Protecting “Vulnerable” Advisers
The Immigration Department and most of our clients appreciate how seriously we take our jobs, the importance we attach to getting things right and the professional pride we feel every time we can tell a client ‘visa approved, hope you enjoy your new life’. However, that is not an externally driven process; it has always been something that we demand of one another as Advisers and is the reason we have watertight internal systems to ensure two sets of ‘licensed’ eyes check every strategy we are retained to execute and visa application that leaves this office.
As part of our licencing, we are required to operate robust systems and we had these in place long before this industry was regulated and it became mandatory. I suspect this was part of the reason why, when the Immigration Advisers Authority was being established, I was asked to sit on the Government’s working group to advise on the appropriate structure for it and then was invited to sit on the reference group during its first year of operation. It is fair to say I believed that those of us who believe in the simple adage of ‘treat others as you’d like them to treat you’ (with a pinch of caveat emptor), these regulations controlling everything we do was not required. I have come to accept, however, that not all Advisers are as good, honest and professional as we are.
I never thought that the IAA might, in a roundabout way, protect us from our own clients but as this piece demonstrates, an unintended consequence of making sure our systems are extremely robust is that we are protected from the rare client that might have questionable ethics.
We have only ever had two complaints filed against us in the ten years we have had licenses (during that time we have processed in excess of 10,000 visa applications) and both have been thrown out as baseless.
While both in my view were always destined to fail, the second was an interesting test in my mind of whether the Registrar of Advisers would come down on our side and accept that no company does more to ensure that their processes and systems are possibly the most robust in the industry, but that we cannot be held responsible for clients that choose to be less than honest with the evidence we are asked to present on their behalf.
During the investigations into the first complaint, our internal processes were scrutinised, tested and stood up to very close examination, and the complainant thoroughly discredited given she was clearly the master of her own misfortune.
A few years ago we agreed to represent this particular client who, like most of you reading this, required a job offer to secure a resident visa under the skilled migrant category. Having represented other members of her family and having delivered to them everything we’d promised, this client came to us to replicate that outcome.
My partner assessed her eligibility whilst she was in South Africa and considered matters beyond her potential points score as well as (as we always do) how employable she might be at the time within the NZ labour market. A strategy was presented to her and the factors for success all carefully explained in detail in writing before the process began.
She came to NZ, but struggled to get work (this was around the time of the GFC). After several months she secured employment as a ‘Store Manager’. Before suggesting she accept the job, we got a copy of the proposed job description, the draft employment contact, and we spoke to the employer to satisfy ourselves that the job itself ticked all the Government’s boxes for being ‘skilled’. We were satisfied – based on the written advice we received..
We filed a work visa based on this information and it was approved and issued. The client began working. To be approved, INZ had to accept that it was a skilled position based on the evidence presented, which they clearly did having taken the evidence at face value. So far, so good, and no surprises.
A skilled migrant residence application followed. INZ carried out routine verification on the job by way of a telephone call to the client. She panicked (at the time we just presumed it was because she was very highly strung) and terminated the call to INZ and then called my colleague handling her case. She wanted to know what she should tell INZ when they called back. Although he was confused by the question his advice was simple and transparent. Tell the truth. According to the employment agreement and job description your job is skilled, so answer whatever questions they put to you.
When INZ called back, the description that she gave of her duties differed materially to the written job description she had presented us. We read the interview transcript later provided by INZ and the evidence was irrefutable. While she was busy shooting herself in the one foot, her employer had been busy blowing off the other one. He had received some written questions from INZ, which had corroborated her version of what she told INZ on the phone that she actually did all day – not what her employment contract and job descriptions said she was actually being employed to do.
While we did what we could to get her out of the mess she had just created through being less than honest with us about the true nature of her job, the application was understandably declined.
She demanded her money back from us and threatened a complaint against my colleague if we didn’t. She was basically accusing us of negligence (saying that we didn’t prepare her for the telephone interview with INZ) and incompetence (saying that we should have been able to make INZ realise her responses on the phone were contestable – they weren’t).
I knew that we had been rigorous in our assessment of the job she told us she’d been offered, INZ had agreed that based on that contract and job description the job was skilled and gave her a work visa, so the only reason her residence case was declined was because the truth about her position was apparently different to the written information we had advised her on.
