Defining the client
It is important that advisers clearly recognise who their clients are in order to ensure that they fulfil the obligations that they owe to them.
The client could be any individual, firm, legal entity or organisation to whom or to which a licensed immigration adviser provides immigration assistance or advice.
The client may not always be the final recipient of a visa or the subject of an appeal. The adviser could be providing advice to an applicant’s employer or to a sponsor for a family category visa.
In any situation where the adviser is providing immigration advice the recipient of that advice is a client.
In some situations, the adviser may be dealing with more than one client in relation to the same immigration matter. In these situations confidentiality and potential conflicts of interest between the various clients or parties have to be managed, and the adviser must ensure that this is done with care.
Characteristics of the adviser-client relationship
The relationship between an adviser and their client has several distinctive characteristics. These include:
- The adviser is in a position of holding knowledge and expertise concerning New Zealand immigration legislation and instructions.
- The client has either little or no idea about New Zealand immigration legislation and instructions, and is relying on the expertise of the adviser to assist them.
- There may be cultural, language or gender barriers that need to be overcome.
- The client will provide information to the adviser that is both personal and confidential in nature. There is a clear expectation that the adviser will only use this information for the purposes of achieving an outcome regarding an agreed matter for the client.
Maintaining a relationship of confidence and trust and providing objective advice
A licensed immigration adviser must:
- maintain a relationship of confidence and trust with the client and provide objective advice
This clause reflects the duty an adviser has to recognise that their expert knowledge puts their client at a disadvantage in the relationship. The client must have confidence that the adviser will act in their best interests and they must be able to trust the adviser to provide advice that will assist them to make decisions that will be of the greatest benefit to them.
Knowing that an adviser will provide objective advice will assist a client to have this trust and confidence in their adviser. An adviser should be able to weigh up all the options available to their client and advise the option that they believe will be of the greatest benefit to their client.
An adviser should never rate one option higher than another based on a personal interest in that option. Clause 7 states that if the relationship of confidence and trust would be compromised due to a conflict of interest, then an adviser must not continue to act for the client.
Having a relationship of confidence and trust with their client is a positive relationship that will enable an adviser to:
- obtain information from their client in order to make good decisions
- inform the client of their options
- gain the confidence of the client
- ensure that the client understands their advice.
What has changed compared to the 2010 Code?
2010 Code – did not specifically mention the nature of the relationship between an adviser and their client
2014 Code – requires advisers to maintain a relationship of confidence and trust with the client and provide objective advice.
Acknowledging the cultural norms and values of clients
A licensed immigration adviser must:
- acknowledge the cultural norms and values of the client
This clause recognises that advisers are likely to encounter clients from a variety of cultural backgrounds when dealing with immigration matters.
The Office of Ethnic Communities is part of the New Zealand government and works to promote the benefits of ethnic diversity to develop prosperity for every New Zealander. Useful background information for advisers is available on their website, www.ethniccommunities.govt.nz.
The Office of Ethnic Communities has also published Ethnicity Matters - a guide to working with ethnic communities that is available.
Ethnicity Matters stresses the importance of remembering that diversity exists within community groups. Advisers may be able to see differences in their clients arising from:
- the level of information/services received prior to and on arrival in New Zealand
- settlement experiences
- different cultural or religious needs
- different needs of specific groups such as women, children, teenagers, or older people
- language and communication
- specific needs of refugees
- values and views (e.g. approaches to health/healing and well-being)
- social or economic exclusion within the host country.
It is also useful to remember that ethnic communities may identify with the following broad values:
- Collectivism: the well-being of the individual in the context of the collective is more important than individual well-being in isolation
- Hierarchy: elders and those who hold positions of esteem have influence and are viewed as the ‘spokespersons’ of a particular community
- Family: the immediate and wider family unit is important to wellbeing
- ‘Model migrant’: the perception that as a migrant one has to appear to be the model citizen, so negative incidents that may occur within a community are down-played
- Faith/religion: for some ethnic communities, their faith forms a central part of the community identity
- Self-sufficiency (‘for us, by us’): a desire to contribute to New Zealand’s future, and to build self-sufficient lives for their communities and families.
Individuals may not always identify with their community values and the broad values of an ethnic community may also change over time and be influenced through integration into New Zealand society.
