The Immigration Advisers Licensing Act 2007 Complaints and Disciplinary Procedures

Immigration Advisers Complaints and Disciplinary Tribunal Functions

The functions of the Immigration Advisers Complaints and Disciplinary Tribunal (the Tribunal) are set out at section 41 of the Immigration Advisers Licensing Act 2007 (the Act), as being to:

• make decisions on matters about immigration advisers that are referred to the Tribunal by the Registrar under section 48 of the Act
• make decisions as to whether an immigration adviser's licence should be suspended under section 53 of the Act pending a final decision in regard to a matter involving a licensee, and
• hear appeals against:
• a decision of the Registrar to cancel the licence of an immigration adviser under section 27 of the Act, or
• a determination by the Registrar to reject a complaint under section 451b or c of the Act as not disclosing a ground of complaint, or as being trivial or inconsequential.

General Information for clients

Under the requirements of clause 9c of the code of conduct, advisers must:

• explain the details of the complaints and disciplinary procedures that are outlined in the Immigration Advisers Licensing Act 2007 (the Act) to the client
• provide the client with the details of the complaints and disciplinary procedures that are outlined in the Act.

The provisions of sections 44(1)a and b of the Act, allow for any person to make a complaint to the Registrar concerning the provision of immigration advice by:

• a licensed immigration adviser; or
• a person who was a licensed immigration adviser, in the two years before the date of the complaint (a former licensed immigration adviser).

The grounds for complaint about a licensed immigration adviser or former licensed immigration adviser are set out at section 44(2) of the Act, as follows:

• negligence
• incompetence
• incapacity
• dishonest or misleading behaviour
• a breach of the code of conduct

None of these terms are specifically defined in the Act, but the Authority has defined them in its Complaint Form using their ordinary or dictionary meaning. The concepts relating to the terms are:

• Negligence - A person who behaves negligently is a person who is not doing what a reasonable person would do in a situation where that person owes a duty of care. In essence, it is where an adviser is careless in relation to their professional duties.
• Incompetence – When a licence is granted, the advisers is assessed against the Immigration Advisers Competency Standard and must main them, An adviser who is incompetent is not meeting those standards. This is not unlike negligence or carelessness, but it covers a person who does not have the skills to perform the work properly. If a person is working beyond their area of skill, they may take great care, but still be found to be incompetent.
• Incapacity - A person who is incapable is a person who is not able to deal with something properly. In this context, incapacity relates to the adviser’s conduct in providing immigration advice. In this category are people who have lost the ability to carry out their professional responsibilities or do their work properly, and may not be able to understand their loss of ability.
• Dishonest - A person who does not tell the truth or does not tell the complete truth is dishonest. Dishonesty covers a wide range of behaviour, including stealing, misrepresentations, forging, using improper pressures, and using documents improperly.
• Misleading- A person who behaves in a misleading way is a person that tries to lead another person to have an incorrect impression or belief. This too covers a wide range of behaviour, if a communication to another person, whether spoken, written, or through behaviour is not correct; it is likely misleading. The most serious category is when it is done dishonestly.
• A breach of the code of conduct- The code of conduct sets out the professional and ethical standards of behaviour required of advisers. A breach of the code of conduct is grounds for complaint.

The criteria that must be met for a complaint to be valid are set out section 44(3) of the Act, and state that it must:

• be made in writing
• specify the ground or grounds that form the basis of the complaint
• state whether or not the complainant has made attempts to resolve the complaint using the immigration adviser's (or former licensed immigration adviser's) own complaints procedure, and the outcome (if any) of that process
• be accompanied by copies of any supporting documentation
• not be made anonymously.

Completing Part A of the Authority's Complaint Form is the best way to ensure that a complain is made in the required format.

The procedure that the Authority must follow on receipt of a complaint is outlined in section 45 of the Act. The first decision that the Registrar must make is whether to accept or reject the complaint. The Registrar may also request the complainant to consider whether or not the matter could be best settled by the complainant using the immigration adviser's own complaints procedure.

If accepted by the Registrar, the complaint must be sent to the Tribunal for determination. This process involves both the preparation of the complaint for submission to, and the filing of it with, the Tribunal. The detail regarding the preparation and filing of a complaint with the Tribunal is outlined at section 47 and section 48 of the Act respectively.

The Registrar may reject a complaint if it:

• does not meet the required criteria
• does not outline any of the grounds of complaint, or
• relates only a trivial or inconsequential matter.

If the Registrar makes a determination to reject a complaint for any of these reasons, they must inform the complainant of this decision in writing.

In the latter two situations (i.e. complaint rejected because it does not outline any of the grounds of complaint, or relates only a trivial or inconsequential matter) the complainant has a limited appeal right to the Tribunal. The provisions of section 54 of the Act stipulate that any such appeal must be made in writing, and be accompanied by a copy of the notice given by the Registrar, together with any other information the person wants considered by the Tribunal.

After considering the appeal, the Tribunal may:

• reject the appeal
• determine that the decision of the Registrar was incorrect, but nevertheless reject the complaint upon another ground
• determine that it should hear the complaint, and direct the Registrar to prepare the complaint for filing with the Tribunal, or
• determine that the Registrar should request the complainant to consider whether or not the matter could be best settled by the complainant using the immigration adviser's own complaints procedure.

The Tribunal’s decision in respect of such an appeal is final, and the complainant has no right to appeal the decision the District Court.

