Personal accountability of Immigration Advisers under the Code of Conduct

One of the fundamental obligations of Immigration Advisers, both under the Immigration Act and the Licensed Immigration Advisers Code of Conduct, is to ensure personal compliance with the Code’s requirements.

Not only does this require the adviser to personally give any immigration advice, but they also must personally explain the contractual arrangements with their client and their obligations under the Code.

That personal touch!

The importance of this obligation was reinforced recently in a High Court decision upholding an Immigration Advisers Complaints and Disciplinary Tribunal finding against an adviser (Immigration Advisers Authority v Sparks [2016] NZIACDT 27). In this case, the adviser was based in New Zealand and he assisted Filipino workers to obtain New Zealand jobs and Work Visas. In doing so, he relied on a Filipino recruitment agency to interview the Filipino workers and complete documentation, including visa application forms.

The adviser argued that he was able to delegate these functions to the Filipino agency (claiming that under Filipino law the functions had to be performed by a local person).The adviser had no personal contact with the workers until after they had arrived in New Zealand.

The Tribunal did not accept this argument and this view was confirmed by the High Court. The adviser was found to be in breach of several provisions of the Code including not performing his services diligently nor making the client aware of the Code of Conduct and the contractual terms.

In addition, the adviser was found to have engaged in dishonest or misleading behaviour in breach of the Immigration Act, by signing a declaration on the form certifying that he had completed the form and the applicant had agreed the information provided was correct.

It was noted that when the adviser did not have an active and personal role in completing the documentation there was a risk of incorrect information being supplied to Immigration New Zealand and it was not accepted that the adviser could “quality control” the information remotely.

For clients based overseas the adviser had to make personal contact through Skype or other means of personal communication (using an interpreter, where necessary).

Implications for Licensed Immigration Advisers

Advisers can delegate clerical work to unlicensed persons, however recent Tribunal decisions have made it very clear that this must only involve very basic data recording type of work. It is directed at administrative type tasks and the unlicensed person can have no role in assisting a person to fill in a form by telling them what is required or seeking relevant information.

So to make sure you comply, check your current business practices and procedures against the legal requirements, keep abreast with the developments in this area as they have the potential to have an impact on business operations, and if in doubt or if you have any questions, seek legal advice.

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