As part of their continuing professional development (CPD), advisers may wish to keep themselves informed about:
Migration and labour market research undertaken in New Zealand, through sources such as:
General country conditions through sources such as:
- the United States Department of State Human Rights Reports available at http://www.state.gov
- the United Kingdom’s country information and guidance available at https://www.gov.uk/government/collections/country-information-and-guidance
- the Australian Department of Foreign Affairs and Trade Country Briefs, available at http://dfat.gov.au/geo/pages/countries-and-regions.aspx
- RefWorld, available at http://www.refworld.org/cgi-bin/texis/vtx/rwmain
- European Country of Origin Information (ECOI), available at http://www.ecoi.net
- ReliefWeb, available at http://reliefweb.int.
Facilitating the provision of interpreters and translators as appropriate
A licensed immigration adviser must:
- facilitate the provision of interpreters and translators as appropriate
Clause 2(c) sets out the requirement to facilitate the provision of interpreters and translators as appropriate. This recognises that advisers are likely to encounter language difficulties with clients when dealing with immigration matters and must arrange for interpreters and translators to be provided to clients so these difficulties can be minimised.
All applications or requests to Immigration New Zealand must be made in English. This means that if an applicant or requestor does not speak, read or write in English they will need assistance by way of translators or interpreters to successfully complete the application or request process.
The client needs to be able to convey to the adviser, in detail, all of the relevant information and background that pertains to their situation, so that the adviser can assess and place this information appropriately in context. Throughout this process, the client must be able to understand the adviser’s questions, and to ask the adviser to clarify any matters that are unclear if needed. Advisers may also be dealing with concepts that are difficult, even for clients who have no linguistic or cultural barriers to overcome.
To participate effectively in an interview with an adviser without assistance, a client requires very good language skills - far better than those required to understand and answer just a few simple questions.
Using an interpreter may be necessary for an adviser and client to communicate freely at the relatively advanced level needed to gain a shared understanding.
Many of the simple questions asked at the beginning of an interview, such as “what is your name?” or “where do you live?”, are the kinds of questions that the client may often be asked, and to which they may be able to respond. The client’s responses to such questions may not be a clear guide as to his or her higher-level language abilities.
Advisers could try the following strategies when assessing whether the client needs an interpreter:
- ask the client if he or she needs an interpreter. They may indicate immediately that they require assistance
- be alert for:
- repeated “don’t know” responses
- inability to answer questions posed
- inappropriate responses to questions posed
- difficulty in formulating clear responses
- keep in mind that non-verbal behaviour varies from culture to culture and person to person, but look out for:
- a puzzled expression
- lack of eye contact
- continual nodding of the head indicating agreement
- frequent (inappropriate) laughter.
If the need for an interpreter does not become clear until after an interview has commenced, it may be best to postpone the interview so that an interpreter can be arranged.
Where to get help
Trained interpreters can be accessed through a variety of national and regional interpreting bodies.
As a starting point, an adviser seeking the assistance of an interpreter or translator can access an online directory of translators and interpreters through the New Zealand Society of Translators and Interpreters (NZSTI) website, www.nzsti.org.
Certified translators can also be accessed through the Translation Service which operates within the Department of Internal Affairs as a stand-alone business, and provides professional translation services to businesses, central and local government, education providers and private individuals.
The Translation Service is an accredited agency for Immigration New Zealand, and more information about it can be obtained from the Department of Internal Affairs website, www.dia.govt.nz.
Using a trained interpreter – pre-interview considerations
Advisers may wish to consider the following strategies when preparing to use a trained interpreter at an interview:
- Brief the interpreter about the case. Go over any complex information that needs to be conveyed so that the interpreter has a clear understanding of this before the interview.
- Establish the objectives for the interview. Consider giving the interpreter a brief written overview.
- Establish the mode of interpreting (simultaneous/consecutive) and the need for the adviser to be kept informed, for example if there is extra discussion required for clarification.
- Stress the importance of confidentiality.
Be careful about treating the interpreter as a ‘cultural expert’. Whilst the interpreter is likely to be aware of the values and attitudes generally within his or her culture, they may not know the significance of any aspect of the culture for a particular client. Background cultural information may be checked in the interview with the client directly, or before or after the interview through the adviser’s own research.
