Fitness for licensing

Fitness requirements

Under section 15 of the Immigration Advisers Licensing Act 2007 (the Act) the Registrar of Immigration Advisers (the Registrar) must be satisfied that an applicant is not prohibited from licensing and is fit to be licensed under sections 16 and 17 of the Act.

The Registrar bases the fitness decision on information from the applicant, a New Zealand Criminal Record History from the New Zealand Ministry of Justice or an equivalent international agency and any other relevant information.

Prohibited from licensing

Section 15(1) of the Act states that an applicant is prohibited from licensing if they:

• are an undischarged bankrupt
• are prohibited or disqualified under any of the provisions of sections 382, 383, or 385 of the Companies Act 1993 (or any corresponding provision of the Companies Act 1955) from managing a company
• have been convicted of an offence against the Immigration Act 2009, the Immigration Act 1987 or the Immigration Act 1964
• have been removed or deported from New Zealand under the Immigration Act 2009, the Immigration Act 1987 or the Immigration Act 1964
• are unlawfully in New Zealand.

Section 15(2) of the Act states that persons who hold or have held any of the following offices or employment are prohibited from being licensed while holding the office or employment or at any time within 12 months after leaving the office or employment:

• Ministers of Immigration and Associate Ministers of Immigration in the New Zealand Government.
• Any immigration officer, visa officer, or refugee status officer (as defined in the Immigration Act 1987).
• Any immigration officer or refugee and protection officer (as defined in the Immigration Act 2009).

The Registrar has no discretion to licence a person prohibited from licensing.

Restricted from licensing

Section 16 of the Act identifies persons who are restricted from licensing and establishes a presumption against licensing.

The Registrar can overturn this restriction if satisfied that the nature of the offence or matter that brings about the restriction is unlikely to affect adversely the applicant’s fitness to provide immigration advice.

The following persons are subject to a restriction on licensing:

• Persons who have been convicted, whether in New Zealand or in another country, of a crime involving dishonesty, an offence resulting in a term of imprisonment, or an offence against the Fair Trading Act 1986 (or any equivalent law of another country).
• Persons who under the law of another country:               
  • are an undischarged bankrupt
  • have been prohibited or disqualified from managing a company
  • have been convicted of an immigration offence
  • have been removed or deported from the country.
• A person to whom Section 15(1)(a) or (b) has applied in the past.

Other matters relevant to fitness for licensing

Section 17 of the Act sets out other matters that the Registrar may consider when considering the fitness of an applicant:

• Any conviction, whether in New Zealand or in another country, for an offence of a kind other than those referred to in sections 15 and 16.
• Any disciplinary proceedings, whether in New Zealand or in another country, and whether in relation to the provision of immigration advice or in relation to the conduct of any other occupation or profession, taken or being taken against the person (including any past cancellation or suspension of a licence under this Act, or any non-compliance with any sanction imposed under this Act).
• Whether or not the person is related by employment or association to a person to whom a licence would be refused under sections 15, 16 or 17.

Fitness for licensing for an initial application

The Initial Licence Application form requires the applicant to answer questions about their fitness for licensing and in some circumstances provide further information:

• Questions 1 to 7 require the applicant to declare whether they meet any of the criteria for prohibition under the Act. An applicant is prohibited from applying for a licence if they answer yes to any of the questions (and the Criminal Records (Clean Slate) Act 2004 does not apply) and should not submit an application.
• Questions 8-10 require the applicant to declare whether they meet any of the criteria for restriction under the Act. The Registrar requires applicants to provide full details of the circumstances surrounding the relevant offence or matter.
• Questions 11, 12 and 15 require the applicant to declare whether they meet any of the criteria under section 17 of the Act. Applicants are required to provide full details of the circumstances surrounding the relevant offence or matter.

If the applicant has answered yes to any of questions 7 to 12, or 15, the Authority will carry out a fitness assessment.

As part of this assessment, the Authority will consider information supplied with the application and if necessary seek further information directly from the applicant or consent from the applicant to seek information from third parties.

In the event there are any concerns arising from information supplied, the Authority will inform the applicant of these concerns and provide them with an opportunity to comment.

The application will be refused in the event the applicant does not pass the fitness assessment.

Fitness for licensing for renewal, upgrade or reapply

Fast-Track Renewal, Inspection Renewal, Upgrade and Reapply application forms all require the applicant to complete a fitness for licensing questionnaire and answer questions about their fitness for licensing and in some circumstances provide further information:

• Questions 1 to 7 require the applicant to declare whether they meet any of the criteria for prohibition under the Act. An adviser is prohibited from applying for a licence if they answer yes to any of these questions (and the Criminal Records (Clean Slate) Act 2004 does not apply) and should contact the Authority immediately to surrender their licence.
• Questions 8-15 require the applicant to declare whether they meet any of the criteria for restriction under the Act. The Registrar requires advisers to provide full details of the circumstances surrounding the relevant offence or matter.

If the applicant has answered yes to any of questions 7 to 12, or 15, the Authority will carry out a fitness assessment.

If an applicant has a complaint pending before the Immigration Advisers Complaints and Disciplinary Tribunal, they will be required to answer yes to question 12. If an applicant then answers yes to either question 13 (b) or (c) they will be required to provide the relevant information requested.

As part of the fitness assessment, the Authority will consider information supplied with the application and if necessary seek further information directly from the adviser or consent from the adviser to seek information from third parties.

In the event there are any concerns arising from information supplied, the Authority will inform the adviser of these concerns and provide them with an opportunity to comment.

The application will be refused in the event the adviser does not pass the fitness assessment.