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Professional practice

File management

Clause 26(a):

A licensed immigration adviser must:

  1. maintain a hard copy and/or electronic file for each client, which must include:
    1. a full copy of the client’s application or other immigration matter
    2. copies of all written agreements and any changes to them
    3. copies of all written communications (including any file notes recording material oral communications and any electronic communications) between the adviser, the client and any other person or organisation
    4. copies of all invoices and receipts relating to the client
    5. copies of all personal documents relating to the client supplied to the adviser, and
    6. evidence of the safe return of the client’s original documents

One of the most valuable risk management tools that an adviser can use when dealing with clients is to proactively manage client files. A well-managed file is like a ‘useable trail’ of actions, which will benefit the adviser as well as the client.

It is helpful if all aspects of the adviser’s relationship with a client and his or her affairs are recorded clearly and chronologically.

A file for each client

Having taken instructions to proceed with an immigration matter, an adviser needs to open a unique client file and place all documentation in that file. The file can either be in hard copy or electronic – or both.

A copy of each client’s application or other immigration matter

The word ‘application’ in this context includes:

In respect of an ‘appeal’, ‘request’, ‘claim’ or ‘other representation’ any other relevant form(s), supporting documentation and covering letter submitted to Immigration New Zealand or the Immigration and Protection Tribunal should similarly be kept.

Copies of any legislation or instructions that are relevant to the client’s immigration matter

Although it is not required, as immigration instructions can change, it may be useful to place on the client’s file a copy of the relevant legislation or instructions that applied to their particular immigration matter at that time.

A copy of all written agreements

Copies of all signed/agreed written agreements relating to the client (or clients) on the file must be kept.

If any changes are made to the written agreement during the relationship with the client, a copy of the amended agreement must be kept, together with evidence that all parties have accepted the changes in writing. If the adviser has obtained the client’s agreement to any changes in writing via email or letter, a copy should be attached to the client’s file.

Copies of written communications

During the progress of an immigration matter, written communications may occur between the adviser and the client, Immigration New Zealand, or another relevant statutory authority, which must be kept on the client’s file. It is also important to keep file notes that record material oral communications.

It is important that advisers maintain a written record of their eligibility assessment and any other advice for each client. 

Copies of invoices and receipts

Advisers must keep on the client file copies of:

Copies of client’s personal documents

The adviser must make sure that they take a copy of any personal documents submitted as supporting documentation in regard to an immigration matter to retain on their client file.

Evidence of safe return of original documents

Clause 27(b), discussed below, requires passports and other personal documents to be returned to the client without delay and in a secure manner. Evidence that this has occurred must be kept on the client’s file. This could take the form of, for example:

Confirmations in writing

Clause 26(b) and (c):

A licensed immigration adviser must:

  1. confirm in writing to the client when applications have been lodged, and make on-going timely updates
  2. confirm in writing to the client the details of all material discussions with the client

When an adviser lodges an application they must confirm this in writing to their client.

The adviser must also make on-going timely updates to their client in regard to their immigration matter.

It may be helpful to agree with the client in the written agreement when these updates will occur, for example, monthly or only when an action is taken on the immigration matter.

Whenever a material discussion takes place with the client, the adviser must confirm the details of the discussion to their client in writing. This reduces the risk of misunderstanding between the client and the adviser and gives the client an opportunity to question or correct any aspect of the discussion.

Written confirmations and updates should be kept on the client’s file.

Here are decisions from the Immigration Advisers Complaints and Disciplinary Tribunal that refers to the importance of confirming in writing when applications have been lodged, timely updates and confirming in writing material discussions:

Adams v Aucamp

Decision: [2015] NZIACDT 94 (22 October 2015) (PDF, 150KB)

AQ v Mudaliar

Decision: [2015] NZIACDT 76 (23 June 2015) (PDF, 192KB)

Penalty Decision: [2015] NZIACDT 93 (16 October 2015) (PDF, 132KB)

Muller v Yerman

Decision:[2015] NZIACDT 77 (25 June 2015) (PDF, 205KB)