Using a trained interpreter – interview considerations
Advisers may wish to consider the following strategies when using a trained interpreter at an interview:
- Arrange seating to allow direct communication between the adviser and the client – place the interpreter to one side.
- Introduce everyone present at the interview to each other, and explain their various roles.
- Explain why information is being sought and that questions will be asked to obtain the information required.
- Speak slowly and clearly, but naturally. Avoid jargon and slang and do not assume the client knows technical terms, even simple ones.
- Speak directly to the client and not to the interpreter – e.g. “Where did you live in Vietnam Mr Nguyen?” not “Ask Mr Nguyen where he lived in Vietnam”. Ensure that the client is using the same technique when speaking to you.
- Maintain appropriate eye contact with the client, and observe responses closely. Remember the importance of non-verbal communication.
- Allow adequate time for the interpreter to interpret questions, and for the client to answer.
- Appreciate that the notion of ‘word for word’ or ‘verbatim’ interpretation is a myth, as no two languages equate sufficiently for this to occur. The interpreter will use his or her professional skills to take the words spoken in one language, and provide a representation of them in the other language, so as to best convey their sense and meaning given the overall context of the situation.
- Periodically throughout the interview, check the client understands the questions asked and the immigration advice given if applicable.
- Remember that the interview is a two-way process. It is equally important for the client to be able to ask questions and to check that he or she has understood the adviser (and has been understood) as it is for the adviser.
- Discourage any private conversations between the interpreter and the client, and also between the adviser and the interpreter, during the interview itself.
- If control slips in the interview, stop it straight away and re-establish ground rules.
Working with an untrained interpreter (language assistant)
A client may often wish to use family or friends to interpret for them - i.e. to act as a language assistant - rather than obtain the services of a trained interpreter, as this is often free or at a minimal cost.
It is useful to bear in mind that the fact that a person is very competent in two languages does not mean they have the skills of an interpreter. Interpreters require professional training. Serious miscommunication is possible when essential professional skills are not present and the risks are not understood.
Where a trained interpreter cannot be obtained and it is necessary to use an untrained language assistant, the following guidelines are useful to keep in mind:
- Keep language as uncomplicated as possible. Do not try to use ‘broken English’ as this can make a sentence less clear, and can be insulting.
- Do not raise matters that are confidential.
- Explain clearly to the language assistant what the client must do or what will happen. Check that the language assistant fully understands what has been said, before they interpret for the client.
- If an available immigration advice professional has skills in the client’s language, that professional may be called in to assist.
If the adviser thinks it necessary, they could then arrange to see the client again with a trained interpreter. The person providing the information and the adviser are both at risk in situations where information is not correctly provided.
When these issues are not managed in an ideal or appropriate way, it is a good idea to record the fact that there were issues with communication.
Effective communication is at the core of all professional relationships, and transmitting information accurately to Immigration New Zealand is a key element of an adviser’s professional responsibilities. Dealing with language barriers is a professional skill and responsibility that an adviser should take very seriously.
Costs of using an interpreter or translator
The Code does not set out any requirement on advisers to bear the costs of using an interpreter or translator to either facilitate communication with a client, or translate documents that may need to be submitted as part of an immigration matter. When using an interpreter or translator, as a matter of best practice, advisers should clearly set out to their client how these costs will be covered, including clearly itemising these as disbursements if required.
A licensed immigration adviser must:
- where appropriate, advise the client when they may be eligible for legal aid under the Legal Services Act 2011 in relation to a refugee status or protection claim or appeal or immigration detention
In certain circumstances a client may be eligible for legal aid – that is they may be entitled to government funding to help them with a particular legal matter. Only approved lawyers can provide legal aid services. In the immigration context a person is only eligible for legal aid in relation to a refugee or protection status claim or appeal or immigration detention.
It is important that an adviser explains to potentially eligible clients when they may be entitled to funded assistance in relation to a refugee or protection status claim or appeal or immigration detention if they were to use the services of a lawyer.
An adviser may feel that they are at a disadvantage in needing to refer their client to another professional – however, it would be unethical to deprive some of the most vulnerable individuals from government funded advice if they are entitled to it.
