April 2021 Newsletter
Message from the Registrar
Kia ora
Over the last 12 months we have seen many changes within the immigration advice industry due to travel restrictions and border closures. As I am writing this, the Trans-Tasman bubble has opened, allowing for quarantine free travel between our border and Australia.
Later this month will see the commencement of the Visa applicant survey for 2020/21. The Immigration Advisers Authority has surveyed clients who have used a licensed immigration adviser since 2008/2009. The survey is undertaken to understand the experience visa applicants have when receiving immigration advice from licensed immigration advisers. Please encourage your clients to provide their valuable feedback, should they contact you with any queries.
I am pleased to share that we have confirmed details for our next webinar. We have had a fair bit of interest in this upcoming work and we look forward to the opportunity to share information with you and answer any questions you may have for us.
The first webinar for this year will take place on Tuesday 1 June 2021, and will focus on the topic of Supervision. We understand that this subject is an area of interest to the industry. Please make sure to check our website regularly for updates; a registration link will be made available online soon.
This year, the Authority has received a number of enquiries asking whether Clause 26 of the Code is compatible with the Privacy Act 2020. To help answer these queries we have included further guidance below, however, as always we do recommend that advisers seek independent legal advice regarding their practice.
The Licensing team has continued to work through a variety of applications, including reviewing client files as part of assessing renewal applications under the inspection stream. During this work, we continue to see some common mistakes, particularly in relation to the practice of conducting initial consultations, maintaining client eligibility assessment records, and managing client funds, where fees and/or disbursements are received by advisers in advance of services provided.
We have provided some further guidance, below, to help ensure you are meeting your obligations when you next renew your licence. I encourage you to review this information alongside the Code of Conduct toolkit, available as an online resource.
Keep well and keep our standards high.
Duncan Connor
Registrar of Immigration Advisers
2021 Licensed Immigration Advisers Reference Group
The first Reference Group meeting for this year is scheduled to take place on 4 May 2021. Minutes of the meeting will be published on our website.
Visa applicant survey to begin late April
The first part of the 2020/2021 financial year survey of visa applicants who have used a licensed immigration adviser will be conducted from 26 April 2021 to 23 May 2021. This survey has been conducted since the 2008/2009 financial year. The survey is undertaken to understand the experience visa applicants have when receiving immigration advice from licensed immigration advisers.
Read the results for the 2018/2019 survey
The 2021 survey is managed by Gravitas OPG (an independent research company) on behalf of the Immigration Advisers Authority. If you are contacted by a client about the survey please reassure them that the survey is genuine and that their participation would be greatly appreciated.
The survey is undertaken using an online methodology. A random sample of applicants who have received a decision on their application and recorded by Immigration New Zealand as having used a licensed adviser (and with a personal email addresses on record) are invited to participate. The questionnaire is provided in English and Simplified Chinese.
If you have any further questions about the survey, you may contact MBIEresearch.survey@mbie.govt.nz.
GDNZIA industry placements – information from Toi Ohomai
If you have an employee that you would like to become licensed, they will need to complete the Graduate Diploma in NZ Immigration Advice (GDNZIA). Each semester, Toi Ohomai reserves 25 places on the GDNZIA for people currently working in the industry.
If you would like to reserve a place for a staff member for semester two 2021 commencing on 12 July 2021, please email Appley Boyd (appley.boyd@toiohomai.ac.nz) with their details.
Please note, the Academic and English language entry criteria for the programme still need to be met.
Review the entry criteria and apply on the Toi Ohomai website(external link)
Webinars
As part of mandatory continuing professional development, all licensed immigration advisers must attend at least one webinar delivered by the Authority during their annual licensing period.
We are pleased to announce that the first webinar for this year will take place on 1 June 2021 at 3.00- 4.00pm (NZST).
The webinar will be held live and will focus on the issue of Supervision. There will be a question-and-answer session during the second half of the webinar. You are also welcome to send your questions to us in advance.
Please send your questions to info@iaa.govt.nz with the subject line “Supervision webinar questions”.
We are also keen to hear what topics you would like to see in future webinars. Please send any feedback or ideas to info@iaa.govt.nz with the subject line “Feedback-Webinar”.
