ZW v Immigration Advisers Authority [2012] NZHC 1069 (17 May 2012)

Last Updated: 22 May 2012

INTERIM ORDER PROHIBITING PUBLICATION OF APPELLANT'S NAME AND FURTHER PROHIBITING PUBLICATION OF NAMES OF OR IDENTIFYING INFORMATION OF THE APPELLANT'S BUSINESS ASSOCIATES MENTIONED IN THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-005399 [2012] NZHC 1069

IN THE MATTER OF An appeal under s 85 of the Immigration

Advisers Licensing Act 2007

BETWEEN ZW Appellant

AND IMMIGRATION ADVISERS AUTHORITY

Respondent

Hearing: 27 April 2012

Appearances: Appellant in person

G Robins for the Respondent

Judgment: 17 May 2012

_{RESERVED JUDGMENT OF PRIESTLEY J}

This judgment was delivered by me on Thursday 17 May 2012 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Solicitors:

G Robins, Crown Law, Wellington. Email: [e-mail]

_{Copy to Appellant.}

ZW V IMMIGRATION ADVISERS AUTHORITY HC AK CIV-2011-404-005399 [17 May 2012]

Non-publication

[1] There would normally be no good reason to prevent the publication of the appellant’s name. However, counsel for the respondent advised the Court that there was a pending criminal trial in which an associate of the appellant is the accused. Interim orders prohibiting publication were made in the District Court and in this Court at the time of the first management conference for this appeal.

[2] Accordingly there is an order prohibiting publication of the appellant’s name and the names and any identifying information relating to the appellant’s business associates mentioned in this judgment until further order.

Introduction

[3] In response to concerns over the competency and practices of immigration advisers, Parliament enacted the Immigration Advisers Licensing Act 2007 (the Act). Section 3 of the Act states its purpose is to promote and protect the interests of “consumers” receiving immigration advice, to enhance New Zealand’s reputation as a “migration destination” and to regulate people giving immigration advice.

[4] The appellant was an immigration adviser who at all stages represented himself. He appeared before the Immigration Advisers Complaints and Disciplinary Tribunal (the Tribunal). The Tribunal released a decision on 29 March 2011 which imposed various sanctions on the appellant detailed later in this judgment.1 The appellant exercised his statutory right of appeal to the District Court. The appeal was dismissed by Judge M-E Sharp on 8 August 2011.2

[5] The appellant has appealed to this Court on purported matters of law.3 The issue on this appeal is whether indeed appealable questions of law are raised.

1 _{IL v ZW [2011] NZIACDT 10.}

2 _{ZW v Immigration Advisers Authority DC Auckland CIV-2011-004-000803, 8 August 2011.}

3 Infra [14] (where the right of appeal on a question of law is discussed).

[6] This is apparently the first appeal to this Court under the Act, as was the appeal before Judge Sharp in the District Court. For that reason it is sensible to set out the salient legislation.

Relevant provisions

[7] Section 34 of the Act establishes the respondent Authority. Its functions include administering the licensing regime,4 and investigating and taking enforcement action in respect of offences under the Act.5

[8] As might be expected with any statutory regime designed to promote and enforce standards for an occupational group, a disciplinary body was established. This is the Immigration Advisers Complaints and Disciplinary Tribunal.6 The Registrar of Immigration Advisers,7 is part of the Authority (s 34(2)(a)) and has a number of statutory functions. These include, so far as the Tribunal is concerned, the power to refer complaints received by the Authority to the Tribunal.8 In cases where the Registrar refers a complaint, he is obliged to gather such further information he thinks may have relevance to the complaint.9 The Registrar is not a member of the

_{Tribunal. The Tribunal has a chair.}10 _{For jurisdictional purposes the Tribunal}

consists of one member.11 There is power for other members, in addition to the chair, to be appointed.12

[9] The Tribunal has the normal power to regulate its procedures.13 However, s 49(3) makes it mandatory for matters and complaints before the Tribunal to be heard on the papers. Subsection 4(b) confers on the Tribunal a discretion to request a person’s appearance.

