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Newsletter May 2012

Adviser ordered to pay $21,000

An immigration adviser has been ordered to pay more than $21,000 after trying to exploit one client and giving inappropriate advice to another.

Rajesh Kumar, of Hannahraj Consultants Limited in Manukau, tried to demand an extra $1,000 from an Indian manager by withholding his passport and gave such poor advice to another Indian national that his client ended up being in New Zealand unlawfully.

In the first case, Kumar received $3,600 in cash to help an Indian manager secure a residence permit. However, when it became clear the application had been successful, Kumar demanded more money and retained his client’s passport knowing Immigration New Zealand would be unable to issue the permit until he released it.

Read the full press release --

Read both Decision No: [2012] NZIACDT 7 and [2012] NZIACDT 8 in full.

Supervisors permitted two provisional advisers

Although the Registrar expressed a wish for supervisors to only take on one provisional adviser in our December 2011 newsletter, a formal review of the supervision policy has now been concluded. The Registrar has set a limit of two provisional advisers per supervisor.

This approach:

From today (1 May 2012) those seeking provisional licenses will be refused if the supervisor named in their application already supervises two provisional advisers.

Read the new supervision policy --

Apply to become a supervisor --

Tribunal 2012 round up

The Immigration Advisers Complaints and Disciplinary Tribunal recently issued several decisions. Below we have summarised the issues, learnings and decision in each case. Please read the whole article carefully and use it to improve your professional and business practices.

Read the full decision by clicking on the highlighted links.

Complaints dismissed

Where a complaint is not upheld the Tribunal directs that the decision can only be published in a way that does not identify the complainant or the adviser. As a result, names have been withheld from the following cases.

Decision No: [2012] NZIACDT 6

In this case, an adviser was held to account for informal advice given over the phone. An employer called to find out whether his employee was likely to be approved for a further work permit. On the information given, the adviser surmised the application was unlikely to succeed. As a result, the employer withdrew his offer of continued employment and his employee complained to the Immigration Advisers Authority. He claimed he had been affected by incorrect advice.

The Tribunal chair was satisfied the adviser was never engaged in a professional capacity and the advice provided was accurate.

You can protect yourself from this kind of complaint and avoid miscommunication or misunderstandings by sending potential clients what is known as a letter of non engagement.

Your letter of non-engagement should:

  1. summarise the discussion that has taken place, what was said and when it was held
  2. include what, if any, time limitations the client faces. For example, when a client’s visa is about to expire and they need to take immediate action.
  3. clarify your current non-engaged position and at what point that changes. For example, the day after you receive fee payment

Decision No: [2012] NZIACDT 9

In another case, an altercation broke out after a client claimed she had received incorrect advice and turned up at the adviser’s office with three other people.  

The adviser was absent from the office when matters escalated and his wife called the police. On his return, he investigated the incident and took written statements.

The Tribunal chair dismissed the complaint noting the immigration advice given was correct and the adviser behaved professionally before, during and after the altercation.

Decision No: [2012] NZIACDT 10

The final case saw an adviser accused of failing to communicate with their client and failing to hand over the client’s file when requested.

The adviser disputed the complaint and provided a written agreement signed by the client that identified the difficulties she would face.

The Tribunal chair noted the agreement accurately identified the pitfalls of lodging a section 35A (now known as a section 61) application and there was nothing in the client’s file to indicate the adviser acted in ignorance, made a mistake, or misled her client as claimed.

The chair also said: “The fee charged was modest, and the papers do not suggest there was any element of exploitation where fees were sought to be generated by advising that a meritless application should be made.”

To protect yourself from these kinds of complaint, you can:

  1. use a non-engagement letter
  2. outline any difficulties that could arise in a client’s application
  3. keep accurate records
  4. update records in a timely fashion.

Complaints upheld

Decision No: [2012] NZIACDT 16

Put your client first - this was the Tribunal’s message in a recent case where an adviser failed to protect the interests of his client.

Prem Adeep Singh provided his services in association with a recruitment agency. This in itself is not against the law. However, he overstepped the mark when he used his professional standing as a licensed immigration adviser to give his client confidence in the recruitment agency and caused his client to understand that he was in control of the recruitment agency’s work.