INZ Resources available for advisers
Stay up-to-date with the latest developments in immigration and hear about policy changes and online webinars.
You can sign up here to receive updates from Immigration New Zealand (INZ)(external link)
The webinars and resources provided by INZ are not affiliated with the Authority.
Privacy Act 2020 and Clause 26 of the Code of Conduct 2014
We have received a number of queries asking whether Clause 26 of the Code is compatible with the Privacy Act 2020. In this regard, we would like to draw your attention to the following:
Information Privacy Principle 9 (IPP 9) states: An agency that holds personal information must not keep that information for longer than is required for the purposes for which the information may lawfully be used.
Section 24 clarifies the relationship between IPPs and other New Zealand law. In relation to IPP 9 it says:
(2) An action taken by an agency does not breach IPPs 1 to 5, 7 to 10, or 13 if the action is authorised or required by or under New Zealand law.
Section 24 therefore provides that IPP 9 is not breached if the “agency” holding the information, being the licensed immigration adviser (LIA), is authorised or required by or under NZ law to keep the information. The Code of Conduct is a type of legislative instrument that has been lawfully developed, approved and signed by the Minister of Immigration, pursuant to section 37 of the Act. As a legislative instrument/secondary legislation, clause 26(e) explicitly requires an LIA to “maintain each client file for a period of no less than 7 years from closing the file”.
The “agency” holding the personal information pursuant to clause 26 (e) of the Code of Conduct is an LIA, not the Registrar (except for periods when the Registrar has used their lawful section 57 inspection powers under the Act and also holds the information). Even if section 30 authorisation was required, it would be the agency who holds the information (ie. the LIA) who would seek the authorisation.
Even after a client file is closed, there continues to be a lawful use for the personal information (ie. client files) being held, which is for the Registrar’s administration of the immigration advisers licensing regime.
The Privacy Act is a new piece of legislation, therefore the Authority recommends that it would be prudent for all advisers to ensure that their current practices are in line with the new Act by consulting appropriate professionals i.e. lawyers. For any further assistance, the Privacy Commissioner will be the best agency to contact.
Licensing matters
The Licensing team continues to work hard assessing various licence applications, including client file inspections for those renewing under the inspection stream.
Over a period of time, we have observed a number of common mistakes, which indicates to us that some aspects of Competency Standard 4: Preparing, lodging and administering immigration applications, appeals, requests, claims and other representation are not clearly understood. Specifically, initial consultations and eligibility assessments.
Another area in which we see common mistakes when undertaking assessments of client files, fall under Competency Standard 6: Conducting business professionally, ethically and responsibly. In particular, dealing with client funds.
Therefore, we have included some of our observations, and where necessary, clarifications in relation to the Code of Conduct 2014 (the Code) below.
Initial Consultations (clause 16 of the Code)
If you intend to charge initial consultation fees, you are required to take certain steps before the initial consultation with your client takes place. In particular, the Code requires advisers to ensure that they obtain the client’s written consent to the payment terms and conditions relating to that initial consultation fee.
When considering the terms and conditions attached to initial consultation fees, you should also consider whether you would like consultation fees to be paid prior to or after the initial consultation. If you require the consultation fees to be paid up front, you will need to ensure that client funds are deposited into the client account at the outset and handled in the manner required by the Code (refer to clause 25 in the Code of Conduct Toolkit for further guidance).
All advisers are required to comply with all aspects of the Code, except for clauses 17 and 18, when conducting initial consults.
This includes maintaining a client file for each client to whom you have provided immigration advice, including those who decide not to proceed with your services. We would expect to see a record of your initial consultation and written confirmations of those discussions with your client contained within the client file. These may be inspected by the Authority.
Eligibility Assessments (clause 26 of the Code)
Advisers must ensure that they are retaining a record of any and all eligibility assessments conducted for their clients.
In the context of your client’s immigration matter, the eligibility assessment advice is considered to be a material discussion. Therefore, advisers must ensure that there is a written record of that advice (clause 26(a)(iii)) and that clients receive written confirmation of such advice (Clause 26 (c) of the Code). This avoids any misunderstanding between an adviser and the client regarding information provided by either party.
