Ministry of Justice

Diligence and due care / professional responsibilities and professional practice / Code of Conduct 2014, cl1, cl9b, cl20a, cl24a, cl24b, cl24c, cl25a, cl25f, cl26b / HELD / no breach cl1 / insufficient evidence adviser did not realise complainant’s work experience was ineligible for points under skilled migrant category / breach of cl9b / adviser did not inform complainant of futility of application / no written acknowledgement from complainant of such advice / complainant’s general text message or signature on service agreement insufficient / no breach of cl20a / breach of cl24a / adviser failed to offer refund when services terminated or when complainant requested refund / no breach of cl24b, cl25a and cl25f / adviser entitled to fee in accordance with service agreement / breach of cl26b / adviser tardy in communications with complainant / delays not justified by holiday period and other personal and professional commitments / complaint partially upheld

Dishonest or misleading behaviour / diligence and due care / professional responsibilities and professional practice / immigration and support services / Code of Conduct 2014, cl1, cl2e, cl17c, cl18a, cl18b, cl19f, cl20a, cl22 / HELD / no dishonest or misleading behaviour / breach of cl17c / adviser did not provide internal complaint procedure but complainant was made aware of it / disciplinary action unwarranted / no breach of cl18a, cl22 / written agreement and invoice provided / adviser not required to directly provide agreement or invoice / no breach of cl18b / adviser explained agreement over telephone / no breach of cl19f / adviser specified fixed fee for services / breach of cl20a / fee was reasonable as it covered extensive services / breach of cl2e / work by unlicensed employee mostly clerical and only minimal in immigration advice work / disciplinary response unwarranted / no breach of cl1 / adviser not required to provide translation services / complaint dismissed

Sanctions / adviser failed to confirm in writing details of material verbal discussions with complainant / Code of Conduct 2014, cl26c / HELD / first appearance before Tribunal / failure to confirm in writing numerous claimed verbal discussions with complainant not a trivial breach / written confirmation is important not just for record keeping but to assist clients in fuller understanding of verbal advice / wrongdoing at higher end of low in terms of gravity / credit for clean disciplinary history / adviser cooperated in Tribunal’s earlier process and admitted wrongdoing, but has not engaged in respect of sanctions / no remorse or apology / no compensation as adviser’s wrongdoing did not cause any expenses or loss to complainant / adviser censured / ordered to pay $1,000 financial penalty

Sanctions / adviser failed to respond to client’s request to check application status herself / failed to provide invoice describing services / failed to maintain client file and filing system / failed to make records available on request by Authority / failed to make updates about visa application and inform client about INZ request for evidence / failed to inform INZ his licence expired and that he could no longer represent client and her partner / failed to inform client and partner his licence expired and advise where to get assistance / Code of Conduct 2014, cl1, cl22, cl26a, cl26b, cl26d, cl26e, cl28b, cl28c / HELD / fourth appearance before Tribunal / adviser’s communications with INZ, client and her partner were unprofessional / conduct exacerbated by disciplinary history and failure to engage with Authority or Tribunal / no apology / no insight into wrongdoing / adviser censured / prevented from reapplying for licence for two years / ordered to pay $7,000 financial penalty

Sanctions / adviser’s service contract omitted details of second adviser and payment terms / refund clause did not comply with Code / mismanaged client funds / failed to provide file notes in client file / failed to confirm material discussions / failed to manage filing system / failed to ensure visa application documents were correct and complete / Code of Conduct 2014, cl1, cl19a, cl19i, cl24a, cl25a, cl25b, cl25e, cl25f, cl26aiii, cl26c, cl26d / HELD / fifth appearance before Tribunal / gravity of wrongdoing at higher end of moderate given high number of breaches / mismanagement of client funds most serious breaches, but no deceit / no training as adviser recently completed training and wrongdoing occurred before training undertaken / Tribunal cannot ignore systemic wrongdoing / partial refund due to breadth of failures / no compensation as adviser’s conduct did not cause declined visa / adviser censured / ordered to pay $6,000 financial penalty / ordered to refund fees of $1,438

Diligence and due care / professional responsibilities and professional practice / Code of Conduct 2014, cl1, cl2e, cl17a, cl17b, cl17c, cl18a, cl18b, cl20a / HELD / no breach of cl1 / best practice is to send draft visa application to client before filing with INZ, but adviser made no errors / breach of cl2e / failed to personally obtain instructions from complainant / cannot delegate obligation to complainant’s unlicensed agent / adviser must personally undertake and control client engagement from commencement until end / no breach of cl17a, cl17c / complainant confirmed receipt of required documents / no breach of cl18a / client received service agreement from adviser, albeit indirectly / breach of cl17b, cl18b / written explanation of summary of professional responsibilities and significant matters in agreement not sufficient / adviser must provide explanation personally and verbally / no breach of cl20a / $4,000 fee high, but not unfair or unreasonable / complaint partially upheld