The Tribunal found that fees were entrusted to the recruitment agency without appropriate caution and Mr Singh had negligently failed to make proper enquiries into the agency’s “grossly defective” offer of employment before submitting it to INZ.

The Chair accepted Singh seemed to have been duped, to some extent, by the person operating the recruitment agency but treated the issue as one of competence. This approach resulted from the need for the Tribunal to balance “the need to protect the public”, while providing “the opportunity for Mr Singh to establish himself with full standing as a member of the profession”. A substantial period of supervision was therefore imposed should he wish to re-enter the profession, in addition to a $2,000 penalty.

Singh was ordered to pay $5,300 including: compensation by way of the full sum of $5,000 paid in fees and $300 as reimbursement for the client’s time and cost of travel, less any amounts already refunded. 

You can learn to put your clients interests first by following these three steps.

  1. Keep in mind any potential conflicts of interest, and ensure that the interests of your client are your first priority
  2. Make proper enquiries into all documents submitted in support of an application
  3. Exercise caution when giving fees to another agency

You are responsible

You, the licensed immigration adviser, are responsible for your clients and their fees. Regardless of who owns or manages the business, the Tribunal will always hold the licensed immigration adviser responsible.

Take the recent case of an adviser who was ordered to pay thousands of dollars in penalties and refunds over four complaints.

The adviser:

By accepting documents prepared by the unlicensed business owner and then filing them with the pretence that they were prepared by a licensed immigration adviser, he was effectively acting as a “rubber stamp” processor and “put his licence at the business owner’s disposal”.

Accordingly, he also dishonestly represented the nature and quality of the documents submitted to Immigration New Zealand.

The chair accepted that the adviser lacked experience and maturity, and was to an extent the victim of the business owner who he regarded as experienced and in the nature of a mentor. The chair treated this as a mitigating factor but noted: “The Immigration Advisers Licensing Act does not licence immigration practices, it licenses individuals who may be employees or otherwise engaged by a practice. Those licence holders are required to protect their clients in relation to performance of services, and are personally responsible for fees.”

The adviser was ordered to pay $5,625 compensation by way of the full sum paid in fees and a financial penalty of $2,000. The chair noted that the adviser had already had his licence cancelled and an order made preventing him reapplying for a licence for two years as part of a previous decision.

The full decisions ([2012] NZIACDT 4 and 5) are currently unavailable for legal reasons but will eventually be uploaded to the Ministry of Justice website.

Advisers have their say

The first meeting of the 2012 Licensed Immigration Advisers Reference Group took place at our offices on 17 April.

The eight advisers in the group include:

  1. Toni Alexander, of A1 Immigration Services Limited
  2. Jennifer De Wald-Harrison, of Ernst & Young Limited
  3. Matt Fistonich, of Fragomen
  4. Howard Levarko, of Chalkhills Immigration Consultants
  5. Robson Liang, of IEF Limited representing NZAMI
  6. June Ranson – Woburn International Limited
  7. Holger Weischede – NZ Immigration Help Service Limited
  8. Julie Wilson – NZ Medics

Among other issues, advisers discussed an INZ exempt report. The report showed the vast majority of those ticking exempt boxes on applications were genuine.

Read the full minutes--

The value of licensing survey results

Our survey found advisers who joined the profession after licensing came into force tend to have a more positive view of the regime than those that joined before.

According to the value of licensing survey:

This is lower than last year’s 92% positive response.  The positive response from new advisers was 98%, compared to 82% from advisers who practised pre-mandatory licensing.

We would like to say thank you to all those that took part in our online survey. Nearly 60% of advisers responded.

Read the full survey

Presentations

Catch up on any Authority and Immigration New Zealand (INZ) presentations you have missed by checking our website. The Presentations button can be found in the advisor tools section.

Recent slides to be uploaded include INZ’s exempt report and the Authority’s adviser ethics presentation.

Adviser numbers

Full licence 413
Limited licence 14
Provisional licence 90
Total licences 517
Adviser on/offshore 366/151
TTMRA licensed 90
Refusals decided 23
Appeals decided 4
Complaints to tribunal 100