Reference group minutes, 27 July 2016

9 September 2016

Date: Wednesday, 27 July 2016 10:15am – 3pm

Place: Immigration Advisers Authority, Level 2, 52 Symonds Street, Auckland

Attendees:

Licensed Immigration Advisers – Matt Gibbons (IntoNZ) (NZAMI), Jennifer De Wald-Harrison (Ernst & Young) (NZAIP), Stephan Du Plessis (Greenstone Global Ltd), Vandana Rai (Immigration Advisers New Zealand Ltd), Asoka Weerasundara (Pro X New Zealand Ltd), Arathi Mohan Tekkam (Sparke Helmore Lawyers), Appley Boyd (Heartland Immigration Ltd), Jianqiang Luo (Luo International Limited), Penny Pan (Sunz International Investments Ltd)

IAA – Catherine Albiston (Registrar of Immigration Advisers), Philip Anderson (Occupational Licensing Team Leader) and Alexandra Simpson (Senior Technical Advisor), (Minute-takers)

MBIE – Anne Yau

INZ – Jade Reid (Relationship Manager INZ Henderson)

Apologies:

Munish Sekhri

Discussion

Welcome
1. Catherine Albiston, Registrar of Immigration Advisers, welcomed members of the group.
2. The agenda:
  1. Authority Update
  2. Inspections programme update
  3. Unlicensed staff and the limits of clerical work
  4. English language standard for licensed immigration advisers
  5. Communication initiatives in the year ahead
  6. Open Forum and topics for future meetings
Authority Update
1. The results from the annual Adviser Satisfaction Survey on the IAA’s service during the last year were encouraging.
  1. Adviser satisfaction had improved from 67% being satisfied with the overall quality of service from the Authority last year to 76% this year. 78% of advisers agreed that the Authority’s new online services made it easier to interact with the Authority.
  2. Some feedback has been received about the level of email and phone service being provided. The Authority has taken on board these comments and will be working on improving its service in these areas.
  3. Many of the comments received in the survey centered around CPD. The Authority will be holding another webinar for advisers on the new CPD requirements during August. Already two webinars have been held with over 400 people having attended these webinars.
  4. The Authority will also be holding a webinar during September to talk through the Supervision Toolkit and cover what it means to be a good supervisor.
2. The Authority had a successful prosecution during July with an unlicensed immigration adviser sentenced to ten months’ home detention at the Porirua District Court. This was after ten charges were laid by the Authority.
  1. Catherine Albiston emphasised the importance of the Authority identifying people working in an unlicensed capacity.
  2. A challenge for the Authority is that it can only take a prosecution if witnesses are prepared to come forward and go to court.
  3. The sentence imposed by the court was consistent with previous sentencing for prosecutions involving a similar number of victims.
3. The Waiariki Bay of Plenty Polytechnic has had a good response from advisers who were keen to take on a student for a work placement. The Authority encourages advisers, particularly in the Auckland area, who may be interested in offering a work placement to students to contact the Polytechnic.
4. During July 2016, a new group of students graduated with the Graduate Certificate in New Zealand Immigration Advice. The Authority also received a steady inflow of provisional licence applications with supervisors. Most supervisors are only supervising one provisional licence holder and there are a small number of supervisors who have two provisional licence holders.
  1. There is no limit on the number of provisional licence holders that a person can supervise at any one time. The Authority would expect that supervisors who are considering supervising more than one person should take into account their capacity to do this before entering into a supervision arrangement.
  2. The Authority has received queries from advisers about whether supervision fees should be charged at an hourly rate, on a percentage rate or on a lump sum basis. All of these approaches are acceptable provided the fees being charged are fair and reasonable and justifiable. The Authority will look at developing some guidance for advisers in response to queries regarding what is considered to be a fair and reasonable supervision fee.
5. During the 2015/2016 financial year, the Authority completed the following in the licensing space:
  1. 152 initial licence applications.
  2. 276 TTMRA applications.
  3. 438 fast-track renewal applications.
6. There was discussion amongst the group about the expiry and surrender rates of advisers.
  1. 64 advisers expired during the 2015/2016 year compared with 56 advisers for the 2014/2015 year. 10 advisers surrendered their licence during 2015/2016 compared to 4 advisers in 2014/15.
  2. Over the last three years, the expiry rate has remained consistent as it has ranged between 8.2% and 8.4%. The surrender rate has been between 0.6% and 1.3%.
  3. The Authority noted that most expired licences generally occurred during the first two years of an adviser being licensed, which is common for across all new businesses.
Inspections programme update
1. Philip Anderson, Technical Team Leader at the Authority presented an inspections programme update for the 2015/2016 period to the group.
  1. 232 inspection renewals were completed between 1 July 2015 and 30 June 2016.
  2. The ability for advisers to lodge an inspection renewal online commenced during November 2015. Since this time, 105 inspection renewals have been lodged online.
  3. Offshore advisers who were selected for an inspection renewal were located in Australia, Canada, China, Fiji, India, Israel, Malaysia, Pakistan, Philippines, Singapore, South Africa, South Korea, Sri Lanka, United Kingdom and United Arab Emirates.
  4. 46 advisers who underwent an inspection renewal were sent improvement letters about their business practices which will be checked at their next renewal.
  5. 3 advisers were refused a licence. All 3 advisers were selected for an inspection renewal and the reasons for the refusals related to Tribunal decisions.
2. Inspections provide the Authority with an educative tool to identify deficiencies in an adviser’s practices and help improve their ability to meet the Competency Standards and comply with the Code.
3. The Authority would expect to see the following on a complete client file:
  1. Documented evidence of the client’s immigration eligibility.
  2. The written agreement entered into with the client and any supporting documentation.
  3. A copy of the internal complaints procedure provided to the client and invoices for services.
  4. All correspondence with the client/INZ and or third parties. This includes emails/letters and notes of verbal communications.
  5. The signed application form tendered to INZ and cover letter that accompanied the application.
  6. Exact copies of all supporting documentation provided in support of an immigration matter and evidence of the decision.
4. If evidence provided with an inspection renewal raises any concerns about whether an adviser is meeting the competency standards or indicates non-compliance with the Code, the Authority will consider these when assessing an application and can also put these concerns to an adviser or seek further information.
5. The possible outcomes resulting from an inspection renewal include the adviser being issued with an improvement letter, a complaint can be made to the Tribunal, a full licence can also be cascaded to a provisional licence or a renewal application can be refused.
6. The Authority has noted some issues that have arisen over the past year when assessing inspection renewals.
  1. There were cases where client eligibility assessments were not being recorded in writing by advisers.
  2. In some cases, no record of communication with the client was provided on the client file. This included what was discussed when an application was declined.
  3. There were instances where written agreements were not outlining payment terms and conditions and written agreements were not being entered into with all parties to the immigration matter.
  4. Some invoices were not being issued in line with the payment terms set out in the written agreement.
  5. There have been occasions where client accounts were not complying with the requirements of a separate client account.
7. The Authority has observed some encouraging trends with inspection renewals assessed during last year.
  1. Advisers inspected who were admitted through the TTMRA have been educated on New Zealand Code of Conduct requirements.
  2. Graduate advisers inspected for the first time over the past year have been of a high standard.
  3. Advisers have been demonstrating that they are completing a good range of active CPD activities.
Group Comments
1. There was positive feedback expressed by the group and acknowledgement about the work that has gone into the inspections programme over the 2015/2016 period.

