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Adviser fined, and censured again

A Masterton immigration adviser has been ordered to pay almost $10,000 for committing “not less than nine unprofessional acts” while engaged to file a visa application.

In a decision published earlier this month, the Immigration Advisers Complaints and Disciplinary Tribunal found the now twice-censured adviser – Christopher McCarthy – breached the profession’s code of conduct, with the most serious breaches involving a lack of due care and diligence, coupled with a failure to communicate with the complainant.

The tribunal said over the course of about two years, McCarthy filed three expressions of interest for an investor residence visa application on behalf of the complainant.

“The second and third expressions were made without instructions. Mr McCarthy also failed to communicate with Immigration New Zealand or the complainant for long periods.”

In June last year, McCarthy was censured, fined $4000, and banned from getting a licence for two years after “deliberately deceiving” an overstayer about her visa application status.

He was ordered to refund the client’s $4025 and pay $2000 in compensation.

The most recent complaint against McCarthy was upheld by the tribunal at the end of last year, with McCarthy found to have made several breaches of the Licensed Immigration Advisers Code of Conduct 2014.

In the most recent decision, the tribunal noted McCarthy’s mental ill-health at the relevant time was a mitigating factor in determining its sanctions.

In a summary of events, the tribunal said the complainant and her family – Bulgarian nationals – engaged McCarthy, the director of Masterton-based Corporate Migration NZ Ltd, in their bid to migrate to New Zealand on November 20, 2019. McCarthy had a licence at the time.

On December 17, 2019, McCarthy filed an expression of interest with Immigration New Zealand under its investor category, which resulted in an invitation for the complainant to apply for residency.

However, due to pandemic lockdowns in Bulgaria, the supporting documents were delayed, and the four-month deadline passed without an application.

McCarthy was asked to continue with the application on the understanding that an extension had been sought and an application eventually made.

On July 14, 2021, McCarthy filed another expression of interest with Immigration New Zealand without informing the complainant or seeking further instructions.

Immigration New Zealand attempted to contact McCarthy about missing information but was unsuccessful and, on November 18, 2021, declined the expression of interest.

The tribunal said McCarthy filed the third and final expression of interest on March 11, 2022, “also unknown to the complainant” and without instructions.

It was successful, again, and Immigration New Zealand invited a residency application, but by this time McCarthy was no longer acting for the complainant.

“It is not known by the tribunal whether a residence application was filed.”

The tribunal found McCarthy guilty of several breaches of the code of conduct, including failure to exercise due diligence in ensuring the second expression was completed correctly, failure to provide a fair and reasonable refund, and failure to follow his internal complaints procedure.

The Registrar of Immigration Advisers submitted to the tribunal that McCarthy’s conduct fell well short of professional standards and caused significant adverse consequences for the complainant, noting it was McCarthy’s second appearance before the tribunal.

In addition to censure and a $4000 penalty, the registrar said appropriate sanctions would include a full refund of the $10,366.66 worth of fees paid by the complainant for McCarthy’s advice and a refund of Immigration New Zealand’s $5070 application fee.

The tribunal received no submissions from the complainant or McCarthy.

The tribunal said “beyond delay” there was no proof that McCarthy’s failings had any serious effect on the complainant’s immigration prospects, and noted that a clinical psychologist reported McCarthy was feeling “entirely overloaded, burnt out, and was consumed with stress and anxiety” for much of 2021, and that he was remorseful, confused, and blaming himself.

The tribunal said the maximum penalty for misconduct was $10,000.

The tribunal did not direct McCarthy to refund the full fees paid by the complainant. However, it said he was not entitled to keep the “windfall” $5070 advance for Immigration New Zealand’s fees.

The tribunal censured McCarthy, fined him $4000, and directed him to refund the complainant’s $5070.

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Mary Argue
Mary Argue
Mary Argue is a reporter at the Wairarapa Times-Age with an interest in justice and the region’s emergency services, regularly covering Masterton District Court, Fire and Emergency and Police.

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