March 2023 Newsletter
Message from the Registrar
Kia ora koutou
Welcome to our first newsletter for 2023.
I want to start by acknowledging those in New Zealand who have been directly or indirectly impacted by the recent weather events especially those who have lost their homes, businesses, and belongings. If you have been personally impacted, and you are therefore unable to submit a renewal application in time, please contact us at info@iaa.govt.nz.
We are working on planning our webinars for 2023. As always, our webinars will focus on competency gaps we have identified through client file inspections, complaints we have received, and survey results. The dates of future webinars will be announced on our website in due course.
In this newsletter we share our guidance on the question of what amounts to a reasonable professional fee, which comes up often during webinars and through queries sent to us.
Please also read about a recent unlicensed prosecution where a former immigration adviser has been convicted, the latest decisions from the Immigration Advisers Disciplinary Tribunal, and to find out more about an opportunity for you to influence the Graduate Diploma in New Zealand Immigration Advice (GDNZIA).
We hope you enjoy this edition of the newsletter.
Keep our standards high.
Ngā mihi nui
Duncan Connor
Registrar of Immigration Advisers
Reasonable fees: Guidelines
Clause 20(a) of the Code simply provides that a licensed adviser must ensure that any fees charged are fair and reasonable in the circumstances. But how can an adviser or client assess what is a fair and reasonable fee?
It is difficult to prescribe specific amounts because migrant circumstances differ. For example, a complex case that requires considerable research, extensive submissions, and follow-up with decision-makers, will likely justify a higher professional fee than the fee for the same type of application, where there is no adverse history or special circumstances to consider.
What came through quite clearly in the responses of visa applicants who took part in the 2021 Migrant Survey, was that clients expect costs and fees to be clearly explained to them from the outset. However, this is not simply a client expectation, it forms part of your obligations under the Code, such as those contained in clauses 16(a), 18(b), 19(f), and 20(c).
Being clear and transparent about how fees are calculated, when they become payable, how they are to be paid, and providing regular updates about changes to fees are also easy ways to avoid later disputes. All these matters should be clearly detailed in any written agreement between client and adviser.
There are number of factors that you can consider in setting fees. These factors can drive fees higher or lower. Whether a fee is ‘reasonable’ or ‘fair’ is determined by appropriately balancing the many considerations you can or should take into account. We have listed these considerations in the Code of Conduct Toolkit and we encourage you to take note of them.
Many new licensed advisers also wonder whether professional fees should be charged at an hourly rate, or on a fixed fee basis. There is no right or wrong answer to that question either; guidelines on deciding how to charge fees can also be found in the Code of Conduct Toolkit. Please be mindful that if your fees are charged on an hourly basis, your time must be spent in a conscientious and diligent manner, so as to comply with clauses 1 and 20(b) of the Code.
Please also remember that it is the Immigration Advisers Complaints and Disciplinary Tribunal (the Tribunal) that determines whether a fee charged by an adviser is fair and reasonable in the specific circumstances of the case. Some Tribunal decisions on this matter are included in the Code of Conduct Toolkit. We also encourage you to keep up to date with new decisions being issued by the Tribunal.
Former Licensed Immigration Adviser convicted
Former Auckland based licensed immigration adviser, Gregory Francisco Smith, who continued to provide immigration advice without a licence, has been convicted and sentenced to 2 months community detention, 100 hours of community work and ordered to repay $4,400 to the complainant. Mr Smith was facing 2 charges in relation to providing immigration advice without being licensed or exempt, and asking for or receiving a fee.
In 2015, Mr Smith’s application to renew his licence was refused by the Registrar of Immigration Advisers after four complaints against him were upheld by the Immigration Advisers Complaints and Disciplinary Tribunal. These complaints related to serious breaches of the Licensed Immigration Advisers Code of Conduct 2014.
Based on a complaint, the Immigration Advisers Authority started legal proceedings against Mr Smith, who made false promises of lodging visa applications with Immigration New Zealand. The complainant requested Mr Smith’s assistance with his New Zealand residence application and paid him $4,400. Mr Smith repeatedly confirmed to the complainant that he had submitted the application with Immigration New Zealand and later assured the complainant that an interim visa was on the way to help the complainant stay and work in New Zealand. Later, the complainant found out from Immigration New Zealand that Mr Smith never submitted any application and the complainant’s stay in New Zealand became unlawful.
You can read more on our website:
Former licensed Immigration Adviser convicted, puts visa applicant at risk
Tribunal decisions
The Immigration Advisers Complaints & Disciplinary Tribunal has recently released 2 sanctions decisions for ZK v Li and DD v Pabellon.
In ZK v Li, a substantive decision dated 8 November 2022, the Tribunal partially upheld the complaint finding that Mr Li has breached clauses 26(c) of the Code of Conduct as he failed to confirm in writing to the Complainant the details of material discussions about her remuneration. Mr Li was cautioned.
In DD v Pabellon, a substantive decision dated 15 November 2022, the Tribunal upheld the complaint finding that the Ms Pabellon has breached clause 1 of the Code of Conduct as she failed to recognise (across multiple stages of the process) that the Complainant’s academic qualification had not been completed and did not qualify for the points claimed. In doing so, Ms Pabellon provided inaccurate advice to the Complainant leading to the application being withdrawn. The Tribunal found that Ms Pabellon lacked due care and diligence in advising the Complainant to go ahead with the expression of interest and later residence application. Ms Pabellon was cautioned, directed to immediately pay to the Registrar $1,000 and to the Complainant $6,450.
New decisions are appearing regularly, and we encourage you to save the following link as a bookmark.
Recent Tribunal decisions(external link) — Justice website
Update from Toi Ohomai/ Te Pūkenga
GDNZIA Industry Partnership Group
The Graduate Diploma in New Zealand Immigration Advice (GDNZIA) industry partnership group is made up of GDNZIA programme staff, a representative from the IAA, a representative from 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 2023 the group will meet 3 or 4 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 2023.
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 10 March 2023.
Licensing matters
Naming your application supporting documents
Many licence applications require applicants to submit supporting documents, such as supervision minutes, client files, police clearance certificates, et cetera. If you are uploading your documents online, you must abbreviate document names and avoid using special characters, to avoid any issues with lodgement of your application. If your document name exceeds 50 characters in length, and/or contains special and foreign language characters, your upload will be unsuccessful.