Unlicensed staff and the limits of clerical work
1. The Authority has noticed a trend that some licensed immigration advisers have been a party to advice from unlicensed staff.
2. There have been a number of complaints before the Tribunal where some unlicensed staff members have been providing immigration advice and acting in a manner that is not considered to be clerical work.
3. It is an offence under the Immigration Advisers Licensing Act 2007 to employ or contract an unlicensed adviser or non-exempt person as an immigration adviser. Advisers are reminded to be careful to ensure that clerical staff or other unlicensed staff do not provide immigration advice.
4. The Act confirms that immigration advice does not include clerical work which is defined as being the provision of services in relation to an immigration matter, or to matters concerning sponsors, employers, and education providers, in which the main tasks involve all or any combination of the following:
  - The recording, organising, storing or retrieving of information
  - Computing or data entry
  - Recording information on any form, application, request, or claim on behalf and under the direction of another person
5. The Tribunal has taken a serious view with unlicensed people engaging with a client and delivering professional services and it expects that licensed advisers do not condone this type of behaviour.
6. There are a number of decisions which advisers can look at listed under Clause 3(e) in the Code of Conduct Toolkit.
7. There was overwhelming agreement from the group that the client engagement needs to be with the licensed adviser. If an employer is not licensed, they need to respect that an adviser has professional responsibilities and is subject to a code of conduct. There was general agreement that advisers need to be aware of what is happening within their office in regards to the provision of immigration advice.
8. The Authority investigates potential offences committed by a staff member who is providing immigration advice.
9. The view was expressed that there is some confusion around an office administration function and the immigration advisory function. It would be helpful for advisers to have further guidance on this. For example, when gathering information is acceptable and when it isn’t.
10. One member noted that all communications to clients from their office always go from a licensed adviser, not a clerical staff member.
11. The Authority noted that the Tribunal decisions are very clear. It is considering holding a webinar on this topic.
English language standard for licensed immigration advisers
1. Anne Yau, Senior Advisor Consumer Policy Team at MBIE discussed the results of the questionnaire on the review of the English language competency standard (competency 5).
  1. There was good engagement with respondents as the Ministry received almost 500 responses to the consultation paper. 68% of respondents agreed with the problems set out in the consultation paper.
  2. A number of respondents had encountered problems with licensed immigration advisers who were considered to have substandard English competency. There was some concern expressed by respondents that poor English could potentially lead to incorrect interpretation of legislation and subsequently poor advice.
  3. 65% of respondents were supportive that a mandatory English language test for all prospective licensed immigration advisers would be acceptable. Several respondents who supported this proposal commented that being raised and educated in English does not necessarily mean that a person has the required level of English competency.
  4. 38% of respondents thought that having more discretion to consider applications on a case-by-case basis would be a better approach towards assessing English proficiency. Whereas 54% of respondents opposed this option as there were concerns raised that considering applicants on a case-by-case approach would lead to inconsistency and inevitably complaints and disputes. The Authority agrees with this view and is not pursuing it as it considers that more discretion can lead to less transparency and accountability.
  5. 51% of respondents considered that a comprehensive list of English qualifications would provide a better approach to assessing English proficiency rather than a list of countries.
  6. 52% of respondents supported a proposal to align the list of countries from which English schooling is accepted with that of Australia being (Australia, Canada (English speaking provinces), Ireland, New Zealand, South Africa, United Kingdom and United States).
  7. 55% of respondents were in favour of introducing a new pathway that recognises tertiary education combined with other time spent in an English speaking country.
  8. 59% of respondents supported increasing the minimum scores for those who must complete an English language test. Respondents agreed that the focus should be on an adviser’s English writing ability rather than their English speaking ability.
Group comments
1. There was discussion about the English language test. It was mentioned that the test is designed more for people who have studied English as a second language. There was a general feeling from the group that the way people acquire English as a first language is different from how a person would learn a second language. Consequently the test results may not accurately reflect a native speaker’s level of English competence compared with a person who has learnt English as a second language.
2. One option discussed was that the only countries on the list of countries used from which English schooling is accepted should be New Zealand and Australia only.
3. There was debate about the overall test scores and whether the scores should be higher in writing than scores for listening, reading and speaking. It was emphasised that advisers needed to be able to communicate well with their clients and INZ through written communication. The group considered that if parts of the test scores were increased the overall test score should however remain at 7.0.
IAA Comments
1. The Authority is grateful for the feedback received which will be helpful in making changes to the English language competency standard.

