The Immigration Advisers Complaints and Disciplinary Tribunal (Tribunal) was established under section 40 of the Immigration Advisers Licensing Act 2007. The Tribunal hears complaints about licensed immigration advisers referred to it by the Immigration Advisers Authority. It also hears appeals against decisions of the Registrar of Immigration Advisers to cancel the licence of an adviser or to reject a complaint.
This article will review two decisions of the Tribunal on the disciplinary threshold for licensed immigration advisers. Both of the decisions consider clause 1 of the Licensed Immigration Advisers Code of Conduct 2014 (Code of Conduct) which provides a “licensed immigration adviser must be honest, professional, diligent and respectful and conduct themselves with due care and in a timely manner.”
The case of DMX v Guich [2020] NZIACDT 19 involves a licensed immigration adviser who made a single mistake in understanding or applying policy or legislation. The error had a negative impact on a client and resulted in a complaint being upheld.
The adviser represented the complainant on an unsuccessful residence application. The adviser then attempted to file an appeal with the Immigration and Protection Tribunal but it was not accepted as it had been lodged out of time. The adviser had miscalculated the timeframe in which to lodge the appeal and consequently the complainant lost her right to appeal to the Immigration and Protection Tribunal.
The adviser acknowledged he had made a mistake in calculating the timeframe within which to lodge the appeal, but he maintained that “a one-off human error” of this nature “cannot amount to negligence or a breach of professional standards.”[i] The Tribunal disagreed with this assertion and instead concluded that:
…there is no principle of law that an isolated act cannot amount to a breach of a professional standard or obligation. There is no entitlement to one mistake. A single mistake by a professional may, or may not, be a breach of a professional standard of conduct. That depends on whether it is a mistake which a competent, reasonable, prudent, diligent practitioner could make. If the mistake can be described as one any such practitioner could make, then it might be seen as an excusable human error. However, an error, albeit isolated, which such a practitioner would not make, amounts to a professional breach.[ii]
Accurately calculating an appeal period is a critical function of an adviser given that the consequence of getting it wrong is that a client may lose the chance to obtain residence.[iii] The Tribunal found that the adviser failed to exercise due care and diligence in breach of clause 1 of the Code of Conduct.[iv] The adviser was cautioned, ordered to pay the Registrar $1000 and to pay the complainant $1600.[v]
The case of HT v Shaikh [2021] NZIACDT 20 involves a service delivery failure by a licensed immigration adviser. The adviser failed to lodge a visa application on time and this had a negative impact on the client which resulted in a complaint being upheld.
The complainant was a returning client of the adviser and made contact about renewing their visa in August 2020. The complainant provided supporting documents to the adviser on 22 September 2020 and signed a written agreement on 23 September 2020. On the evening of 25 September 2020, the day the complainant’s visa would expire, the adviser attempted to lodge the visa application online. The adviser was unable to lodge the new application as one document was not in the correct format. Consequently, the complainant became unlawful and initiated a complaint.
The adviser acknowledged that he had made a mistake in missing the deadline[vi] but maintained that he promptly notified the complainant of the error and then attempted to remedy it.[vii] The adviser argued that his response was “professional and ethical” and his behaviour “did not cross the disciplinary threshold.”[viii]
However, the Tribunal found that in leaving it to the evening of 25 September 2020, the day the complainant’s visa would expire, to check the documents and then failing to check if the missing document had been sent, “Mr Shaikh was not professional or diligent, nor did he exercise due care.”[ix] The Tribunal did “not regard Mr Shaikh’s conduct as mere inadvertence, administrative oversight or as minor.”[x] The Tribunal noted:
There were multiple failures. The first was waiting more than 24 hours to assess the documents and alert the complainant to the missing document. Given the urgency, he should have done this earlier in the day. Next, he made no arrangement with the complainant and/or his staff as to how the correct document would be received after hours in time. Finally, he turned off his laptop and forgot about the complainant’s imminent deadline after only 30 minutes.[xi]
The Tribunal also highlighted that as a result of the adviser’s conduct, there were “serious consequences” for the complainant, in that he became unlawful in New Zealand.[xii] The adviser was found to have breached clause 1 of the Code of Conduct. He was cautioned but not otherwise sanctioned.[xiii]
It should also be mentioned that a second ground of complaint was brought against Mr Shaikh, that he failed to refund the Immigration New Zealand visa application fee in breach of clause 1 of the Code of Conduct. The Tribunal determined that the adviser had not been professional and diligent when he initially failed to refund the application fee, but that this did not reach the disciplinary threshold.
Both of these decisions involved experienced advisers who were before the Tribunal for the first time. While their actions may be viewed as one-off errors, the Tribunal still found that their actions crossed the disciplinary threshold and the complaints were upheld. It is interesting to observe that both complaints involved missed immigration deadlines that resulted in negative consequences for clients. The Tribunal has rightly put considerable weight on the effect of the advisers’ actions on the complainant in both cases. These decisions highlight the importance of immigration advisers carrying out their core duties of lodging visas and appeals in a timely manner. Failing to do so may well result in disciplinary action
Appley Boyd works as a licensed immigration adviser and is the Academic Leader (Immigration) at Toi Ohomai Institute of Technology. She completed her LLB at the University of Sydney in 2001 and was admitted as a lawyer of the Supreme Court of New South Wales in 2006. She has previously worked for the Fiji Legal Aid Commission and Immigration New Zealand. She became a licensed immigration adviser in 2014 and has been working as an adviser ever since. Along with managing the Graduate Diploma in New Zealand Immigration Advice qualification, she also runs her own business, Star Immigration. Connect with Appley via email or LinkedIn
[i] DMX v Guich [2020] NZIACDT 19 at [3]
[ii] At [53]
[iii] At [54]
[iv] At [62]
[v] See the sanctions decision – DMX v Guich [2020] NZIACDT 30
[vi] HT v Shaikh [2021] NZIACDT 20 at [47]
[vii] At [51]
[viii] At [51]
[ix] At [64]
[x] At [73]
[xi] At [73]
[xii] At [74]
[xiii] See the sanctions decision – HT v Shaikh [2021] NZIACDT 24