February 2021 Newsletter

Message from the Registrar

Kia ora

As I write this, in Auckland we have been moved back up to Alert Level 3, so the Immigration Advisers Authority (IAA) team are once again working remotely.

We are continuing to see a high volume of upgrade applications submitted to the Authority. The Licensing Team is working hard to ensure applications are assessed as quickly as possible.

The participants for the 2021 Licensed Adviser Reference Group have now been selected. Thank you to everyone that submitted an expression of interest. The feedback the IAA receives from the Reference Group is invaluable as the participants have very diverse backgrounds and various levels of experience in the industry. I look forward to working with the Group over the next 12 months to further improve the licensed immigration adviser’s regime.

We would also like your feedback on what topics you would like to be covered in future webinars presented by the Authority. Suggestions can be submitted to info@iaa.govt.nz.

From 22 March 2021, there are changes to the regulatory scheme governing Australian Migration Agents. This will affect unrestricted lawyers who hold an Australian practicing certificate. Further information is detailed below.

Thank you for your patience, keep up the great work and professionalism.

2021 Licensed Immigration Advisers Reference Group

Thank you to everyone who expressed interest in attending the 2021 Licensed Immigration Adviser Reference Group.  The IAA is pleased to announce the following licensed immigration advisers who will be part of the 2021 Reference Group:

• Jens Mueller (Barclays Lloyds Limited)
• Paul Janssen (Immagine Australia and New Zealand)
• Affiff Shah (New Zealand Visa Solutions Ltd)
• Nassim Lalehzari (Working International Visas Limited)
• Mahalakshmi Saikumar (Australia NZ Migration Centre)
• Stephen Au (PricewaterhouseCoopers)

The meetings will be held virtually and minutes will be published on the IAA website.

Obligations to notify change in circumstances

In accordance with clause 10(e) of the Code of Conduct 2014 (the Code) and section 26(1) of the Immigration Advisers Licensing Act 2007 (the Act) licensed advisers must notify the Authority of any relevant changes in circumstances within a reasonable time, but no later than 10 working days after the change.

Section 26(2)(a) of the Act defines a relevant change in circumstances as any change of information that a person has provided under section 18. This includes a change to any information, you may have declared in your most recent application for a licence. Details of any secondary business associations should also be declared.

A change in circumstances may be notified to the Authority via the online portal, at any time, by submitting a ‘Change of details’ request.

Under section 70(1) of the Act, it is an offence if a person fails to notify the Authority of any change of circumstances per section 26, without reasonable excuse. If convicted under section 70 (1), a fine not exceeding $10,000 may be imposed.

Licensing matters

Incomplete upgrade applications

As outlined in our December 2020 newsletter, when submitting licence applications, you must ensure that the application is complete. You must include all applicable evidence and supplementary documentation. This is a statutory requirement, set out in section 18 of the Act(external link).

We are currently receiving a high volume of initial and upgrade applications. We have noted that a number of those applications have been incomplete, missing key supporting information, and are therefore unable to be lodged. While there are many examples where this has been the case, receiving upgrade applications which are missing the required supervision records, is a recurring problem.

If you are planning to submit an upgrade application, please ensure that you have familiarised yourself with the definition of ‘supervision records’, as specified in the Supervision toolkit:

Please note that these include:

• the supervision agreement, as approved by the Registrar
• a list of client files for which the supervisor is providing direct supervision
• the provisional licence holder’s professional development plan and record
• minutes of supervision meetings.

Full guidance on the upgrade application process is detailed in the Licensing Toolkit. Please ensure that you follow all instructions set out in our Upgrade form [PDF, 427 KB] before submitting your application.

Please note that incomplete applications may fail lodgement requirements and be returned to you. This may cause additional delays with processing your application.

Provisional licence holders - Changing supervisors

If you intend to change supervisors please ensure that you and your current supervisor review your agreed professional development plan (PDP). Any learning needs you have achieved under their direct supervision should be signed off by your supervisor. You should also review your ongoing learning needs with your new supervisor.

At your upgrade, assessors will be checking whether you have achieved your learning needs.

Continuing professional development (CPD) - Mandatory activities

We understand that many advisers have taken the opportunity to attend INZ webinars provided over the last 12 months as part of their annual CPD requirement.

