Auckland, May 25, 2019
A New Zealand licensed Immigration Adviser (Mr JS), had a complaint brought against him by a client, an applicant for a long term business visa.
Apart from the routine negligence, bad advice and so on, these allegations were serious; they included fraudulently providing false documents to Immigration New Zealand (INL), without the applicant’s knowledge.
The applicant also alleged that false business plans had been supplied to INZ, and that his signatures had been forged on some of the documents.
While the Immigration Adviser’s Authority (IAA) was investigating into the matter, another complaint was made by a client levelling serious charges that letters and audit reports, supplied on her behalf to INZ, were fraudulent and without her knowledge.
She also alleged to have been asked by the Adviser to sign on blank application forms.
An overseas agent was alleged to have acted in connivance and under the control and ownership of Mr JS, in perpetrating the alleged conduct.
Both the complaints appeared similar in nature, conduct, and the alleged breaches.
The Adviser, in his reply to the Authority, refuted the allegations made by both the complainants.
Cases go to Tribunal
Noting the seriousness of the allegations, The Registrar referred the complaints to the Immigration Advisers Complaints and Disciplinary Tribunal (IACDT).
The Registrar also filed the statement of claim and extensive supporting documents.
The allegations and the offence, if proven, could make the guilty liable for an imprisonment for a period of not exceeding seven years and/or fine not exceeding $100,000.00.
The Tribunal noted the grounds of negligence, incompetence, incapacity, dishonest or misleading behavior, and breach of the code of conduct that can be made against an Immigration Adviser as set out in the legislation.
Mr JS engaged Auckland based Barrister & Solicitor Gurbrinder Aulakh to defend the allegations and the complaint before the Tribunal (IACDT).
The Parties were required to file the detailed evidence and submissions.
Mr Aulakh filed comprehensive submissions defending his client, while casting doubts on the credibility of the complainant. He also pointed to the provisions of the Law regarding the inadmissibility of some of the evidence relied upon by the complainant.
After going through the detailed documents, affidavits and submissions, the Tribunal accepted Mr JS’s belief that the company work was only of clerical or interpretation and translation nature.
The Tribunal absolved Adviser Mr JS of the serious allegations of dishonesty or fraud. It then invited submissions from the Parties on the lesser charge of whether the work carried out by the staff of the company constituted immigration advice.
The Registrar strongly contended that it did, while the Immigration Adviser believed it did not.
Lesser Charge upheld
The Tribunal upheld the lesser charge that the Immigration Adviser Mr JS had breached the code by allowing unlicensed persons to provide services which only a licensed person could provide.
It noted that the Immigration Adviser, by not engaging directly with the client, failed to obtain and carry out the lawful instructions of the client and perform the services in a professional and diligent manner.
However, the Tribunal, in one of the two complaints, observed that Mr JS did not knowingly or recklessly act contrary to the legislation.
The Parties were again invited to file submissions on sanctions.
While the Registrar contended that Mr JS should be censured and that financial penalty and payment of costs should be imposed, Mr Aulakh argued against imposing of any penalties to his client, and stated that Immigration Adviser JS’s license had already expired and that he had now retired.
The Tribunal declined to impose any financial penalties, but censured the Adviser preventing him from applying for a license for two years.
It also declined the Registrar’s request to award it any costs of the investigation.