / failed to provide full description of services, fee and invoices / complaint partially upheld

Diligence and due care / professional practice / Code of Conduct 2014, cl1, cl22, cl26a, cl26b, cl26d, cl26e, cl28b, cl28c / HELD / breach of cl1 / adviser withheld from complainant information about how to check status of visa application herself despite two requests / breach of cl22 / failed to issue invoice to complainant upon payment of adviser’s fees / breach of cl26a, cl26d, cl26e / failed to send complainant’s file to Authority despite multiple requests, and has not shown he had a file or a well-managed filing system / breach of cl26b / failed to make timely updates as to status of visa application and failed to inform complainant of request from INZ for more evidence / breach of cl28b / failed to inform INZ that adviser’s licence expired and could no longer represent complainant and her partner / breach of cl28c / failed to advise complainant and her partner about expired licence and where they could get assistance / complaint upheld

Appeal against Registrar rejecting complaint / adviser lacked diligence in assessing client’s fabricated qualifications when introducing client to complainant for employment / acted despite conflict of interest / Registrar rejected complaint on basis it did not disclose any statutory grounds of complaint / Immigration Advisers Licensing Act 2007, s7 / HELD / complainant employer not a client of adviser for purposes of Act / client’s evidence does not support complainant / evidence concerning client and adviser suspicious, but does not link wrongdoing of client to adviser / INZ verified qualifications as genuine / client and her agent represented qualifications as genuine / full investigation unlikely to uncover evidence of wrongdoing by adviser due to passage of time and client and agent residing overseas and being unlikely to co-operate / conflict of interest complaints fail as no evidence that client did not know of additional payments to adviser or agent / appeal rejected

Sanctions / adviser failed to provide client an opportunity to review s61 requests before lodgement, failed to indicate whether second s61 request was likely to be futile and advise of risks, and failed to have second written agreement for second s61 request / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl9a, cl9b, cl18a / HELD / first appearance before Tribunal / gravity of offending at lower end of moderate / adviser accepted all wrongdoing early / has made changes to her practice, so a repeat of conduct is unlikely / adviser has been mature and professional in disciplinary process / fee paid for second s61 request wasted / professional obligations breached are important safeguards to clients / breach had no implications for client as adviser’s mistakes did not cause client’s unlawful status or financial loss / compensation therefore not appropriate / adviser censured / ordered to pay $1,500 financial penalty / ordered to refund fees of $920