_{[10] Section 51(1) of the Act stipulates the disciplinary sanctions the Tribunal may}

4 _{Section 35(1)(b).}

5 _{Section 35(1)(f).}

6 _{Established by s 40(1).}

7 _{Appointed under the State Sector Act 1998.}

8 _{Section 45(2).}

9 _{Section 48(1).}

10 _{Section 40(2)(a).}

11 _{Section 40(3).}

12 Section 40(2)(b).

51 Disciplinary sanctions

(1) The sanctions that the Tribunal may impose are—

(a) caution or censure:

(b) a requirement to undertake specified training or otherwise remedy any deficiency within a specified period:

(c) suspension of licence for the unexpired period of the licence, or until the person meets specified conditions:

(d) cancellation of licence:

(e) an order preventing the person from reapplying for a licence for a period not exceeding 2 years, or until the person meets specified conditions:

(f) an order for the payment of a penalty not exceeding

$10,000:

(g) an order for the payment of all or any of the costs or expenses of the investigation, inquiry, or hearing, or any related prosecution:

(h) an order directing the licensed immigration adviser or former licensed immigration adviser to refund all or any part of fees or expenses paid by the complainant or another person to the licensed immigration adviser or former licensed immigration adviser:

(i) an order directing the licensed immigration adviser or former licensed immigration adviser to pay reasonable compensation to the complainant or other person.

...

[11] The statute confers a right of appeal to the District Court:

81 Right of appeal

(1) A person may appeal to a District Court against any of the following decisions:

(a) a decision of the Registrar to refuse to license the person as an immigration adviser:

(b) a decision of the Registrar to grant the person a limited or a provisional licence only, rather than a full licence:

(c) a decision of the Tribunal to cancel or suspend the person's licence: (d) any other decision of the Tribunal imposing on the person a sanction

of a kind referred to in section 51(1)(a) to (i):

_{(e) a decision of the Tribunal to reject an appeal under section 55.}

...

[12] The appeal right is clearly restricted to certain core areas. Decisions of the Registrar in respect of licences are appealable (this includes appeals from Tribunal decisions under s 55 against the Registrar’s decision to cancel a licence). Appealable too are decisions of the Tribunal cancelling or suspending licences or imposing sanctions.

[13] Section 84(2) provides that the District Court’s decision on an appeal is final.

[14] Section 85 provides a right of appeal to this Court, but only on a question of law when a party considers the District Court’s decision is erroneous in law. The case stated procedures of Part 4 of the Summary Proceedings Act 1957 apply.14

[15] Clearly the Tribunal will need to exercise considerable care as it operates within its statutory framework. Its powers in respect of licences and sanctions will impact on the personal and economic interests of practising and potential immigration advisers. The Tribunal can operate as a single person and must make its determination on the papers unless for some reason it exercises its s 49(4)(b) discretion. The rights of appeal to the District Court are limited. On procedural and natural justice issues, of course, the Tribunal’s decisions would be subject to judicial review under the Judicature Amendment Act 1972.

Brief background

[16] The appellant was employed by a company as an immigration adviser. He was licensed. The proprietor of the company, however, was not a licensed immigration adviser and was thus prohibited in terms of s 6 of the Act from providing immigration advice. The company also employed another licensed

[17] The complainant was British. He had formerly been a client of the company. He experienced immigration problems at Heathrow Airport, London where it would seem he was not able to board a New Zealand bound aircraft because of some difficulty with his visa. He telephoned the company. The company’s proprietor played the dominant role in the telephone conversation advising the complainant. Nonetheless the appellant and Mr X were parties to it.

[18] The company wrote to Immigration New Zealand with the result that the complainant obtained a visa and travelled to New Zealand. There followed a dispute over the reasonableness of the company’s fees.

[19] The complainant subsequently lodged a complainant with the Registrar. The

Tribunal became involved. A minute was issued by the Tribunal on 1 December

_{2010. The Tribunal’s provisional view, so far as the appellant was concerned, was:}

The appellant had put himself in a situation where his professional practice

_{was part of the unlawful provision of immigration advice by the company.}

The appellant allowed the company’s proprietor unlawfully to give

_{immigration advice in his presence.}

When the complainant questioned his fee the company’s proprietor, rather

_{than the appellant, or Mr X, dealt with the matter.}

The fee appeared to be gross overcharging and included a component for the

_{unlawful work performed by the proprietor.}

[20] In terms of the provisions of s 49 the appellant was given an opportunity to respond. He did so by letter.

