A licensed immigration adviser must:
- preserve the confidentiality of the client except in the following circumstances:
- with the client’s written consent, or
- if making a complaint to the Immigration Advisers Authority relating to another adviser or reporting an alleged offence under the Immigration Advisers Licensing Act 2007, or
- for the administration of the Immigration Advisers Licensing Act 2007, or
- as required by law
Confidentiality lies at the heart of the relationship of trust between a client and their adviser. It is essential from an ethical and legal perspective, because it provides the basis on which a client can feel safe in divulging all of the necessary information to their adviser. This allows the adviser to do their job and provide full and complete immigration advice and assistance.
Clause 4(a) states that an adviser must preserve the confidentiality of the client except in the circumstances outlined in sub-clauses (i) to (iv).
All information that comes into the adviser’s possession by reason of his or her acting for the client, including any personal information about the client or their affairs, belongs to the client and cannot be used by the adviser for his or her own purposes unless provided for in clause 4(a)(ii – iv). A prudent and ethical adviser would start from an assumption that everything that a client tells them is confidential, unless the client has clearly indicated otherwise.
Clause 4(a)(i) relates to having the client’s consent to disclose the confidential information. If an adviser has informed the client of the reason they need to divulge the information and the client has provided their informed consent then it is acceptable to share the confidential information for the reasons agreed with the client.
In situations where an adviser is acting on behalf of a client they will disclose confidential information to Immigration New Zealand on the client’s behalf. The client should be fully informed of this.
Advisers should be careful to maintain client confidentiality even between clients who are involved in the same immigration application. A client’s information should only be shared with their permission, and advisers should carefully consider what may be disclosed between clients. Bear in mind that, under clause 7(b), if disclosing a conflict of interest to a new client would breach the confidentiality of an existing client, an adviser may not act for the new client.
Under clause 4(a)(ii), to make a complaint or report an alleged offence to the Authority an adviser does not need to have the client’s consent. However, the Code does not place any onus on an adviser to make a complaint or report an offence. If the adviser would not feel comfortable making a complaint without the client’s consent there is no requirement for them to do so. One option may be to discuss the matter with the client and advise them that making a complaint or reporting an offence will benefit others who may have had the same experience, with the aim that the client will consent to the adviser to assist them with making the complaint or reporting the offence.
If an adviser believes that they are under a statutory duty under clause 4(a)(iii) or (iv) to disclose confidential client information for the administration of the Immigration Advisers Licensing Act 2007 or as required by any other law, then he or she should inform the client promptly of this. The adviser should also inform the client if there is any opportunity available to challenge the disclosure using legal processes.
The adviser must comply with a statutory obligation to disclose client information regardless of the client’s views.
An example of a law that may require the disclosure of information could be the obligation under section 58 of the Immigration Act 2009 to inform the Minister of Immigration or Immigration Officer of any relevant facts, including any material change in circumstances that occur after the application is made. This obligation would continue as long as the adviser was acting on behalf of the client. As mentioned above the adviser should discuss any obligation with their client before taking any action.
Advisers may wish to take legal advice where they believe they are required by law to disclose otherwise confidential information.
Advisers should consider the Information Privacy Principles set out in the Privacy Act 1993 when reflecting on the duty of confidentiality.
A licensed immigration adviser must:
- require that any employees or other persons engaged by the adviser also preserve the confidentiality of the client
Under clause 4(b) advisers must require any staff they employ or engage (such as contractors, translators or volunteers) to preserve the confidentiality of their clients.
The duty to ‘require’ staff and contractors to preserve the confidentiality of clients means that the adviser must make sure those staff and contractors are clearly advised of this obligation.
Advisers may wish to include a confidentiality provision in each signed employment agreement or contract that specifies that the employee or contractor will not at any time during the employment or contract period or afterwards disclose any personal or confidential information or details about any client of the adviser, unless expressly authorised to do so by the adviser or the client.
This would avoid any possibility of misunderstanding and act as a strong deterrent to an employee or contractor who comes into possession of confidential client information. It would also provide proof that the adviser has met the requirements of clause 4(b).
Here are some decisions from the Immigration Advisers Complaints and Disciplinary Tribunal that refer to confidentiality:
S v Xue
Penalty Decision:  NZIACDT 58 (15 May 2015) (PDF, 188KB)
Lim v Gu-Chang
Penalty Decision:  NZIACDT 3 (26 January 2015) (PDF, 166KB)
Musese v Min
Penalty Decision:  NZIACDT 60 (18 September 2013)(PDF, 96.7 KB)