November 2023 newsletter
Message from the Registrar
Kia ora koutou,
Welcome to another edition of the IAA newsletter. Here in the Southern Hemisphere we are enjoying the start of daylight savings and some warmer weather.
In this newsletter we have answered the questions we didn’t get to in the last webinar on Client Files. You can also access the recording of the webinar if you were unable to make it.
We have also included a summary of the Migrant Survey results for you to read over. It is pleasing to see that client’s willingness to recommend their adviser to others remains high and stable. The results do however suggest there may be continued reluctance from some advisers to refer clients on to another adviser/lawyer when specialist advice is needed. This is a good reminder that when a client requires specialist advice that you’re not able to provide to ensure you’re referring them on to someone who can help.
Finally, we have an announcement regarding our last webinar for the year, as well as a reminder from Toi Ohoimai to graduate students around the timeframes for processing. If you’re a supervisor this article will be of interest to you so you can support your supervisees.
We hope you enjoy this edition of the newsletter.
Keep our standards high.
Duncan Connor
Registrar of Immigration Advisers
IAA Webinar 2: Client files
Link to recording
The recording of our second webinar, ‘Client Files’ is now available to view. We have also provided a PDF version of the presentation for you to download. You can access both at the link below.
Q & A session: Answers to anonymous questions
There were many questions submitted during the webinar, but due to time constraints we could not specifically answer them. We have reached out to individual advisers whose questions had remained unanswered.
Our responses to other relevant questions which were posed anonymously, appear below. These cover various aspects of the Code of Conduct 2014 (the Code).
1) ‘Please explain how the Code of Conduct overrides the Privacy Act as this is not clear. Even the Courts cannot override legislation.’
We received several questions related to the interplay between client confidentiality, the obligation to maintain client files and/or the obligation to submit client files to the Authority for inspection.
During the webinar we pointed out that under the Code, the submission of client files to the Authority is one of the exceptions listed in clause 4 (‘Confidentiality’). Clause 4(a)(iii) specifically refers to the administration of the Immigration Advisers Licensing Act 2007 (the Act). The Code of Conduct itself is a type of legislative instrument that has been lawfully developed, approved, and signed by the Minister of Immigration, under section 37 of the Act.
Turning to the Privacy Act 2020, we see that section 22 lists several Information Privacy Principles (IPPs). For example, IPP 1 states:
- "(1) Personal information must not be collected by an agency unless—
- (a) the information is collected for a lawful purpose connected with a function or an activity of the agency; and
- (b) the collection of the information is necessary for that purpose."
Section 24 of the Privacy Act 2020 clarifies the relationship between Information Privacy Principles (PPPs) and other New Zealand law. It states:
- "(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."
The Authority’s powers of inspection are provided for in New Zealand legislation. In fact, during the webinar we referred to both the purpose of inspections (sections 56 of the Act) and the Authority’s inspection powers (section 57 of the Act). Client files are inspected by the Authority for lawful purposes connected with the Authority’s functions and are therefore not a breach of the Privacy Act.
2) Sometimes clients are requested [sic] a copy of their file, do we need to provide our cover letters to them? Is it mandatory to provide our cover letters to client?
Clause 26(f) of the Code of Conduct specifies that licensed immigration advisers must release a copy of all applications lodged on behalf of the client and all correspondence relating to the client. A cover letter is part of a licensed adviser’s communications with a decision maker (for example, Immigration New Zealand) related to the client and as such it must be released under Clause 26(f) of the Code.
3) What is the stand of the Authority on LIAs unwilling to provide client files to a client/another LIA (new representative)?
Refusing to provide client files (specifically, all applications lodged on behalf of the client and all related correspondence) to the client or their new representative is a potential breach of Clause 26(f) the Code.
4) Hi please kindly advise which clause requires LIAs have to offer an application draft to clients before lodgement. I can not see details of that from Clause 1. Thank you.
Clause 1 is very broad. It will be impossible to list and codify each and every possible instance in which an adviser might lack diligence, professionalism and due care. It will be for the Tribunal to determine if the disciplinary threshold for a breach of clause 1 has been met, depending on the circumstances of each case and consequences for the client.
For an illustration of how and why an adviser’s failure to give their client the opportunity to review their visa application before the application was lodged with INZ may be a breach of clause 1 please see INZ (Calder) v Chiv [2019] NZIACDT 73, especially [51]-[58]. Please also see NG v Murthy [2023] NZIACDT 10 where Ms Murthy was found to have breached clause 1 by failing to provide her client with the opportunity to review section 61 requests prior to their lodgement. A similar finding was made in Li [2023] NZIACDT 27.
