A Chinese couple who lost $175,000 in a property deal connected with a $50,000 immigration application have proven the adviser who handled their application flouted his legal obligations.

The Immigration Advisers Complaints and Disciplinary Tribunal ruled last month that licensed immigration adviser Yue Sun, also known as Curt Sun, had breached the industry’s Code of Conduct when he arranged the contract while working for Auckland’s Heytour Migration Ltd in 2018.

The tribunal, which is yet to decide on penalties, found Sun guilty of allowing unlicensed staff to advise clients and obtain their instructions, and of failing to ensure a written agreement contained his name and licence number.

A Chinese national, who has name suppression and identified only as II, complained to the Immigration Advisers Authority in May 2022, alleging the breaches, which were referred to the tribunal in October.

His wife, ZA, came to New Zealand in 2015 to accompany their son who was studying and in 2018 she signed a written contract with Heytour Group Holding Ltd to handle an application for a New Zealand entrepreneur resident visa concerning a start-up project in the tourism industry.

The agreement, which cost $50,000 and was signed on behalf of Heytour by an unlicensed employee - not Sun, stipulated the couple had to buy a property from a related company, which they did.

They purchased a unit for $571,000 but after the visa application was withdrawn, they had no use for the property and so sold it for $396,000, a loss of $175,000.

The decision said that after an assessment of the paperwork in 2019, Immigration New Zealand wrote to II, care of Sun, setting out numerous concerns with the application and inviting him to provide further information.

Later that month, another unlicensed Heytour employee based in China, rang II to advise the projected income was not satisfactory and stated a withdrawal request would need to be signed.

II signed it and returned the document to Sun who forwarded it to Immigration NZ.

The complainant was formally advised by the agency in December 2019 of the application’s withdrawal.

While the couple were informed of problems with the application, II told the tribunal, there was no written communication from the unlicensed staff or Sun explaining the issues.

He claimed the application was withdrawn without consent and Heytour or Sun “never informed or discussed with us” why the withdrawal request was made.

Heytour refused to provide a refund or compensation despite the couple submitting an unlicensed staff member, who “strongly recommended” the entrepreneur visa, verbally agreed to return the $50,000 but later reneged.

“They found that [the unlicensed staff member’s] real purpose was to sell a property at a price higher than the market, irrespective of the success of the immigration project,” the tribunal’s decision stated.

Sun explained since II lived in China and due to the time difference, staff would contact him to convey the adviser’s instructions and collect information.

According to Sun, II was aware he was the immigration adviser and that staff always emphasised when passing on information that it had come following discussions with Sun.

He submitted the complainant preferred to contact staff via a WeChat message system rather than him and alleged it was the couple’s decision to withdraw the application.

A statement of complaint was filed with the tribunal, which decides cases on the balance of probabilities, in October 2022, and no submissions were received from Sun or the complainant.

Transcripts of communications with the unlicensed staff were received from the complainant but Sun was not able to produce evidence of any communications with the couple.

The tribunal ruled it was implausible that Sun couldn’t provide one example of communication and had not engaged in the process.

“Sun has an obligation to provide his explanation to the Tribunal. If he does not, an adverse inference can be drawn.”

It found Sun delegated all engagement to unlicensed staff and was guilty of the breaches.

“He failed to personally advise the complainant and obtain his instructions,” the decision stated.

“Mr Sun knew what the staff were doing and permitted them to work directly with the complainant beyond merely clerical work, contrary to the Act.”

Sun and the complainant were given until May 19 to make submissions to the tribunal on what sanctions should be imposed.

- Leighton Keith, Open Justice