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Misrepresentation

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Clause 31(a):

A licensed immigration adviser must:

  1. not deliberately or negligently provide false or misleading documentation to, or deliberately or negligently conceal relevant information from, the decision maker in regard to any immigration matter they are representing

Clause 31(a) relates to providing false or misleading documentation to or concealing relevant information from any decision maker in regard to an immigration matter. That could be Immigration New Zealand, the Immigration and Protection Tribunal or the Minister or Associate Minister of Immigration.

The clause should not apply to advisers who genuinely believe the information they are providing is correct, even if it is found to be false by the decision-maker.

The clause covers any adviser behaving in this manner deliberately (which would be in breach not only of the Code but also of New Zealand law) or negligently.

A person behaves negligently when they are not doing what a reasonable person would do in a situation where that person owes a duty of care. An adviser who is not acting with due care can be said to be acting negligently.

If false documentation is provided or relevant information is concealed through the adviser failing to act with due care, then this clause may have been breached.

Clause 31(b):

A licensed immigration adviser must:

  1. if they become aware that false or misleading documentation has been provided to, or that relevant information has been concealed from, the decision maker in regard to any immigration matter they are representing:
    1. inform the client about the potential consequences of continuing to misrepresent themselves to the decision maker
    2. discuss with the client the ways the misrepresentation or concealment could be remedied, and
    3. should the client not consent to take action to remedy the situation, terminate their services to the client in writing.

If  an adviser becomes aware that there has been misrepresentation or concealment associated with an immigration matter they are representing, whether or not the client has acted intentionally, the steps at clause 31(b) must be followed.

The first step is to discuss the misrepresentation or concealment with the client and explain what will happen if nothing is done to remedy the situation. The consequences may include:

The second step is to talk to the client about how the situation can be remedied. This may include:

Finally, if the client refuses to take steps with the adviser to remedy the situation, the adviser would need to terminate their services to the client in writing. Failure to do this would mean the adviser would be in breach of clause 31(a) because they would then be party to deliberately concealing information or providing false documentation.

What has changed compared to the 2010 Code?

2010 Code – required that advisers did not knowingly provide false or misleading documentation with any application, appeal, request, claim or other representation, or conceal relevant information relating to any application, appeal, request, claim or other representation

2014 Code – requires that advisers must:

  1. not deliberately or negligently provide false or misleading documentation to, or deliberately or negligently conceal relevant information from, the decision maker in regard to any immigration matter they are representing, and
  2. if they become aware that false or misleading documentation has been provided to, or that relevant information has been concealed from, the decision maker in regard to any immigration matter they are representing:
    1. inform the client about the potential consequences of continuing to misrepresent themselves to the decision maker
    2. discuss with the client the ways the misrepresentation or concealment could be remedied, and
    3. should the client not consent to take action to remedy the situation, terminate their services to the client in writing.