Penalty Decision:[2015] NZIACDT 102 (11 December 2015) (PDF, 119KB)

Carley (INZ) v Kim

Decision: [2015] NZIACDT 47 (7 May 2015) (PDF, 144KB)

Penalty Decision: [2015] NZIACDT 107 (22 December 2015) (PDF, 183KB)

Senadipathi & Xavier v Sampang

Decision: [2015] NZIACDT 43 (20 April 2015) (PDF, 98KB)

Penalty Decision: [2015] NZIACDT 110 (23 December 2015) (PDF, 123KB)

N v Letalu

Decision: [2015] NZIACDT 41 (16 April 2015) (PDF, 142KB)

Penalty Decision: [2015] NZIACDT 109 (22 December 2015) (PDF, 160KB)

 

A well-managed filing system

Clauses 26(d):

A licensed immigration adviser must:

  1. maintain a well-managed filing system

Advisers can choose the method that they use to file client records. The primary considerations in respect of any filing system should be:

What has changed compared to the 2010 Code?

2010 Code – required advisers to maintain professional business practices relating to finances, records, documents, contracts and staff management

2014 Code – requires advisers to maintain a file for each client, including the minimum requirements to be kept on that file, and to maintain a well-managed filing system.

Maintain files for no less than 7 years

Clause 26(e):

A licensed immigration adviser must:

  1. maintain each client file for a period of no less than 7 years from closing the file, and make those records available for inspection on request by the Immigration Advisers Authority

The adviser must ensure that each client file is maintained for at least 7 years, and that the file is accessible.

Advisers also need to remember their obligations to IRD in New Zealand or their obligations to any overseas equivalent department. In New Zealand, for example, the IRD requires that all financial records are kept for a period of at least 7 years.

For more information on how to keep your financial records in order see the business.govt.nz website.

What has changed compared to the 2010 Code?

2010 Code – required advisers to maintain complete client records that tracked all transactions for a period of seven years and to make those records available for inspection on request by the Authority

2014 Code – requires advisers to maintain each client file for a period of no less than 7 years from closing the file, and make those records available for inspection on request by the Immigration Advisers Authority.

Release of client files

Clause 26(f):

A licensed immigration adviser must:

  1. when requested by the client or their new licensed or exempt immigration adviser, release a copy of all applications lodged on behalf of the client and all correspondence relating to the client

In the event that the client terminates the contract with their adviser part way through performance of the services, the client, or their new adviser if they have engaged one, may request a copy of the client’s file.

Any lodged applications and any correspondence relating to the client must be released to the client or their representative.

An adviser must also consider their obligations to release personal information under the Privacy Act 1993.

There is no requirement in the Code for an adviser to release this information without charge. However, if charging for providing a copy of a file, the adviser also needs to ensure they are complying with clauses 21 a, b and c, relating to disbursements.

If not previously agreed to with the client, the adviser would need to discuss the options and estimates with the client and ensure these are recorded and agreed to in writing.

Adviser may consider the Privacy Commissioner’s guidelines on charging for access to personal information.

Here are some decisions from the Immigration Advisers Complaints and Disciplinary Tribunal that refer to the importance of file management and good record keeping:

Muneez v Deng

Decision: [2013] NZIACDT 33 (27 May 2013) (PDF, 108 KB)

Penalty Decision: [2013] NZIACDT 53 (20 August 2013) (PDF, 65.4 KB)

TX v MGK

Decision: [2013] NZIACDT 14 (19 March 2013) (PDF, 96.1 KB)

TSO v Hassan

Decision: [2013] NZIACDT 52 (16 August 2013) (PDF, 125 KB)

Penalty Decision: [2013] NZIACDT 62 (18 September 2013) (PDF, 68.9 KB)

What has changed compared to the 2010 Code?

2010 Code – did not include specific requirements around the provision of client files to clients or their representatives, except that personal documents had to be returned on request

2014 Code – requires that advisers, when requested by the client or their new licensed or exempt immigration adviser, release a copy of all applications lodged on behalf of the client and all correspondence relating to the client.