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Professional practice

Content of written agreements

Clause 19 sets out the minimum requirements for the content of a written agreement with the client.

What has changed compared to the 2010 Code?

2010 Code – required that agreements contained a full description of the services and there were other clauses that indicated that things needed to be included in the agreement but this was not clear

2014 Code – clearly sets out the minimum requirements for the contents of a written agreement with the client(s).

Adviser name(s) and number(s)

Clause 19(a):

A licensed immigration adviser must ensure that a written agreement contains:

  1. the name and licence number of any adviser who may provide immigration advice to the client

It is the responsibility of the adviser to ensure that their name and licence number appear on any written agreement with a client. This helps to ensure that the client is clear about who will provide them with the advice, especially where the agreement is with a company or where there may be more than one adviser acting for the client. The adviser is always personally liable for any immigration advice they give.

Written authority

Clause 19(b):

A licensed immigration adviser must ensure that a written agreement contains:

  1. where an adviser is representing the client, written authority from the client for the adviser to act on the client’s behalf

An adviser may only represent their client, be that to Immigration New Zealand, the Immigration and Protection Tribunal, or any other party, if they have the client’s written authority to do so. This authority is not required where advisers are engaged purely to provide the client with advice and will not be engaged to represent the client.

Here is a decision from the Immigration Advisers Complaints and Disciplinary Tribunal that refers to the importance of written authority to act:

Musese v Min

Decision: [2013] NZIACDT 24 (4 April 2013) (PDF, 119 KB)

Penalty Decision: [2013] NZIACDT 60 (18 September 2013)(PDF, 96.7 KB)

Provisional licence limitations

Clause 19(c):

A licensed immigration adviser must ensure that a written agreement contains:

  1. if the adviser holds a provisional licence:
    1. a record that a provisional licence requires them to work under the direct supervision of a full licence holder, and that they must seek advice from the supervisor whenever necessary
    2. the name and licence number of their supervisor, and
    3. a record that they will disclose the client’s personal information to their supervisor who is obliged to keep that information confidential

Clause 8(c) requires provisional licence holders to explain to their client that a provisional licence allows a person to provide immigration advice in all immigration matters while working under the direct supervision of an immigration adviser with a full licence. Clause 19(c) requires this to be confirmed in the written agreement along with the supervisor’s name and licence number. Clause 19(c) ensures that clients know the supervisor will be made aware of their personal information and that the supervisor is obliged to keep it confidential. Clause 12(d) specifically requires supervisors to preserve the confidentiality of their provisional licence holder’s clients.

Limited licence limitations

Clause 19(d):

A licensed immigration adviser must ensure that a written agreement contains:

  1. if the adviser holds a limited licence, a record of what specified matters their limited licence authorises them to provide immigration advice in relation to, and that they may provide advice only in those areas

Clause 8(b) requires limited licence holders to explain to their clients that a limited licence allows a person to provide immigration advice in relation to specified immigration matters and that thay may only provide advice in those areas. Clause 19(d) requires this to be confirmed in the written agreement along with a record of which particular areas the adviser is licensed to provide advice in.

Full description of services

Clause 19(e):

A licensed immigration adviser must ensure that a written agreement contains:

  1. a full description of the services to be provided by the adviser, which must be tailored to the individual client

To avoid any misunderstanding between the adviser and the client, it is important for an adviser to clearly set out what services they will be providing. The description of the services should be applicable to the individual client and their needs.

Some clients have unreasonable expectations of advisers, or misunderstand what the adviser is actually able to do. If a complaint is made by a client alleging that the adviser did not do what was promised, and the agreement clearly set out the scope of the work, it will be much easier to deal with the complaint internally and prevent it escalating.

The courts have long held that, where there is a difference in understanding between a professional person and his or her client about the terms of a written agreement, the word of the client is to be preferred to that of the professional. This reflects their inequality of expertise and the opportunity that the professional person has to avoid a misunderstanding by setting out in writing the extent of the services that he or she is to provide.

Fees to be charged

Clause 19(f):

A licensed immigration adviser must ensure that a written agreement contains:

  1. where fees are to be charged, the fees for the services to be provided by the adviser, including either the hourly rate and the estimate of the time it will take to perform the services, or the fixed fee for the services, and any New Zealand Goods and Services Tax (GST) or overseas tax or levy to be charged

Advisers must provide a tailored and accurate description of any fees to be charged to the client. An adviser may choose to set a fixed fee for their service or to provide an hourly rate and an estimate of the time the services will take to provide.

See Fair and reasonable fees for more information.

Advisers may also wish to note how extra costs will be charged for, including that written agreement to these will be obtained from the client in accordance with clause 20(c).

GST or overseas tax or levy

Advisers should contact the Inland Revenue Department (IRD) directly at www.ird.govt.nz, or an accountant, if they are unclear about GST requirements.