INZ (Calder) v Chiv [2019] NZIACDT 73 [PDF, 241KB](external link)
NG v Murthy [2023] NZIACDT 10 [PDF, 217KB](external link)
BT v Li [2023] NZIACDT 27 [PDF, 209KB](external link)
5) If a client provides irrelevant personal documents (copies) surely these would not need to be kept as part of the client file?
Copies of irrelevant personal documents should be returned to the applicant and should not be kept on file. What must be kept on file is listed in clause 26(a) of the Code.
6) Everyone knows there is significant unlicensed advice happening at the moment and nothing appears to be done despite the fact this information is passed onto INZ. This does not happen quickly enough and hence we have migrants being exploited. It gives us LIAs a bad name and it is not being acted on quickly enough to protect migrants and our industry.
If you have information about unlicensed immigration advice, either in New Zealand or overseas, please lodge a complaint so that the Authority can assess and investigate.
7) What if you leave a firm and then get inspected but you don’t have access to the files? What happens when the employer will not allow you take the client files ?
Generally, it would be an adviser’s individual responsibility to ensure that he or she complies with all aspects of the Code, including Clause 26(e). We recommend that you discuss your professional obligations with your employer before commencing employment.
We are also mindful of the Tribunal’s comments in WQ v Emberson [2019] NZIACDT 28 [59]-[64] where the Tribunal stated:
- "[…]An adviser can only be required to produce for inspection documents "in that person's possession or under that person's control"… The obligation in cl 26(e) of the Code must be interpreted so as to be consistent with s 57(1)(c) of the Act. As a former employee, Ms Emberson will have no possession or control over the complainant's file at the law firm. The file was that of the firm and not Ms Emberson. By the time the Authority requested the file, Ms Emberson had left the firm … Nonetheless, an adviser must make reasonable efforts to assist the Authority to obtain the employer’s file […]"
Therefore, if you are unable to provide a client file for inspection, please set out your reasons in a letter to the Authority. We will consider the circumstances on a case-by-case basis.
WQ v Emberson [2019] NZIACDT 28 [PDF, 186KB](external link)
8) Is it acceptable to take 50% at engagement if stated in written agreement - is this considered taking funds in advance?
If you are taking money in advance of services being provided, you must ensure that you comply with Clause 25 of the Code.
In addition, this needs to be clearly stated in the agreement and should be explained to your client, as per clauses 18(b) and 19(i) of the Code.
Clause 25 of the Code - Client funds
9) Can the client be required to pay for photocopies or time creating an electronic record of the file, when client or a new consultant has asked for the file?
When requested by the client, or their new licensed adviser, you must release a copy of all applications lodged on behalf of that client and all correspondence relating to the client (cl 26(f)). When releasing this information to the client's new LIA, there is no specific requirement in the Code to do so without charge. Therefore, you may be able to request the new LIA that you be compensated for expenses incurred in making copies, or sending the files over to them.
If it is you client who has requested a copy of their file, you may wish to consider the Privacy Commissioner’s guidelines on charging for access to personal information. Furthermore, you should consider clause 21 of the Code related to disbursements.
Privacy Commissioner’s guidelines on charging for access to personal information(external link) — Office of the Privacy Commissioner
We hope the above answers have been helpful. If you still have questions, please do not hesitate to reach out to us at:
Tribunal Decisions
The Immigration Advisers Complaints & Disciplinary Tribunal has recently released 2 sanctions decisions for upheld complaints
ED v Dai
The Tribunal found that Dai has breached clauses 2(e), 3(c) and 26(c) of the Code of Conduct for allowing 2 unlicensed employees to give immigration advice to the Complainant and obtain her instructions, failing to record details of oral discussion, and failing to confirm details of material discussions in writing to the Complainant.
Dai was censured, directed to undertake LAWS 7015 Professional Practice at Toi Ohomai at its next intake, ordered to pay the Registrar $2,500 and to pay the Complainant $7,716 within one month.
WN v Lawlor
The Tribunal found that Lawlor has breached clauses 1, 24(b) and (c), and 27(b) of the Code of Conduct.
- In breach of clause 1, Lawlor failed to be honest, professional and conduct himself in a timely manner to ensure that the original documents were returned to the Complainant upon his multiple requests; and refund the Complainant for the unsubmitted partnership work visa in a timely manner.