Communication initiatives in the year ahead
1. The Authority is developing a communications plan with the focus being on international education providers, international students and agents; employers and recruiters; travel agents; and migrant communities.
2. The aim of the plan is to increase awareness of licensed immigration advisers onshore and offshore, reinforce the requirements for education agents around the student exemption and remind education providers about their limits of work.
3. Fact sheets are available for education providers. They set out what an education provider should do when a student needs immigration advice.
4. The New Zealand International Education Conference (NZIEC) will be held in Auckland during August. The Authority will have a stall at this conference which will provide it with exposure to about 500 education providers.
5. Catherine will be speaking at a Pacific Immigration and Settlement information seminar in Timaru about the importance of using a licensed immigration adviser.
6. The Authority is also looking to reach employers, HR recruiters and travel agents to spread the message about licensed immigration advisers.
7. The Authority is continuing its campaign with migrant communities through advertising and promotional work in Indian and Filipino ethnic media and it is also keen to keep working within Pacific communities.
Group Comments
1. There was a suggestion that the Authority could also target unions, professional bodies and industry training organisations in order to reach individual employers, such as Federated Farmers, the Trucking Association and HRNZ.
IAA Comments
1. The Authority welcomes any ideas or suggestions that people may have about possible events that the Authority could have a presence at or newsletters where it can promote licensed immigration advisers.

Open Forum and topics for future meetings
1. There was some discussion about the progress that has taken place in preventing unlicensed activity overseas.
2. Catherine highlighted that after her trip to India during March, the Authority has since sent out 150 warning letters to Indian Education Agents to help combat the problem of unlicensed immigration advisers.
3. There is generally more awareness in parts of India about the need to use a licensed adviser. There are encouraging signs as INZ India is seeing more people seeking licensed advisers particularly for student visas and partnership applications.
4. The following topics were suggested for future meetings:
  1. International students
  2. Travel agents
  3. Supervision.
  4. INZ feedback on what advisers should be doing better.
5. Catherine thanked the group for attending the meeting.