The Act allows the Tribunal to regulate its procedures as it thinks fit within the constraints of the legislation outlined at section 49, but does specify that matters or complaints must be heard “on the papers”. The option remains open however, for the Tribunal to, in its absolute discretion:

• request further information from any person in relation to a complaint or matter; and
• request that any person appear before the Tribunal to make a statement or an explanation in relation to a complaint or matter.

Section 50 of the Act stipulates that after hearing a complaint, the Tribunal can decide to:

• dismiss the complaint
• uphold the complaint, but take no further action, or
• uphold the complaint, and take further action against the licensed immigration adviser or former licensed immigration adviser.

If the Tribunal decides to take further action against the adviser, the disciplinary sanctions that it may impose are outlined at section 51 of the Act, and include:

• caution or censure the adviser
• require the adviser to undertake specified training or otherwise remedy any deficiency within a specified period
• suspend the adviser’s licence for the unexpired period of the licence, or until the person meets specified conditions
• cancel the adviser’s licence, or
• issue an order preventing the adviser from reapplying for a licence for up to two years, or until certain conditions are met.

If an adviser is required to undertake specified training or otherwise remedy any deficiency within a specified period, and he or she fails to demonstrate to the satisfaction of the Registrar compliance with that requirement, the adviser's licence is deemed to be cancelled at the end of the specified period.

The Tribunal may also impose the following disciplinary sanctions on the adviser:

• an order for the payment of a penalty not exceeding $10,000
• an order for the payment of all or any of the costs or expenses of the investigation, inquiry, or hearing, or any related prosecution
  
  [If an immigration adviser is required to undertake either of the above, any payment ordered by the Tribunal may be recovered as a debt due to the Crown.]

• an order directing the licensed immigration adviser or former licensed immigration adviser to refund all or any part of fees or expenses paid by the complainant or another person to the licensed immigration adviser or former licensed immigration adviser, and
• an order directing the licensed immigration adviser or former licensed immigration adviser to pay reasonable compensation to the complainant or other person.

The decision to impose disciplinary sanctions must be delivered in writing to both the complainant and the person complained about, and must give reasons for that decision.

An adviser can appeal against a disciplinary sanction to the District Court.

The length of time that the complaints process takes to result in a decision depends on several factors, including:

• how complicated the complaint is
• how many questions the Registrar or Tribunal has
• how long any questions take to be answered, and
• in the case of a sanction being imposed by the Tribunal, whether the adviser appeals this decision to the District Court.

The flowchart below can also be found in the Complaint Form.

Flowchart: Details of the Immigration Advisers Licensing Act 2007 complaints and disciplinary procedures

See Complaints and disciplinary procedures chart.

Additional information for advisers

Clause 9d of the code of conduct further requires that where complaints have been received by the Registrar, advisers must provide timely responses to requests by the Registrar, as required by the Registrar’s operating requirements.

The Act allows under the provisions of section 53, for the Registrar to refer a complaint to the Tribunal to determine whether the licence of the immigration adviser concerned should be suspended as an interim measure, in a specific situation. This would occur where the complaint is being prepared for submission to the Tribunal, and the Tribunal considers that it is necessary or desirable to suspend the licence having regard to the interests of the public.

Section 56 of the Act also recognises that an inspection may be conducted for the purpose of obtaining information in relation to complaints, and section 57 of the Act gives any person authorised by the Registrar inspection powers to:

• at any reasonable time, enter any premises where the person conducting the inspection has good cause to suspect that the licensed immigration adviser or former licensed immigration adviser works or worked
• question any licensed immigration adviser, former licensed immigration adviser, or other person at any such premises
• require a licensed immigration adviser or former licensed adviser to produce for inspection relevant documents in that person’s possession or control, and
• inspect and take copies of such documents.

Under the provisions of section 46 of the Act the Registrar may of his or her own motion, make a complaint on one of the grounds for complaint, and prepare it for referral to the Tribunal.

Advisers have the following rights during the complaints process:

• Knowing the identity of the complainant - The adviser is entitled to know the identity of the complainant, unless the Registrar considers that there are exceptional circumstances to justify the withholding of the complainant’s identity.
• Notification of the complaint referral to the Tribunal - Upon filing a complaint with the Tribunal, the Registrar must give written notice of the referral, a copy of the complaint, and any further information that has been gathered on the complaint to the adviser.
• Having the opportunity to respond to the complaint - Once the Registrar has made a decision to release or withhold the complainant’s identity, the adviser is entitled to written notification of the complaint, including a copy of the complaint and supporting evidence. The adviser has the right to submit a written reply to the Registrar. The Registrar will continue the complaints process if the adviser either fails to submit a written reply within 10 working days or meets the agreed extended deadline.
• Having the right to request proof of identity and authorisation by the Registrar – from anyone who undertakes an inspection to gather information in relation to a complaint.
• Notification of a request for licence suspension to the Tribunal - The Tribunal must advise the adviser within 10 working days of its intention to suspend their licence. The notice provides 10 working days within which to make written representations to the Tribunal as to why the licence should not be suspended.
• Suspension of licence - If the Tribunal decides to suspend a licence, it must inform the adviser of:

• the grounds for the decision
• the date on which the suspension takes effect
• the period or duration of the suspension, and
• the right of appeal to the District Court under the Act.
• Notification of the Tribunal’s decision – The Tribunal must communicate its decision to the adviser.
• Right of appeal - A person subject to a sanction from the Tribunal has a right of appeal to the District Court against the Tribunal’s decision.
• Interim order by District Court pending outcome of an appeal - An adviser may apply to the District Court for an order allowing him or her to engage in providing immigration advice. If the District Court refuses to make an interim order, the adviser may appeal to the High Court against the decision within one month after the date of the refusal.