Legal aid for immigration advice may be available only for the proceedings specified in section 7(1)(j) to (m) of the Legal Services Act 2011 as follows:
- proceedings before the Immigration and Protection Tribunal, as established by the Immigration Act 2009 , in respect of appeals against decisions to decline to grant recognition as a refugee or a protected person, or decisions to cease to recognise a person as a refugee or a protected person, as provided in sections 194(1) and 195 of that Act, or against liability for deportation arising under section 162 of that Act
- the processing, under Part 5 of the Immigration Act 2009, of any claim for recognition as a refugee or a protected person
- any proceedings before the District Court or High Court following an application made under section 316 or 324 of the Immigration Act 2009
- any appeal or review proceedings (as defined in section 4 of the Immigration Act 2009) in respect of proceedings or matters to which paragraph (j) or (k) applies.
The Ministry of Justice has additional information on their website about eligibility for legal aid, finding a civil legal aid lawyer and applying for legal aid.
The Ministry of Justice have published an Eligibility booklet to help people decide if they may be eligible for legal aid, http://www.justice.govt.nz/services/information-for-legal-professionals/information-for-legal-aid-providers/documents/grants-manual/Eligibility%20September%202011.pdf/view.
Find more information on legal aid on the Ministry of Justice website, http://www.justice.govt.nz/services/legal-help/legal-aid/civil/legal-aid-for-people-involved-in-civil-disputes.
What has changed compared to the 2010 Code?
2010 Code – did not include any requirement relating to legal aid
2014 Code – requires advisers to, where appropriate, advise the client when they may be eligible for legal aid under the Legal Services Act 2011 in relation to a refugee status or protection claim or appeal or immigration detention.
Obtaining and carrying out the informed lawful instructions of clients
A licensed immigration adviser must:
- obtain and carry out the informed lawful instructions of the client
Clause 2(e) requires an adviser to obtain and carry out the instructions of their client, but only where those instructions are both lawful and informed.
To ensure a client is in a position to provide informed instructions an adviser must provide them with sufficient advice and options to make an informed decision. Interviewing a client and completing an eligibility assessment can be one way of achieving this. This process often forms a significant part of an initial consultation. However, obtaining informed instructions will be relevant at any time an adviser needs to take action on behalf of their client.
Once an adviser has obtained informed instructions from their client their next obligation is to carry them out.
If the client instructs an adviser to take any action that is not lawful, the adviser should discuss this with the client and try to offer some alternative options which are lawful. However, there may be cases where the client does not want to try another option, or where the client is simply not eligible for any type of New Zealand visa. In these circumstances the adviser cannot act for the client and may wish to use a non-engagement letter to confirm this. For more information see the Authority’s guidance on Initial consultations and Termination of services below.
An adviser is expected to carry out all lawful and reasonable instructions of the client. However, no adviser can do something unprofessional or unlawful and claim immunity. The Code and both criminal and immigration law apply regardless of a client’s instructions to the adviser.
What has changed compared to the 2010 Code
2010 Code – required advisers to carry out the lawful informed instructions of clients
2014 Code – requires advisers to obtain and carry out the informed lawful instructions of the client.
Here are some decisions from the Immigration Advisers Complaints and Disciplinary Tribunal that refer to the importance of informed lawful instructions:
J v Khetarpal
Penalty Decision:  NZIACDT 7 (22 January 2016)
Matheis v Ling
Carley (INZ) v Kim
Penalty Decision:  NZIACDT 107 (22 December 2015) (PDF, 183KB)
IAA v van Zyl
Decision:  NZIACDT 37 (31 July 2012) (PDF, 156 KB)
Penalty Decision:  NZIACDT 59 (11 September 2012) (PDF, 77 KB)
Chen v Loh
Decision:  NZIACDT 15 (19 March 2013) (PDF, 217 KB)
Penalty Decision:  NZIACDT 55 (30 August 2013) (PDF, 151 KB)
Information about the Treaty of Waitangi and tikanga (Māori customs and traditions)
A licensed immigration adviser must:
- when requested, assist the client to access information about the Treaty of Waitangi and tikanga (Māori customs and traditions)
Clause 2(f) sets out the requirement that advisers need to assist their clients to access information about the Treaty of Waitangi and Māori customs and traditions to clients when they ask for it.
There are a number of sources of information available to assist advisers to meet their professional practice obligations in this regard.
The Authority has collated a selection of resources for advisers to use in a section entitled The Treaty and Māori culture on its website.