- In breach of clauses 24(b) and 24(c), Lawlor failed to ensure refund obligations could be met and promptly provided.
- In breach of clause 27(b), Lawlor failed to return the personal documents to the client without delay and in a secure manner when requested or required.
Lawlor was censured, prevented from reapplying for any licence for a period of 2 years 25 August 2023, ordered to pay the Registrar $7,000 and to pay the Complainant $3,495 within one month.
New decisions are appearing regularly, and I encourage you to save the following link as a bookmark.
Recent Tribunal decisions(external link) — Ministry of Justice
Toi Ohoimai update: Reminder about timelines for graduating students
Information for GDNZIA students intending to upgrade to a full licence
Toi Ohomai Institute of Technology has strict resulting procedures at the end of each semester. For students who are currently provisionally licensed and who are expecting to complete their Graduate Diploma in New Zealand Immigration Advice (GDNZIA) studies this year, if you are intending to apply to upgrade to a full licence it is important you understand the likely timeframes involved in the resulting process.
After GDNZIA exams are completed, graduates must be confirmed at an Academic Committee meeting. This semester, the Academic Committee will be meeting on 14 December 2023. Following this, qualifications and transcripts will be printed and posted to graduates. While we will endeavour to do this as quickly as possible, with the Christmas holiday period it is likely that graduates will not receive their documents until mid-late January 2024.
The IAA requires applicants applying to upgrade from a provisional licence to a full licence to provide evidence of completing an approved qualification or approved refresher course. Acceptable evidence of completing an approved qualification or approved refresher course is a certified copy of the certificate and transcript. The IAA Licensing Toolkit sets out the requirements for upgrades:
Students will need to wait until they receive their qualification and transcript in the post before they apply to upgrade their licence.
2022-2023 Migrant survey results
Survey of New Zealand visa applicants who have used an Immigration Adviser 2022-23. Conducted for the Immigration Advisers Authority by GravitasOPG.
Presentation of results
Introduction
Since 2009, the Immigration Advisers Authority (IAA) has surveyed clients who have used a licensed immigration adviser. The aim of this research is to monitor licensed adviser performance and provide information that will assist the IAA to regulate and support licensed advisers.
The survey is undertaken using an online methodology. A selected 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 address on record) are invited to participate. The questionnaire is provided in English and Simplified Chinese. Participation in the survey is voluntary and does not affect their visa application.
The survey is run by an independent research company, and all responses are confidential. The Immigration Advisors Authority does not know who has completed the survey.
Summary
Data and text from image
- 3/5 of LIA clients have their service expectations exceeded
- Word of mouth remains the most common way applicants find out about an adviser
- 41% of clients are aware of the complaints process
- Clear and frequent communication is the best way to exceed client expectations
- 91% of applicants would be willing to recommend their adviser to family and friends
- Applicants are very positive about the timeliness of the process
The 2022-2023 survey results show satisfaction with the service provided by licensed advisers remains high and stable. Applicants remain positive about the quality of service received from their adviser overall (89%), including 60% who are very satisfied. 5% express some level of dissatisfaction.
3 in 5 adviser clients (61%) continue to have their expectations of the service they would receive from their adviser exceeded, including 32% who described the service as much better than they thought it would be. Almost all applicants (91%) would be willing to recommend their adviser to family and friends.
Satisfaction with overall experience of applying for an NZ visa has improved significantly since 2021.
What can you do?
- Refer clients to other advisers when specialist advice is needed.
- Have regular communications with your clients including providing timely updates on the progress of their application.
- Provide all your clients with a copy of the New Zealand Licensed Immigration Advisers Professional Standards.
- Ensure all clients are aware of their visa conditions – especially students and visitors.
Upcoming IAA Webinar
“Providing immigration advice: What does tailored and diligent service delivery look like?”
As announced, the 2023 Migrant Survey results are in. Clients have shared with us what impressed them the most about the service they received from their advisers and what could be improved. In our last webinar for the year, we will share insights and observations garnered from clients’ feedback. We will also discuss ways in which licensed advisers can tailor their services to meet the needs of their clients.
The webinar will be presented on 23 November 2023, 2pm to 3pm (NZT).
Register to attend the webinar(external link) — Zoom
If you have any questions you would like to submit to the IAA team about this topic prior to the webinar, please email us at:
We will do our best to ensure your questions are answered as part of the webinar.