[21] The Tribunal’s decision, dated 21 January 2011,15 concluded the appellant,

Mr X, and the proprietor were part of a joint enterprise which unlawfully provided immigration advice. Furthermore the appellant had failed to deal adequately with the complaint about fees. In reaching its conclusions the Tribunal narrated and considered the various explanations which the appellant advanced in his letter. The essential gravamen, however, of the conduct the Tribunal was investigating was not challenged.

[22] The Tribunal concluded that the appellant had been a party to breaching s 6 of the Act (the prohibition on providing immigration advice unless licensed). It also considered the appellant had breached various provisions of the Code of Conduct which had been developed and published by the Registrar pursuant to ss 37 and 38.16

[23] Having satisfied itself that the complaint against the appellant had been established, the Tribunal imposed a timetable on the appellant and the complainant to make submissions on the appropriate sanctions. The appellant made no such submissions.

[24] The Tribunal’s decision on sanctions was dated 29 March 2011.17 It referred by comparison to Mr X, who had been subject to sanctions both in respect of the complainant and in respect of a different matter. The Tribunal accepted the appellant had only been a party to “the initial phases of the misconduct engaged in by [the proprietor] and [Mr X]”. The Tribunal further referred to the s 3 purpose of the Act. It stressed the value of mentoring to a new member of the profession and the importance of required ethical and behavioural standards. The Tribunal concluded:

[34] Regardless, the conduct requires that the Adviser be in a professional environment where he has mentoring to gain the full appreciation of his professional obligations. He was a party to a serious breach of professional obligations. The breaches facilitated a person who has a lamentable history of abusing the trust of vulnerable migrants to have access to clients. The outcome was exactly what the Act is intended to prevent.

_{[25] The Tribunal regarded the appellant’s “secondary role” as being a mitigating}

16 The Code of Conduct must either be published or its approval notified in the Gazette; s 38(1)(a). The then operative Code was effective from 4 May 2008. It was replaced by a substantially identical Code on 29 November 2010.

17 Il v ZW [2011] NZIACDT 10.

[a] Censure.

[b] Cancellation of the appellant’s licence two months hence.

[c] An order preventing the appellant from re-applying for a full licence for 18 months.

[d] Payment of a $3,000 penalty.

[26] The Tribunal further ordered the appellant could not apply for a provisional licence during the same 18 month period without satisfying the Registrar that he would be working under the direct supervision of a fully licensed immigration adviser and would be supervised by a person to whom the Tribunal’s decision had been copied and for whom the Registrar had approved a written protocol setting out supervision terms.

[27] Subsequently the appellant applied for a rehearing. The Tribunal did not think it had jurisdiction to rehear the matter but, even if it had, considered the application lacked merit. The appellant, contrary to his earlier submissions to the Tribunal that his role was limited to assisting and overseeing the complainant’s case, now contended that he had no involvement whatsoever in the complainant’s immigration matter. The Tribunal understandably found this inconsistency and the appellant’s recasting of his role “implausible”. It declined to rehear the complaint.

District Court

[28] Judge Sharp reviewed the legislation and the background to the Tribunal’s decisions with care. She rightly commented that the appeal before her related to ss 81(1)(c) and (d).18

[29] The appellant was seeking, in the District Court, a total rehearing of the matters before the Tribunal. The Judge was of the view that s 81 conferred a limited right:

[25] I consider that had the legislature intended there to be a wholesale right of appeal against the decision of the Tribunal as to the complaint that it was adjudicating, then it would have said so directly and in an uncomplicated stipulation within s 81(1). I therefore consider this Court’s jurisdiction is only to hear an appeal against the decision cancelling [Mr W’s] licence and imposing other sanctions.

