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Newsletter March 2012

Case dismissed

The Immigration Advisers Complaints and Disciplinary Tribunal has dismissed six cases since its inception. The six cases relate to three scenarios surrounding negligence, misappropriation of fees and risk disclosure.

Here we analyse each scenario so you may learn how to best protect yourself from a complaint being upheld, both:

In the case of CO v DSI the adviser stood accused of negligence after his client’s Expression of Interest (EOI) was unsuccessful. The client claimed his adviser should have identified and fully disclosed this risk.

Here the Tribunal chair went into great detail on how he established negligence.  He explained an adviser can be wrong without being negligent, if he or she makes a decision that a competent adviser would have made.

Ultimately, the chair concluded the adviser had taken a fair view and one which may have been taken by any competent and careful adviser.

He said: “Individual advisers and immigration officers will have different views on particular aspects of immigration policy, and the meaning of the wording used to prescribe it. Some cases are clear but there are inevitably boundary issues where different views are open.”

“It is not a realistic to expect a professional adviser to be in a position to necessarily identify all potential issues in an initial review.”

“Furthermore, the view taken by Immigration New Zealand (INZ) was one that could have been tested and potentially wrong.”

The Tribunal chair also noted that he will consider other issues that come to light during the Tribunal process and not be limited to only those referred by the Authority.

Learning 1: Maintain competency standards.
In regard to negligence, you will be judged against what a competent adviser would have done in the same situation.
Learning 2: Being wrong or taking a different view from an immigration officer doesn’t necessarily amount to negligence.

The Tribunal here agreed with the actions of the adviser and accepted that the opinion of the immigration officer could have been further tested.

Misappropriating fees
In the case of HE and SE v QXF, the adviser stood accused by his employer and client of misappropriating fees, overcharging and misrepresenting himself as the principal of the company rather than an employee.

The adviser explained that he had intended to safeguard the funds from his employer’s potential insolvency.

The Tribunal said the adviser had: “rightly identified he was personally responsible to clients for managing fees until they were earned and took steps to protect clients. He did so when he had adequate information to believe his employer was in a financially parlous situation and potentially going to leave his clients at risk.”

Learning 1: If you are a licence holder, then you are personally responsible for making sure all the clauses of the code of conduct are being met by your business, financially liable for what happens to client funds and legally accountable if things go wrong.
Learning 2: Keep good records.
Here the adviser was able to “fully account for all funds appropriately”.
Learning 3: Give a full and comprehensive response at the outset to the complaint evidenced by supporting documentation.

Risk disclosure
In the case of CE v TFX the adviser stood accused of failing to fully disclose the risk that her client may not get the permit he sought.

Fortunately in the written agreement, signed by both parties, the adviser identified:

The Tribunal chair said: “Given the adviser expressly identified her concern in the written agreement, and ensured the complainant initialled the written expression of her concern, I do not consider any blame can attach to the adviser for the miscommunication.”

Learning 1: Provide a written agreement.
All advisers are bound by the code of conduct to provide a written agreement and, as evidenced by the case above, it can prove useful to you as well as your client.
Learning 2: Take time to fully explain the risks of the visa application being unsuccessful and make sure the client understands these risks.
Here the adviser made sure the client understood the risks specifically related to his application in writing.

To find out more about these cases and others, visit the Tribunal’s website.

Offences: How investigators deal with unlicensed advisers

The Authority’s enforcement team delivered a comprehensive presentation on the complaints process to NZAMI members on 18 November 2011.

For those that weren’t there, we have serialised the talk in three parts:

The Authority, currently has two investigators focusing on offences under the Immigration Advisers Licensing Act 2007 (The Act).

Of the eight offences in the Act, the most common relate to unlicensed advice or receiving or asking for a fee or reward for immigration advice.  If a person is convicted of these offences they could face a maximum penalty of $100,000 and/or seven years imprisonment.

Other offences include:

All of these are punishable by a fine not exceeding $10,000 and some also to an imprisonment term not exceeding two years.

We receive a large number of issues each week which are logged and assessed to determine the most appropriate course of action.  Consideration is given to severity, number of victims, amount of money involved, quality of the evidence available and any previous warnings.

To clarify, complaints are raised against licensed advisers in relation to the provision of immigration advice, while offences, refer to various unlicensed adviser activity.

Not all breaches of the Act end up in prosecution.  It is very expensive and time consuming.  Some investigations may become very complex and the subsequent preparation of the prosecution file can end up taking the good part of a year for an investigator to put together.

If we are able to get someone to comply with the law prior to prosecution then we will do so.  Those who continue to re-offend will leave no choice but for us to proceed with a prosecution. 

Investigators are responsible for the full investigation and compilation of the prosecution file.  If a search warrant is required we apply for it and accompany Police carrying it out.  This is the same if we wanted to arrest a person, the Police make the arrest and our charges are added.

Some of the main issues we have when dealing with offences is a lack of information or evidence from the outset.

Investigations into offences require very detailed statements to be obtained. Every investigation we do needs to be able to meet the court standard of proving the offence beyond a ‘reasonable doubt’.

Due to the large number of potential offence issues we receive, not all breaches of the Act will result in prosecution.  

We log all information about potential offences. In some instances the best course of action will be to ‘do nothing’. 

This could be because there is insufficient prima facie evidence to support further investigation or that the breach is minor and we have other potential offences taking priority. 

INZ staff subjected to unprofessional conduct from advisers

The Authority has been made aware of unprofessional behaviour by licensed immigration advisers towards INZ staff and wishes to remind advisers that this kind of behaviour is not only unprofessional but contrary to Competency Standards requiring advisers to:

6.1 Demonstrate professional, ethical, and socially responsible behaviour and practice

and the Licensed Immigration Advisers Code of Conduct 2010 clause:

2.1 (g) maintain respectful and professional relationships.
Most advisers understand a little politeness and courtesy goes a long way. Those that don’t, could face a complaint to the tribunal from INZ staff if they were to pursue such an approach.

Dates for your diary

7 March - Have your say on licensing by completing our Value of Licensing Survey February 2012 sent to your inbox on Wednesday 22 February. The survey closes at midnight next Wednesday.

9 March - Book your place for next Friday's Immigration Adviser seminar  by emailing INZ Henderson by tomorrow.

28 March - Give your opinion on extending the current licensing regime until 1 January 2013 by emailing Operational Policy Manager Natasha Narayan.

13 February - As of this date, INZ do not require licensed immigration advisers to first get written authorisation from their clients before making a Privacy Act request. Changes have been made to INZ’s operations manual section A7.10.

Adviser statistics

Full licence 405
Limited licence 18
Provisional licence 81
Total licences 504
Adviser on/offshore 152/352
TTMRA licensed 84
Refusals decided 23
Appeals decided 4
Complaints to tribunal 85

One in ten advisers affected by complaints

On the right, we see there has been a total of 95 complaints received to date.

This can give the misleading impression that one in five advisers has had a complaint made against them.
In reality, these 95 complaints relate to 53 advisers as there is often more than one client complaining about the same adviser.

In sum, this means complaints affect one in ten advisers.

And finally...

Everything you need about Authority policy is available online, from policies on English Language to others on Provisional Licence and Supervisers and Not-for-Profit.