I refused to refund a cent and invited her to go through with her threat to file a complaint with the industry regulator. She did.
My colleague didn’t thank me for it and he hardly slept for the next 18 months as we waited for the IAA Registrar -not known to be kind on Advisers – to rule on the complaint. In my view, not unsurprisingly, the complaint was dismissed following submissions from us presenting file copies (which we were more than happy to do) and explaining that in the end we have to rely on the honesty of clients and cannot base our advice on anything but the evidence they provide us.
We asserted that the client had clearly misrepresented her actual daily tasks and responsibilities (as had her employer) in the employment agreement and that they had been caught out. We can hardly be held responsible for that. The IAA agreed and the case was dismissed with the observation our systems are very robust and the appropriate checks carried out and records of all that took place were kept.
What I didn’t know is that the client, who it seems must be a sucker for punishment, didn’t let it lie. Unbeknownst to us she then filed an appeal against the decision of the IAA not to uphold her complaint with the New Zealand Immigration Advisers Complaints and Disciplinary Tribunal.
That too was dismissed as lacking foundation.
The Tribunal ruled it is not for us to check the veracity of the offer unless we have reason to believe it might not be genuine or was misleading. We had no reason to presume the client or her employer were being anything less than 100% honest with us. Our internal checking and QA systems meant that three of us had sat together, reviewed the job offer and decided that it was skilled.
The reason I am writing about this is that there are lots of Advisers out there in the market and they are not all as ethical nor competent as those who work at IMMagine on both sides of the Tasman Sea. Equally not all clients are honest, either, and this was an interesting test of whether we could be held responsible for the actions of a rogue client.
In its decision (2016-NZIACDT -66 Edana Blieden vs Registrar of Immigration Advisers which you can read here) the Chair of the independent authority found that IMMagine ‘had robust review processes in place’ and found the complaint was without foundation and the appeal got the short shrift it deserved.
The Chair raised the obvious question; given the client went on to secure a resident visa when employed in the ‘same’ position with the same employer in the same location through a second and subsequent application, how was INZ able to approve it?
That is a very good question and one we also asked Immigration New Zealand. How could they approve a second application when they found the first time they looked into the job offer it was not skilled? What changed? The employer didn’t, that much we know. The client advised the title was the same.
I asked INZ to audit the decision to approve the later application and they said, without showing me any evidence, that both decisions were correct. That points to only one explanation – the second job offer was modified and INZ, for reasons only they can explain, accepted it. My suggestion INZ might want to investigate thoroughly to ensure the client and/or her employer hadn’t filed misleading information was not taken any further. I suspect INZ didn’t want to investigate because it could have gotten very embarrassing for them as well.
In the end we can only control our own systems and processes and ensure our quality assurance is the best in the business.
That means ensuring nothing leaves this office that is not 100% accurate. I have always insisted that a second licensed Adviser check all case strategies before we agree to represent any clients, all temporary visa applications, skills assessments, qualifications assessments, all online EOIs, and all Resident Visa arguments and put their name to it on the file, as one seemingly small oversight can be the difference between success and failure. Two pairs of eyes is what leads to our success rate of almost 100% on visa applications.
Although there is no accounting for clients that mislead us or are doing jobs different to what their employment contract says, it is somewhat reassuring to see the Regulator helping to protect ‘vulnerable’ immigration Advisers, even though that isn’t their role.
Unfortunately in this social media driven world we are always at risk that a disgruntled client who shot her own feet off has the opportunity of running us down and we don’t have any way of countering it.
Her complaint to the IAA is part of the public record as is her appeal against that decision so I feel quite justified in writing about it.
The takeaway is both the Immigration Advisers Authority registrar confirmed in dismissing the complaint that the quality of the systems at IMMagine is the highest possible quality, that our QA process is robust and, in the end, clients trying dodgy things cannot hide behind us – they can get caught as INZ carries out its verification processes (that is, after all, what they are designed to do). Should they try something less than honest, they cannot blame the Adviser who acted in good faith and had the records to prove it. This was reinforced by the independent Chair of the Immigration Advisers Complaints and Disciplinary Tribunal.
Apart from being honest, it pays to stick with Advisers with robust assessment and detailed checking systems, track record of success and water tight QA processes, as we do.
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