[30] Despite this view, the Judge allowed the appellant to expand on the grounds of his appeal and present further evidence, not in affidavit form but as submissions. The Judge was particularly concerned that the appellant was not legally represented and that English was not his first language. The Judge’s conclusion was that, had she been required to consider the merits of the complaint against the appellant, she would not have come to any different view from the Tribunal so far as the substantive complaints were concerned.

[31] On the issue of the sanctions imposed, in respect of which the Judge clearly had jurisdiction under s 81(1)(c) and (d), the Judge concluded the Tribunal’s sanction decision was correct and justified. Given the purpose and the scheme of the Act the appellant, by being part of a joint enterprise, had breached a number of the Code’s provisions; had additionally permitted the proprietor (as part of the joint enterprise) to provide unlawful immigration advice; and the Tribunal had not acted on any incorrect principle in the exercise of its discretion. Accordingly the Judge was not prepared to interfere with the discretion the Tribunal had exercised when imposing sanctions on the appellant.

Case stated on appeal

[32] Inevitably the right of appeal to the High Court conferred by the Act is limited to errors of law.19 Against the background and narrative set out in this judgment only two possible legal issues can arise. The first is whether the District

_{Court was correct in its interpretation of s 81(1) and in particular whether appeals}

19 Section 85.

from the Tribunal are limited to its powers covered by subss (c) and (d). The second issue is whether, in respect of the way in which Judge Sharp dealt with the appeal against the sanctions imposed by the Tribunal, any error of law was revealed.

[33] The Judge’s interpretation of s 81(1) was correct. Parliament has conferred a right of appeal to the District Court in respect of only the five s 81(1) categories of decisions made by the Registrar and the Tribunal.20 An immigration adviser can only contest on appeal the Tribunal’s decisions in respect of those five categories. There is no right of general appeal.

[34] Section 81 is in contrast to more extensive appeal rights conferred by statutes creating disciplinary bodies for other professionals and occupational groups.21

However, Parliament is certainly entitled to adopt a more stringent approach to appeal rights from the Tribunal if it so chooses. I see no warrant to give s 81(1) an expansive interpretation beyond its clear words.

[35] This approach accords with the view taken of s 81 (then cl 70 Immigration Advisers Licensing Bill) by the Select Committee. The Select Committee in its report to the House of Representatives considered that the cl 70 right to appeal decisions made under cl 43 of the Bill should be confined to decisions to impose sanctions, thereby excluding decisions taken by the Registrar to dismiss complaints (another option available under cl 43). 22

[36] In making this recommendation, the Committee clearly grappled with the issue of appeals from a substantive decision. There flows from its proposal an intention that the right of appeal provided for by cl 70 should be limited solely to sanctions and should not permit challenges to substantive matters, such as the decision to dismiss a complaint (an appeal from which would necessarily involve consideration of the merits). The Select Committee also noted the availability of

_{judicial review to challenge administrative decisions.}

20 _{Supra [11].}

21 See for example s 116 of the Real Estate Agents Act 2008 and s 253 of the Lawyers and

Conveyancers Act 2006, which provide a general right of appeal from the relevant disciplinary

bodies. Section 106 of the Health Practitioners Competence Assurance Act 2003 also provides a more expansive right of appeal than the Act.

22 Immigration Advisers Licensing Bill (270-2) (select committee report) at 15.

[37] The Committee’s position was endorsed by Parliament when it enacted cl 70 as s 81 without further amendment.

[38] When presented to the House, the Bill did not provide for the creation of a Tribunal. It was in fact the Committee’s recommendation that, in the interests of transparency, a new Tribunal be established. This recommendation required significant redrafting of the Bill in order to delineate the functions of the Tribunal and the Authority regarding complaints and disciplinary procedures.23 Again, this late addition of a Tribunal in the parliamentary process suggests a legislative intention to confer a limited rather than an expansive appeal right.

[39] Obviously, if the District Court, on perusal of the materials before the Tribunal (or in appropriate cases additional materials), reached the view that the Tribunal had been totally wrong in finding a complaint or charge established then justice can be done by quashing any sanctions imposed.