The eligibility assessment record should include, but is not limited to: the applicable instructions at the time; the various options considered; and any potential barriers and/or risks associated with your client’s particular immigration matter. This ensures that you have a record of the applicable immigration policy at the time of your assessment.
There are several ways in which you can confirm your eligibility assessment advice in writing to your client(s). One way is via a client engagement letter.
Your client engagement letters should include:
- A brief background of the client’s situation as to how you understand it,
- The option(s) available in accordance with the applicable policy,
- Confirmation of any instructions you have received,
- The barriers and/or risks associated with the immigration matter (if applicable),and
- Any other matters relevant to their situation.
Client funds (Clause 25 of the Code)
As detailed in our Licensing Toolkit, if an adviser receives client funds in advance, they are required to provide evidence of handling client funds in accordance with the Code.
If at any time during your licence period, you have required clients to pay funds in advance, whether relating to professional fees or disbursements such as INZ application fees you must declare this in your application to the Authority. You will be required to provide a copy of your client account bank statement and any related client ledgers for the three months preceding your application.
It must be clear from the client account statement that this is an account for holding client funds. An easy way of doing this is to name the account: ‘Client funds account’. All funds held in this account belong to your client(s). It must not be used for improper purposes. Client funds may only be withdrawn into an adviser’s practice account when they are due and payable and for which an invoice has been issued to the client for services provided. The Code of Conduct toolkit includes a flow chart providing guidance on managing client funds received in advance.
In addition to the client account statement, you must provide individual client ledgers with your application. The ledgers should correspond with the transactions contained within the bank statement. Guidance on what information we expect to see in an individual client ledger is explained in detail in our Code of Conduct Toolkit.
Ordinarily, we would not request adviser’s to provide copies of all invoices relating to the transactions contained within the client account statement or ledgers, although the Authority may specifically require those to be provided under section 57 of the Act.
Resources
Change to IAA Licence Mailout & Resource Order/Availability
As announced in our December 2020 newsletter, there has been a change to the contents of the licence identification packs, which we send to advisers. Specifically, as of February 2021, the pack no longer includes printed copies of the Immigration Advisers Competency Standards 2016, Licensed Immigration Advisers Code of Conduct 2014, and “Professional Standards” leaflet pads.
All of these resources are available in a PDF format
The “Professional Standards” pads are available to download in English, Korean, Samoan, Tongan, Simplified Chinese and Traditional Chinese. The identification pack now includes only a Certificate, an Identification (ID) card, and a letter confirming that a licence has been granted.
However, we do still have limited stock of "Professional Standards" pads in English. Each adviser can request up to two pads (there are 100 “Professional Standards leaflets” per pad). These can be collected from our office, for free. If you would like them to be sent to you, courier charges may apply. Any fees will be advised upon request.
If you would like to obtain printed copies of those pads while stocks are still available, please send your request to info@iaa.govt.nz.
Tribunal decisions
The Immigration Advisers Complaints & Disciplinary Tribunal has recently released a decision, which found the Adviser was misleading and had breached clauses 1 and 2(e) of the Code of Conduct 2014.
In IMH v Marica [2021] NZIACDT 2, the Tribunal found that the Adviser had deliberately concealed from the complainant an error in the immigration consultancy’s record related to their visa expiry date. Furthermore, the Adviser had failed to conduct herself with due care and in a timely manner. This was because she had failed to recognise that the visa expiry date on record was incorrect and failed to file the visa renewal application on time. In addition, the Adviser had not advised the Complainant that they had become unlawful as a result, nor what the consequences of their unlawful status would be. The Adviser also failed to obtain the Complainant’s informed instructions to lodge the section 61 request.
The Adviser was censured; directed to enrol and complete Toi-Ohomai’s LAWS 7015 paper at its next available intake; and ordered to immediately pay to the Registrar the sum of $1,500.
New decisions are appearing regularly and I encourage you to save the following link as a bookmark.
Read recent Tribunal decisions on the Justice website(external link)
