Fitness Policy 

Purpose

This policy sets out the fitness standards all immigration adviser licence applicants must meet and the fitness assessment process that the Immigration Advisers Authority (the Authority) uses when it processes an application.

Fitness requirements

Under section 15 of the Immigration Advisers Licensing Act 2007 (the Act) the Registrar must be satisfied that an applicant is not prohibited from licensing and is fit to be licensed under sections 16 and 17 of the Act.

The Registrar bases the fitness decision on information from the applicant, a police certificate from the New Zealand Ministry of Justice or an equivalent international agency and any other relevant information.

Prohibited from licensing (section 15)

Section 15 (1) of the Act states that an applicant is prohibited from licensing if they:

• are an undischarged bankrupt
• are prohibited or disqualified under any of the provisions of sections 382, 383, or 385 of the Companies Act 1993 (or any corresponding provision of the Companies Act 1955) from managing a company
• have been convicted of an offence against the Immigration Act 2009, the Immigration Act 1987 or the Immigration Act 1964
• have been removed or deported form New Zealand under the Immigration Act 2009, the Immigration Act 1987 or the Immigration Act 1964
• are unlawfully in New Zealand.

Section 15 (2) of the Act states that persons who hold or have held any of the following offices or employment are prohibited from being licensed while holding the office or employment or at any time within 12 months after leaving the office or employment:

• Ministers of Immigration and Associate Ministers of Immigration in the New Zealand Government
• any immigration officer, visa officer, or refugee status officer (as defined in the Immigration Act 2009)
• any immigration officer or refugee and protection officer (as defined in the Immigration Act 2009.

The Registrar has no discretion to licence a person prohibited from licensing.

Restricted from licensing (section 16)

Section 16 of the Act identifies persons who are restricted from licensing and establishes a presumption against licensing.
The Registrar can overturn this restriction if satisfied that the nature of the offence or matter that brings about the restriction is unlikely to affect adversely the applicant’s fitness to provide immigration advice.
The following persons are subject to a restriction on licensing:

• persons who have been convicted, whether in New Zealand or in another country, of a crime involving dishonesty, an offence resulting in a term of imprisonment, or an offence against the Fair Trading Act 1986 (or any equivalent law of another country)
• persons who under the law of another country:
• are an undischarged bankrupt
• have been prohibited or disqualified from managing a company
• have been convicted of an immigration offence
• have been removed or deported from the country
• a person to whom Section 15(1)(a) or (b) has applied in the past.

Other matters relevant to fitness for licensing (section 17)

Section 17 of the Act sets out other matters that the Registrar may consider when considering the fitness of an applicant:

• any conviction, whether in New Zealand or in another country, for an offence of a kind other than those referred to in sections 15 and 16
• any disciplinary proceedings, whether in New Zealand or in another country, and whether in relation to the provision of immigration advice or in relation to the conduct of any other occupation or profession, taken or being taken against the person (including any past cancellation or suspension of a licence under this Act, or any non-compliance with any sanction imposed under this Act)
• whether or not the person is related by employment or association with a person to whom a licence would be refused under sections 15, 16 or 17.

Fitness for licensing for an initial application for an immigration adviser licence

Section 8 of Form 101: Initial Licence Application requires the applicant to answer questions about their fitness for licensing and in some circumstances provide further information:

• questions 1 to 6 require the applicant to declare whether they meet any of the criteria for prohibition in the Act. An applicant is prohibited from applying for a licence if they answer yes to any of the questions
• questions 7-9 require the applicant to declare whether they meet any of the criteria for restriction under the Act. The Registrar requires applicants to provide full details of the circumstances surrounding the relevant offence or matter
• questions 10, 11, 12 and 13 require the applicant to declare whether they meet any of the criteria under section 17 of the Act. Applicants are required to provide full details of the circumstances surrounding the relevant offence or matter.

If the applicant has ticked yes to any of questions 7-13, the Authority will carry out a fitness assessment.

As part of this assessment, the Authority will consider information supplied with the application and if necessary seek further information directly from the applicant or consent from the applicant to seek information from third parties.

In the event there are any concerns arising from information supplied, the Authority will inform the applicant of these concerns and provide them with an opportunity to comment.

The application may be refused in the event the applicant does not pass the fitness assessment.

Fitness for licensing for a renewal or upgrade of an immigration adviser licence

Form 201: Upgrade Application (Qualification); Form 202: Upgrade Application; Form 301: Standard Renewal Application; and Form 302: Fast Track Application require the applicant  to answer questions about their fitness for licensing and in some circumstances provide further information:

• questions 1 to 7 require the applicant to declare whether they meet any of the criteria for prohibition in the Act. An applicant is prohibited from applying for a licence if they answer yes to any of these questions
• questions 8-14 require the applicant to declare whether they meet any of the criteria for restriction under the Act. The Registrar requires applicants to provide full details of the circumstances surrounding the relevant offence or matter.

If the applicant has ticked yes to any of questions 8-14, the Authority will carry out a fitness assessment on the application.

If an applicant has a complaint pending before the Immigration Complaints and Disciplinary Tribunal, they will be required to tick yes to question 12 and provide the relevant information requested.

As part of the fitness assessment, the Authority will consider information supplied with the application and if necessary seek further information directly from the applicant or consent from the applicant to seek information from third parties.

In the event there are any concerns arising from information supplied, the Authority will inform the applicant of these concerns and provide them with an opportunity to comment.

The application may be refused in the event the applicant does not pass the fitness assessment.