[40] Given that this appeal is the first time the High Court has examined the statute and s 81 I make two observations. The first is the absence of any general appeal right heightens the obligation of the Tribunal to ensure its decisions are correct. Particularly is this the case when it can sit with one member; when there is a statutory obligation for it to deal with complaints on the papers; and when the written English language skills of some immigration advisers before it may be limited. Issues of fairness and natural justice loom large in such situations. Certainly the High Court would not be slow to exercise its inherent and judicial

review jurisdictions should the need arise.24

[41] The second observation is closely related to the first. I consider it would be foolish for any immigration adviser who contests serious aspects of a complaint not to seek some form of legal advice. The consequences of complaints being upheld may well be severe. In passing the Act, Parliament has clearly intended to provide a system of competency, standards, and a Conduct Code to clean up an industry which

_{hitherto had been subject to much justified criticism. The Registrar and Tribunal}

23 _{Ibid at 11.}

24 Supra [15]. Judicial review was also highlighted by the Select Committee, supra [36].

have a Parliamentary mandate to enforce standards. The Tribunal has the appropriate range of sanctions to deal with shortcomings.

[42] Returning to Judge Sharp’s treatment of s 81, although she correctly identified the scope of the provision, out of an abundance of caution she dealt with the appellant’s case as if it had been a general appeal. She effectively upheld the Tribunal’s findings. In that situation no possible error of law in the Judge’s expansive treatment of the appeal before her could succeed.

[43] Nor is there any question of law which could properly arise out of the Judge’s treatment of the sanctions imposed by the Tribunal. Given the limited involvement of the appellant in the complainant’s immigration affairs (which the Tribunal accepted) and given too the fact that the appellant was an employee of the proprietor and might thus to some extent have been beholden to him it could have been argued that the sanctions imposed were stern. Certainly the Tribunal acknowledged the appellant’s lesser role. But the ability reserved to the appellant to obtain a provisional licence (provided he was working under supervision) and the effect of an

18 month “stand down” period, both point to the Tribunal trying to assist and

rehabilitate him.

[44] Unfortunately for the appellant, possibly because he was acting for himself, he made no attempt to express contrition. Nor did he produce to either the Tribunal or the District Court any information about the nature of his work, how he might be able to accommodate concerns in the short term, or other traditional mitigating factors. Instead he tried unsuccessfully to deny any culpability. In that situation there is no basis on which to interfere with the Tribunal’s stern sanctions.

[45] The Judge, as is apparent from the way in which Question 3 of the case stated is formulated,25 approached the appeal against the imposition of sanctions by the classical route of reviewing the exercise of a discretion. That is not wrong, but a review of a sanction (like a sentence appeal) must also entail consideration of the appropriateness of the sanction and whether or not it is excessive in the

_{circumstances. Although the Judge did not say so in so many words it is clear that}

25 Infra [46].

she regarded the imposed sanctions as justified in the appellant’s case.

Result

[46] The answers to be posed to the case stated by the District Court are thus self- evident The questions of law were:

1. Was the District Court correct to interpret s 81 of the Immigration Advisers Licensing Act 2007 as granting a right of appeal ... only against the 29 March 2011 decision which imposed sanctions on him (and not the 21 January 2011 substantive decision which upheld the complaint)?

Answer: Yes.

2. If the answer to the first question is “no” was the District Court correct not

to interfere with the Tribunal’s substantive decision?

Answer: No answer required but to the extent the District Court, out of an abundance of caution considered the Tribunal’s decision but declined to interfere, it was correct to do so.

3. Was the District Court correct the Tribunal’s discretion in determining the sanctions against [the appellant] should not be interfered with unless the Tribunal acted on a wrong principle, failed to take into account some relevant matter, took into account an irrelevant matter, or was plainly wrong?

Answer: Yes, subject to the requirement, on appeal, to assess whether the imposed sanctions are appropriate and not excessive.

4. If the answer to the third question is “yes” was the District Court correct to find none of those considerations applied?

Answer: Yes.

[47] As is apparent from the answers to the questions posed, the appeal must be dismissed. There is no discernible error in the District Court’s judgment which would engage s 85.

..........................................
Priestley J