December 2021 Newsletter
Message from Registrar
Kia ora koutou
This year has been challenging and busy across all sectors. I personally am looking forward to spending quality time with my whānau and friends during the holiday break.
This will be the final newsletter for the year. Please keep in mind that the Authority will be closed for a number of days over Christmas and New Year’s Day. More information about the shut-down period is below.
As you will likely know, traffic light settings are now in place for all of Aotearoa, New Zealand. To find the traffic light setting in your region, and for more information about vaccine passes, check out the Government’s COVID-19 website.
COVID-19.govt.nz(external link)
I wish everyone a safe and enjoyable holiday period, and as always, let’s keep our standards high.
Duncan Connor
Registrar of Immigration Advisers
Authority closure dates
The last day of business for the Authority this year will be Friday 24 December 2021 and it will reopen on Wednesday 5 January 2022.
The statutory shut-down period, per section 5 of the Act, is from 25 December 2021 until 15 January 2022. Any online or paper-based applications submitted during this time will be treated as being received on Monday 17 January 2022. This does not affect online fast track renewal applications.
Please refer to your renewal notice to confirm your current licence expiry date. To avoid your licence being recorded as expired on the public register, please ensure that you submit your renewal applications on time.
Update from Toi Ohomai
Graduate Diploma in New Zealand Immigration Advice Industry Partnership Group
The GDNZIA industry partnership group is made up of GDNZIA programme staff, a representative from the Authority, a representative from Immigration New Zealand (INZ) and those working in the immigration advice industry. The group provides a forum for industry feedback and discussion of issues relating to graduate outcomes and the content and delivery of the GDNZIA. In 2022 the group will meet three or four times and meetings will be held online.
Toi Ohomai Institute of Technology is seeking expressions of interest from those in the industry who would like to join the industry partnership group in 2022. If you are interested in participating, please email Appley Boyd (appley.boyd@toiohomai.ac.nz) with a brief outline of why you wish to join and how you can contribute. Expressions of interest must be received no later than 31 January 2022.
Graduate Diploma in New Zealand Immigration Advice Industry Placement
If you have an employee that you would like to become licensed, they will need to complete the 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 one 2022 commencing on 21 February 2022, please email Appley Boyd (appley.boyd@toiohomai.ac.nz) with the 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)
November 2021 Webinar recording now available
The recording of our last live webinar for 2021, “When your clients are prospective employers or employees: Aspects of best practice” is now available to view. We have also provided a PDF version of the presentation for you to download.
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”.
‘Immigration advice’ on online platforms
We have received information about immigration advice being provided by individuals without a license in forums on social media. We are limited in the action we can take on social media posts, forums and blogs, but understand that this social media activity has an impact on your work and reputation as licensed advisers, particularly during the current climate.
To help support you, we have developed some resources, including a response for advisers to share on social media platforms, or with forum/blog administrators when you see possible unlicensed advice being given. The resources also include a PDF which explains who can give New Zealand immigration advice. These resources will help raise awareness of the importance of seeking advice from licensed advisers and draw attention to the consequences of providing unlicensed immigration advice.
The PDF resource will be made available on the IAA website in the New Year. If you would like to receive the social media response, please register your interest for this resource to be provided to you at iaareferrals@iaa.govt.nz with “Social media response” in the subject line.
We are also in the process of developing a proactive marketing campaign to promote the importance of using a licensed immigration adviser and will have more information about this for you in the next newsletter.
If you are concerned about the advice being provided on a particular social media platform, we encourage you to lodge a complaint with us so that we can investigate. You can find the complaint form and further details on how to make a complaint on our website.
To help with our enquiries, we will need information such as the details of the page, or the name of the blog administrator, and their email identification. This is because the page or blog may only be visible to its members. Any complaint will also need to be supported by information about the posts, for example screen shots that show the alleged immigration advice.
Client fees and refunds
The Authority has observed that there appears to be some misunderstanding around advisers’ obligations regarding client fees and refunds.
What does the Code of Conduct say about fees and refunds?
The Code of Conduct has several clauses relating to fees and refunds. The Authority has provided guidance around these obligations in the Code of Conduct Toolkit. In summary:
- Clause 20(a) states that fees charged by advisers must be fair and reasonable in the circumstances.
Advisers must be able to justify the fees they have charged. What is considered “fair and reasonable” depends on many factors including the circumstances of the client, the adviser’s experience and ability, the complexity of the application, and the adviser’s location.
- Clause 20(b) states that an adviser must work in a manner that does not unnecessarily increase fees, and clause 20(c) obliges an adviser to inform clients of any additional/changed fees and agree to them in writing.