Diligence and due care / confidentiality / professional practice / Code of Conduct 2014, cl1, cl4a, cl19a, cl19i, cl24a, cl25b, cl25e, cl25f, cl26aiii, cl26b, cl26c, cl26d / HELD / breach of cl1 / admits submitting incomplete and incorrect documents to INZ / no breach of cl4a / sending other clients’ files to Authority during investigation not a breach of confidentiality / breach of cl19a / admits failing to write in service contract name and licence number of second adviser who gave advice / breach of cl19i / admits failing to set out payment terms in contract / breach of cl 24a / admits refund clause not compliant with Code / breach of cl25b, cl25e, cl25f / admits failing to keep advance payment in separate client account and using it for private purposes / breach of cl26aiii, cl26c, cl26d / admits failing to keep file notes, confirm material discussions and maintain well-managed file system / no breach of cl26b / evidence shows regular communication with client / complaint upheld

Professional practice / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2e, cl3c, cl26c / HELD / breach of cl26c / adviser accepts he failed to confirm details of material discussions in writing with complainant / no breach of cl1, cl2e, cl3c / credibility / whether adviser had asserted discussions with complainant and used an unlicensed agent (rubber stamping) / neither complainant nor adviser found to be entirely truthful / Tribunal not in a position to find asserted discussions did not occur given unreliable nature of important aspects of complainant’s narrative / complaint partially upheld

Diligence and due care / professional responsibilities and professional practice / Code of Conduct 2014, cl1, cl2e, cl17b, cl26c / HELD / no breach of cl1 / INZ wrongly declined complainant’s partnership resident visa application as it failed to assess evidence of relationship being maintained during brief period of separation / adviser failed to advise complainant the risk of separation to satisfying ‘living together’ criterion / however, adviser did identify risk of decline from separation / no breach of cl2e / adviser adequately informed complainant of key risk of separation / any breach not sufficient to justify disciplinary response / no breach of cl17b / best way to facilitate client access to Code is to provide hard or electronic copy / however, cl17b only requires advice on how to access Code / adviser’s offer to provide copy of Code upon request sufficient / no breach of cl26c / Registrar did not identify any material discussions not confirmed in writing / complaint dismissed

Appeal against Registrar rejecting complaint / complaint adviser made misleading claim about contacting INZ, had no authority to work on complainant’s behalf, gave incorrect advice, and communicated poorly with complainant / Registrar rejected complaint on basis it did not disclose any statutory grounds of complaint / Immigration Advisers Licensing Act 2007, s442, s451, s54 / Code of Conduct 2014, cl1, cl16, cl18, cl19b / HELD / file evidences breach of cl1 / adviser gave incorrect advice on material matter that complainant could be issued second interim visa / adviser’s obligations continued when complainant asked for authority form and contract / adviser’s emails show evidence of unprofessional communications / other heads of complaint not established / appeal allowed

Sanctions / adviser failed to fulfil client’s requests for return of documents and fee after terminating instructions / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct, cl1, cl24b, cl24c, cl27b / HELD / third appearance before Tribunal / adviser neither honest nor professional / not first time adviser found to have lacked integrity / poor disciplinary record a significant aggravating factor / medical evidence provided in earlier complaint provides some context but not a justification for misleading client or breaching professional obligations / conduct comprises misconduct at higher end of spectrum as it involved intentional deceit of client over extended period / Tribunal has no power to order return of documents / financial penalty would be higher if refund was not directed / adviser censured / prevented from reapplying for licence for maximum period of two years / ordered to pay $7,000 financial penalty / ordered to refund fees of $3,495

Sanctions / adviser missed deadline to lodge residence application in accordance with special one-off residence policy / Immigration Advisers Licensing Act 2007, s3, s50, s51 / Code of Conduct 2014, cl1, cl18a, cl26c / HELD / fourth appearance before Tribunal / failure was an oversight, but not excusable human error as adviser should always be aware of deadline for applications and have systems in place to draw deadlines to her attention / a timely application would have succeeded as client and wife were eligible under policy / emotional damages award appropriate as couple suffered real frustration, sadness and high degree of anxiety / future legal costs and INZ fees not claimable as couple chose to stay and incur future costs / adviser censured / ordered to pay $2,500 financial penalty in light of disciplinary history, acknowledgement and priority to compensation / compensation of $8,000 awarded for costs of s61 requests made to rectify adviser’s negligence and emotional distress

Sanctions / adviser failed to personally advise client and obtain instructions, permitted unlicensed staff to give immigration advice, and failed to specify name and licence number in written service agreement / Immigration Advisers Licensing Act 2007, s3, s6, s7, s50, s51 / Code of Conduct 2014, cl2e, cl3c, cl19a / HELD / first appearance before Tribunal / obligations in Code are personal to adviser and cannot be delegated / unlicensed staff confined to clerical work only / convenience of client to deal with staff in client’s country not a justification / adviser’s work of no value to client / Tribunal’s power to award compensation arises from adviser’s breaches irrespective of who fee was paid to / adviser censured / directed to undertake training / ordered to pay $2,500 financial penalty having regard to serious wrongdoing, no acknowledgement, remorse or apology, but also clean record and rubber stamping involving one client / compensation of $35,000 awarded for fee paid to company