NMS v Mercado [NZIACDT 51]

This complaint was laid by a client who had sought residence through the Skilled Migrant Category.  The factual background involved a businessman who owned two companies (companies “A” and “B”) which owned a café and restaurant.

The client initially applied for residence based on a store manager role with company A, but this was declined on the basis that the position did not match that for skilled employment.  The adviser then made a fresh Work Visa application based on a personal assistant position with company B.  The application was granted subject to the usual conditions regarding only working for company B as a personal assistant. 

The adviser came up with a structure whereby company A contracted the services of the client to company B, so that she could carry out inventory control services for that company.  The adviser understood that as technically the client was only employed by company B, she was compliant with her Visa conditions.  INZ became aware of the situation and subsequently declined the residence application because the client had not adhered to her Visa conditions.  The outsourcing arrangement did not overcome the fundamental difficulty that her Visa only allowed the client to work as a personal assistant for company B.

A further Work Visa application was declined, as was an appeal against the decision to decline the Residence Visa.  The would be migrant and her family had to return to the Philippines. 

The Tribunal found the adviser had failed to exercise the required level of skill and care in not advising the client that the outsourcing arrangement would not met her Visa conditions.  The Tribunal also took the view that the adviser lacked due care in not seeking clarification from INZ regarding the arrangement. 

It is apparent from the decision that the adviser had subsequently taken appropriate advice and put in place a number of practices and procedures to ensure that the same situation did not arise again.  This included seeking specialist and external advice to best protect the client’s interests.  The adviser was censured and directed to pay a fine of $2,000 together with compensation of approximately $7,400. 

This decision reinforces the obligation on advisers to recognise the limits of their knowledge and expertise, and to seek appropriate specialist advice when issues arise that they are not qualified to deal with.  This is particularly the case where novel or complicated arrangements are proposed in an employment setting.  The Tribunal also noted that the adviser could have sought clarification from INZ, but in our view the first step should be satisfying yourself as to the appropriateness of the arrangement.

We are well placed to provide expert advice to immigration advisers covering a wide range of issues which arise out of the immigration process, particularly with regard to employment or business arrangements.

To discuss this topic, or any other immigration related issues, please feel free to contact me
at Marty.Logan@pittandmoore.co.nz.

Disclaimer: This article is for information purposes only. It does not constitute legal advice.