Advisers should pay careful attention to how they set fees so they don’t unnecessarily increase fees. For example, through poor time management or rework. In some situations, a client’s case may involve additional costs and complexities that the adviser and the client were not aware of when they entered into the written agreement. If this is the case, the adviser must obtain the client’s agreement in writing to any additional fees or changes to previously agreed fees.
- Clauses 24(a) and 24(c) state that refunds given must be fair and reasonable in the circumstances and that any refunds must be promptly provided.
As a general principle, an adviser cannot retain fees that are not fair and reasonable for services provided.
What are some common issues the Authority has seen regarding fees and refunds?
A common issue encountered by the Authority is refund policies in written agreements that don’t align with the requirement for refunds to be fair and reasonable. The refund policies have clauses such as “no refund is payable”, or “a refund is not payable if you breach your obligations to us or INZ”, or “the first instalment of fees is to cover administration and setting up the client file and will not be refunded”.
These statements don’t align with the obligation under clause 24(a) of the Code of Conduct for refunds to be fair and reasonable in the circumstances. An example of an acceptable way to word a refund policy for advisers could be:
We will consider a fair and reasonable refund of fees depending on the circumstances, and which takes into consideration any professional work already undertaken.
Charging a non-refundable fee when engaging new clients is known as a “sign on fee”, and the Immigration Advisers Complaints & Disciplinary Tribunal (the Tribunal) has previously found that this practice does not comply with the Code of Conduct.
What Tribunal decisions mention fees and refunds?
In Geldenhuys v Yap [2013] NZIACDT 27 the Tribunal commented on non-refundable “sign on fees”:
… [the adviser] took the view that provided notification was given, it was permissible for her to take a “sign on” fee. [The adviser] claimed the money was not refundable as she was entitled to have a client pay her $1,950 for the opportunity of entering into a professional relationship with her… I am satisfied it was neither fair nor reasonable to charge a client for entering into a professional relationship…
… [the adviser] attempted to justify the fee in terms of it covering the cost of routine administrative tasks involved in commencing a professional engagement. The explanation is unconvincing. First, it was not supported with any costing information. Second, given the extremely high hourly rates it is not evident why [the adviser] could expect to separately recover the cost of incidental administrative tasks.
In Lim v Gu-Chang [2014] NZIACDT 77, the Tribunal assessed an adviser’s justification for their fees:
… [the adviser] has sought to justify the fee in part due to services provided after Immigration New Zealand declined the application… However, the time involved in dealing with those issues should not have been substantial… [the adviser] presented redacted documents purporting to show comparable fees to what [she] charged. I give the material no weight, the circumstances are not explained and the persons charging the fees have not provided any information for the Tribunal….
[the adviser] also provided the total expenses of running her practice; the information provides nothing that assists in justifying the fee or establishing an appropriate hourly rate, or charge on a fee for process basis… [the adviser] claims initial discussions took over 11 hours that was before starting to prepare the application, and the subsequent stages also occupied many hours of work. The time claimed is simply not consistent with a competent licensed immigration adviser practising effectively. I am satisfied the charge was grossly excessive….
In Blsschoff v Yerman [2015] NZIACDT 101, the Tribunal explained why refunds must be fair and reasonable:
…I am satisfied [the adviser] was obliged to place all the fees she received into a client funds account. It was not fair and reasonable to treat the whole of her fee as non-refundable. That effectively deprived her client of the option of seeking alternative representation if she failed to meet her client’s expectations, or for her client to change her mind about proceeding…
In RDA v Registrar of Immigration Advisers [2020] NZIACDT 4, the Tribunal commented on an adviser’s refund policy:
…the adviser’s refund policy does not comply with the Code. An adviser cannot refuse a refund in all cases of withdrawal, termination or a change in personal circumstances, since the Code requires a refund where that would be fair and reasonable…
Tribunal Decisions
The Immigration Advisers Complaints & Disciplinary Tribunal has recently released the sanctions decision for HT v Shaikh. In the substantive decision of 27 August 2021, the Tribunal upheld the complaint finding that Sarfraz Saif Shaikh breached Clause 1 of the Code of Conduct by missing the deadline to file the complainant’s visa application.
In paragraph [9] of the decision, the Tribunal stated:
It was found that Mr Shaikh was not professional or diligent, nor did he exercise due care. He had breached cl 1 of the Code. His conduct was not mere inadvertence or administrative oversight. There were multiple failures by him:
(1) Waiting more than 24 hours to assess the documents.
(2) Making no arrangement with the complainant and/or his staff as to how to send the correct document.
(3) Turning off his laptop and forgetting about the imminent deadline.
Mr Shaikh was cautioned by the Tribunal.
New decisions are appearing regularly and I encourage you to save the following link as a bookmark.
Read recent Tribunal decisions(external link) – Justice website