However, please be aware that these INZ webinars are not a substitute for attending or watching a recording of at least one webinar presented by the Authority. The latter is still a mandatory requirement. You may however claim attendance to non-IAA webinars towards the required 20 hours CPD, so long as it meets the requirements set out in the Toolkit.

For further guidance on acceptable CPD activities and available webinars, please refer to our CPD toolkit and webinars page, online.

IAA Webinars

Further to our December edition, we welcome your feedback on the pre-recorded format of delivering our webinars.

The pre-recorded format entails seeking questions from licensed immigration advisers in advance of recording the session. This helps us to establish the key areas of concern around the particular subject matter that the webinar will focus on.

We are also interested to hear from advisers what topics you would like to see covered in future webinars presented by the Authority.

Please send your feedback and/ or webinar topic suggestions to info@iaa.govt.nz.

IAA resources for Advisers

The Authority is receiving large volumes of queries which can be best answered by referring to the resources available on the Authority’s website.

The Authority is unable to provide specific advice on issues relating to individual licensing applications or those relating to client care. If after consulting the resources, you remain unclear on your obligations, you should consult your supervisor (if applicable) or seek legal advice.

Licensed immigration advisers, are required to demonstrate a knowledge of the responsibilities of licensed immigration advisers, including adherence to the Code; the CPD requirements; renewal requirements and updating the Registrar (CS2, Performance Indicators 2.8).

It is important that you review the Toolkits and resources available from time to time to ensure you are operating fully and consistently with the Code.

Resources available include:

• The Licensing Toolkit – general guidance on the licensing scheme and application process.
• The Supervision Toolkit - general guidance for provisional licence applicants and supervisors.
• The Code of Conduct Toolkit – general guidance on the application of the Code of Conduct 2014.
• The Ethics Toolkit – general guidance on identifying and resolving professional ethical issues.
• The CPD Toolkit – guidance on the CPD requirements.
• FAQs
• Webinars

OMARA Changes - Unrestricted Australian Lawyers

From 22 March 2021 unrestricted lawyers who hold an Australian practicing certificate will be removed from the regulatory scheme governing Australian Migration Agents. This will mean that they will no longer be able to apply for an NZ Immigration Advisers Licence under section 19 Trans-Tasman Mutual Recognition Act 1997(TTMRA).

Australian lawyers with a restricted status are expected to be able to retain registration as Migration Agents for some time after this and accordingly will be able to apply to become New Zealand Immigration Advisers, but this is subject to change.

It is recommended that Australian lawyers take note of their status and whether they have retained registration as an Australian Migration Agent, as this will determine if they can apply for a NZ Immigration Advisers Licence.

Therefore, any individual who wishes to apply for a NZ immigration adviser licence under the TTMRA will be required to provide evidence of their registration as an Australian Migration Agent.

For further information, please refer to the Licensing toolkit, FAQs or consult the Office of Registered Migration Agents.

Tribunal decisions

The Immigration Advisers Complaints & Disciplinary Tribunal has recently released a decision, which found the Adviser had been dishonest and had breached clauses 2(e) and 26(b) of the Code of Conduct 2014.

The Tribunal found that the Adviser was deliberately deceptive in his communications with the Complainant concerning the status of her visa application and in concealing the two s61 requests he file for her and their results, which also amounted to a failure to be honest and professional. The Tribunal also found the Adviser’s conduct amounted to a failure to engage with the Complainant and take her instructions; and the Adviser failed to update the Complainant on the outcome of the visa application and both the lodgement and outcome of the two s61 requests.

In KX v Ji [2020] NZIACDT 43, at paragraphs [55] to [56] of the decision, the Tribunal found that none of a series of updates provided by the Adviser from 19 January 2018 to 30 July 2018 to the Complainant about the status of her application had been honest, as the application had been declined in December 2017. The Tribunal stated “(The Adviser) concealed not just the decline but also the later filing and decline of both s61 requests. He did not inform the complainant of what had happened until May 2019, about 17 months after the visa application was declined.” At paragraph [57] the Tribunal found that the Adviser provided the Complainant with false updates and that “Until May 2019, (the Adviser) pretended that Immigration New Zealand had not made a decision on her visa application.”

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)