When listing fees and/or disbursements remember to include the currency that they are quoted in.

Here is a decision from the Immigration Advisers Complaints and Disciplinary Tribunal that refers to the importance of having fees in writing:

Juan v Ramos

Decision: [2015] NZIACDT 48 (7 May 2015) (PDF, 133KB)

Penalty Decision: [2016] NZIACDT 3 (14 January 2016) (PDF, 129 KB)

Disbursements to be charged

Clause 19(g) and (h):

A licensed immigration adviser must ensure that a written agreement contains:

  1. the likely disbursements that will be incurred (including any Immigration New Zealand fees), including the amount, if known, or a reasonable estimate; and
  2. where disbursements will be incurred, whether the disbursements will be paid directly by the client or by the adviser on the client’s behalf

The written agreement must include any known or likely disbursements that the client will be responsible for.  Disbursements are supplementary costs which may include, among other things, Immigration New Zealand application fees, costs of obtaining medical certificates, costs of obtaining police certificates, courier costs, translation costs and interpreter costs.

Clause 19(g) recognises that an adviser may not always know all the disbursements that will be incurred at the beginning of their relationship with the client. However, the likely disbursements including the amounts, if known, or a reasonable estimate, need to be set out in the written agreement.

In circumstances where a disbursement is known at the time of the written agreement, but the adviser knows that it can be subject to change with little notice (such as Immigration New Zealand fees) it may be acceptable to set out the disbursement as follows, or in some similar fashion:

INZ Fee for Student Visa (lodged in NZ) NZ$250
(correct at 21 October 2013 – please note may be subject to change prior to lodgement)

Clause 19(h) requires the adviser to set out clearly in the written agreement who will be responsible for paying the disbursements. There are generally three ways disbursements can be paid for:

Payment terms and conditions

Clause 19(i):

A licensed immigration adviser must ensure that a written agreement contains:

  1. where fees and/or disbursements are to be charged, the payment terms and conditions for any fees and/or disbursements

Payment terms and conditions should set out any advance payments required and all payment milestones, including the actual payable milestone for any payment received in advance.

Advisers should carefully consider what payment milestones will work for them. Fees may be paid either on completion of all of the services or in milestones.

Interest and refunds

Clause 19(j) - (k):

A licensed immigration adviser must ensure that a written agreement contains:

  1. where fees and/or disbursements are to be charged, what interest on unpaid accounts will be charged, if any
  2. where fees and/or disbursements are to be charged, the adviser’s refund policy

Interest on unpaid accounts

The written agreement must specifically provide for any situation where the adviser wishes to charge interest on overdue accounts.

Refund policy

The written agreement must specifically set out the adviser’s refund policy. The refund policy should be clear and simple and in line with the Code. For example:

“Refunds will be assessed on the basis of what is fair and reasonable in the circumstances. Where a refund is due it will be paid within 20 working days of termination or completion of services.”

Advisers should take clause 24 on refunds into account when drafting their refund policy. Advisers are not able to contract out of the clause 24 requirements.

Conflicts of interest

Clause 19(l):

A licensed immigration adviser must ensure that a written agreement contains:

  1. if applicable, a record of any potential or actual conflict of interest relating to the client, including the existence of any financial or non-financial benefit the adviser will receive as a result of the relationship with the client

Clause 5 requires the adviser to inform the client in writing of any conflict of interest and clause 6 prohibits the adviser from representing a client following this disclosure unless the client has given their written consent.

It is sufficient for the required disclosure and consent to be expressed in the written agreement. However, if the disclosure and consent have already occurred through letters or emails, a record of the conflict of interest must still be recorded in the written agreement.

This requirement is on-going, so if the conflict does not arise until sometime into the adviser-client relationship, the disclosure must be made in writing at that time and all parties would need to confirm in writing that they accept the change, as per clause 18(c).

Under clause 7, should a conflict mean that the adviser’s objectivity or the relationship of confidence and trust between the adviser and client would be compromised, or that the confidentiality of a client would be breached, the adviser must not continue to represent the client.

Advisers may seek legal advice if they are ever uncertain about what to do about a conflict of interest.

Documents provided to client

Clause 19(m) and (n):

A licensed immigration adviser must ensure that a written agreement contains:

  1. a record that a copy of the summary of licensed immigration advisers’ professional responsibilities has been provided and explained to the client, and
  2. a record that a copy of the adviser’s internal complaints procedure has been provided to the client.

The written agreement must include an acknowledgement that the client has received both the summary of licensed immigration advisers’ professional responsibilities and the adviser’s internal complaints procedure, and that the summary of licensed immigration advisers’ professional responsibilities has been explained to the client. This records that the adviser’s obligations under clause 17 have been met.