October 2022 Newsletter
Message from the Registrar
Kia ora koutou
The Authority has just presented its third and last webinar for the year, discussing the ‘The End of the Client Relationship’. You will find a link to the recording at the end of this newsletter. This concludes our webinar series for 2022. As you already know, the content of the series was developed in response to the feedback provided by migrants who participated in the 2021 Migrant Survey. We hope that the webinars have been a useful educational tool in improving your practice or in clarifying issues that you may have been uncertain about.
We have continued to engage with migrants. Our most recent engagement was in September, when we participated in a webinar hosted by Immigration New Zealand and presented to migrant communities. These kinds of engagements help us to raise awareness with migrants of the importance of engaging licensed advisers and of the regulatory role of the Authority.
We are also aware that many of you are working on Accredited Employer Work Visa (AEWV) applications, and therefore engage with both prospective migrants and their employers. Tripartite relationships such as these are often complicated and may give rise to questions related to conflicts of interest, drafting appropriate written agreements, being drawn into complex employment matters, et cetera. We touched on some of these issues in our November 2021 webinar (‘When your clients are prospective employers or employees: Aspects of best practice’); however, if you would like us to continue exploring these topics in future webinars, please let us know. Another question, which the Authority has been asked in the context of AEWV applications, is whether a migrant can be compelled to engage a specific adviser. Therefore, we have included a brief note on the subject below.
We hope you enjoy this edition of the newsletter.
Keep our standards high.
Ngā mihi nui
Duncan Connor
Registrar of Immigration Advisers
Update from Toi Ohomai
GDNZIA industry placements
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 one 2023 commencing on 20 February 2023, please email Appley Boyd 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)
Licensing matters
Re-apply applications (TTMRA)
There appears to be some confusion around the re-entry pathways available to former licensed advisers who were initially granted a licence under the provisions of the Trans-Tasman Mutual Recognition Act 1997 (TTMRA).
Ordinarily, if a former licensed adviser wishes to re-enter the profession, they can (re-)apply for a licence as per sections 10 and 18 of the Immigration Advisers Licensing Act 2007.
Former advisers, who are also currently registered as Australian Migration Agents, can re-apply for a New Zealand immigration adviser’s licence under the provisions of the TTMRA. Please note that:
- If your licence has expired less than 12 months ago, you can re-apply online; you must also provide a Section 19 Notice (see Form 401A). This can be uploaded as an additional document with your online application.
Form 401A Trans-Tasman Mutual Recognition Act 1997 notice [PDF, 255 KB] - If your licence has expired more than 12 months ago, you cannot re-apply online. You will need to complete Form 401 and send it to the Authority via post, courier, or e-mail.
Form 401: Trans-Tasman Mutual Recognition Act 1997 application [PDF, 614 KB]
Having said that, we need to point out that there is nothing that prohibits a person who was initially licensed in New Zealand under the TTMRA from making an application to be (re-) licensed under the Immigration Advisers Licensing Act (IALA). In other words, they can submit an ordinary re-apply application without reference to the TTMRA, if they so choose.
However, if such an application is made, the TTMRA would not apply. This means that the applicant will have to meet the qualification and training requirements specified in competency standard 1, such as completing a refresher course if they last held a licence more than 12 months ago. Nonetheless, this is available as an option, and may in fact be the only pathway for former licensed advisers who wish to re-enter the industry but are no longer registered as Australian Migration Agents.
We hope the above clarification will be useful in making an informed decision as to which application type may be most suitable for your circumstances.
Can a migrant be compelled to engage a specific adviser?
The Authority has received queries as to whether a prospective migrant could be forced to engage the services of a specific licensed immigration adviser, for example one chosen by the migrant’s prospective employer (who may also be paying for that adviser’s services).
The first thing to remember is that the question of who is paying the service fee is not necessarily indicative of who the client is. The simple rule is that a client is a person who is receiving immigration advice, regardless of who pays for the adviser’s services. Therefore, depending on the situation, an adviser may have more than one client in relation to an immigration matter. In tripartite agreements, the prospective employee is a client of the adviser preparing their visa application. In this regard, please see the decision in INZ (Gilray) v Singh [2019] NZIACDT 53, where the Immigration Advisers Complaints and Disciplinary Tribunal commented that “…The breaches of the Code have arisen from one critical mistake Mr Singh made. He thought the employer was his “main client”. That will be correct in commercial terms. But it is not correct in terms of his professional responsibilities under the Act and the Code. The three visa applicants were his true immigration clients, to whom he owed his obligations under the Code…”.
Going back to the question of whether a migrant can be compelled to engage a specific adviser: The prospective employee is a prospective client and therefore free to be represented by an adviser of their own choosing. They may wish to follow their prospective employer’s recommendation as to who may be a suitable adviser, but they can never be forced to do so.
The Authority cannot take action against employers in such circumstances, simply because matters between employers and employees fall outside the scope of the Authority’s regulatory functions. Employment New Zealand, or the Labour Inspectorate, may be better suited to provide advice, or take action, if necessary.
The Authority can only step in, if there has been a breach of the Immigration Advisers Licensing Act 2007 (the Act), or the Licensed Immigration Advisers Code of Conduct 2014, in the provision of immigration advice to clients. With reference to the original question, this may happen, for example, where it is the licensed adviser who is acting unprofessionally towards a client, or towards another immigration adviser.
If it appears that a licensed immigration adviser has breached the Code of Conduct or the Act, a person may wish to make a formal complaint, which will be investigated by the Authority if it meets the criteria of section 44 of the Act.
Tribunal decision
The Immigration Advisers Complaints and Disciplinary Tribunal (the Tribunal) has recently released sanctions decisions for SU v Murthy, TQ v Gibson, and CT v Nandan.
In SU v Murthy, the Tribunal found that the Ms Murthy has breached clauses 1, 18(a), 26(c) and 28(a) of the Code of Conduct as she filed the Complainant’s NZQA assessment application late, failed to have a written agreement for the work visa application, failed to confirm in writing to the Complainant termination of her service and failed to confirm in writing to the Complainant and her husband the details of material discussions. Ms Murthy was censured and directed to undertake and complete the LAWS 7015 paper at Toi-Ohomai Institute of Technology, at its next intake. She was ordered to immediately pay to the Registrar $1,500 and immediately pay to the complainant $3,553.
In TQ v Gibson, the Tribunal found that the Ms Gibson has breached clauses 1 and 26(b) of the Code of Conduct as she failed to reply to Immigration New Zealand’s potentially prejudicial information letter by the deadline, failed to promptly inform the Complainant of the application outcome, and failed to provide timely update to the Complainant. Ms Gibson was cautioned. She was ordered to immediately pay to the Registrar $1,000 and immediately pay to the complainant $2,000.
In CT v Nandan, the Tribunal found that the Ms Nandan has breached clauses 22, 24(c) and 28(a) of the Code of Conduct as she failed to provide an invoice to the Complainant for his payment of $2.000, failed to provide a refund to the Complainant, and failed to advise the Complainant of the termination of their services contract when she surrendered her licence. Ms Nandan was cautioned. She was ordered to immediately pay to the Registrar $500 and immediately pay to the complainant $2,000.
New decisions are appearing regularly and I encourage you to save the following link as a bookmark.
Read recent Tribunal decisions(external link) – Ministry of Justice
IAA Webinar 3
The recording of our third webinar, ‘The End of the Client Relationship’ is now available to view. We have also provided a PDF version of the presentation for you to download. You can access both of them here.
