Gimranov v The King
[2024] NZCA 125
•23 April 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA500/2023 [2024] NZCA 125 |
| BETWEEN | SERGEY GIMRANOV |
| AND | THE KING |
| Hearing: | 6 March 2024 |
Court: | Courtney, Dunningham and Moore JJ |
Counsel: | Appellant in Person |
Judgment: | 23 April 2024 at 10.30 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
Following a jury trial before Judge Lummis in the Auckland District Court in May and June 2023, Sergey Gimranov was found guilty on three charges of providing immigration advice without being a licensed immigration adviser.[1] He was sentenced to six months’ community detention, 100 hours’ community work and required to pay reparation to those affected.[2]
[1]Immigration Advisers Licensing Act 2007, s 63(1)(a).
[2]R v Gimranov [2023] NZDC 19193 [sentencing notes].
Mr Gimranov appeals against his convictions.[3] He raises three grounds of appeal: (1) a miscarriage of justice occurred as a result of the trial Judge failing to properly direct the jury regarding the mens rea of the charges;[4] (2) the jury’s verdict was unreasonable, having regard to the evidence;[5] and, (3) a miscarriage of justice occurred as a result of incomplete disclosure being provided about one of the witnesses.[6]
The relevant statutory provisions
[3]Criminal Procedure Act 2011, ss 229(1) and 230(1)(c).
[4]Section 232(2)(c).
[5]Section 232(2)(a).
[6]Section 232(2)(c). This ground was first signalled in Mr Gimranov’s submissions filed in advance of the hearing. There is, however, no objection by the Crown and the appeal was argued on all three grounds.
Section 63 of the Immigration Advisers Licensing Act 2007 (IALA) relevantly provides:
63 Offence to provide immigration advice unless licensed or exempt
(1)A person commits an offence if the person—
(a)provides immigration advice without being licensed to do so under this Act or exempt from the requirement to be so licensed, knowing that he or she is required to be licensed or exempt; or
…
(2)For the purposes of subsection (1)(a), a person is deemed to know that he or she is required to be licensed or exempt if, at any time within the 12 months preceding the date of the alleged offence, that person had been informed of that fact in writing by the Registrar or a person appointed to the Authority.
“Immigration advice” is defined in s 7 of the IALA. Relevantly:
(1)In this Act, immigration advice—
(a)means using, or purporting to use, knowledge of or experience in immigration to advise, direct, assist, or represent another person in regard to an immigration matter relating to New Zealand, whether directly or indirectly and whether or not for gain or reward; but
(b) does not include—
(i)providing information that is publicly available, or that is prepared or made available by the Department; or
(ii)directing a person to the Minister or the Department, or to an immigration officer or a refugee and protection officer (within the meaning of the Immigration Act 2009), or to a list of licensed immigration advisers; or
(iii)carrying out clerical work, translation or interpreting services, or settlement services.
The terms “immigration matter” and “clerical work” were relevant in Mr Gimranov’s case. “Immigration matter” has a defined meaning that, relevantly, includes:[7]
… any matter arising under or concerning the application of the Immigration Act 2009 (including any regulations or instructions made under that Act); and includes—
(a)an application or potential application for a residence class visa, temporary entry class visa, or transit visa:
…
[7]Immigration Advisers Licensing Act, s 5 definition of “immigration matter”.
And “clerical work” is defined as:[8]
clerical work means the provision of services in relation to an immigration matter, or to matters concerning sponsors, employers, and education providers, in which the main tasks involve all or any combination of the following:
(a)the recording, organising, storing, or retrieving of information:
(b)computing or data entry:
(c)recording information on any form, application, request, or claim on behalf and under the direction of another person
[8]Section 5.
The Immigration Advisers Complaints and Disciplinary Tribunal has described the scope of “immigration advice” as very broad and, conversely, “clerical work” as narrowly defined:[9]
[53] Persons who are not licensed (or exempt) are permitted to undertake clerical work. In essence, such a person can do no more than retrieve and then record or organise information, enter data on a computer database or hard copy schedule, or record information on a form or other like document under the direction of another person, who will be the licensed adviser or the client or a person exempt from licensing.
[54] Activities which do not meet the narrow definition of clerical work but which involve the use of immigration knowledge or experience to advise or assist another person on an immigration matter, “whether directly or indirectly”, amount to providing immigration advice. That is the exclusive domain of the licensed adviser.
The offending
[9]Immigration New Zealand (Darren Calder) v Maraj Ahmed [2019] NZIACDT 18 at [50] and [52]–[54].
Mr Gimranov was a licensed immigration adviser until September 2016, when his licence was cancelled. Before Mr Gimranov’s licence was cancelled, he had been working for North Shore Immigration Services (NSIS) which was owned by Peter Woodberg. After his licence was cancelled, Mr Gimranov continued to work for NSIS but as a “Senior Office Administrator” rather than a licensed immigration adviser.
The charges related to three separate meetings, two (charges one and two) with existing clients, Henry and Una Gates, and the third (charge three) with new clients, Monique Heyneke and Alex Locatelli. These clients all gave evidence of the meetings. Also present at the meetings was a licensed immigration adviser employed by NSIS, Daniel Popescu. Mr Popescu gave evidence. Mr Gimranov did not give evidence, though his DVD interview was played to the jury.
Charge one: Mr Gates
Mr and Mrs Gates came to New Zealand from South Africa in early 2016 for Mr Gates’ work. They approached Mr Woodberg for immigration advice and Mr Woodberg introduced them to Mr Gimranov as a licensed immigration adviser. Mr Woodberg and Mr Gimranov both met with Mr and Mrs Gates and subsequently they had meetings with Mr Gimranov alone. It appears that Mr Gates’ immigration status was satisfactorily settled some time in 2016. Mr and Mrs Gates were unaware that Mr Gimranov’s licence was cancelled later that year.
In 2018 Mr Gates obtained new employment and, because his visa was “company specific”, he needed to vary the terms of his existing visa. He contacted NSIS again and went to a meeting at their offices. He met with Mr Gimranov and Mr Popescu. Mr Gimranov introduced Mr Popescu to Mr Gates as his new licensed adviser, without explaining why he, Mr Gimranov, was no longer their licensed adviser.
Mr Gimranov remained in the meeting, advising Mr Popescu as to what needed to be done in order to obtain a variation to the visa. Mr Gimranov advised Mr Popescu as to the best process to follow, such as apply for a variation rather than a new visa. Mr Popescu himself did not give any advice or convey any information about the process. Subsequently, the variation was approved and Mr Gates began his new employment.
Charge two: Mr and Mrs Gates
Mr Gates contacted NSIS again in 2019. The family’s initial visas for 15 months were to expire shortly. Mr and Mrs Gates went to a meeting with Mr Gimranov and Mr Popescu on 22 March 2019. They discussed renewing their visas. Mr Gimranov explained that changes in the legislation had altered the process and that Mr Gates could either apply for an interim visa or make a new application. Mr Popescu did not participate in the discussion during that meeting. It was Mr Gimranov who gave all the advice.
Charge three: Ms Heyneke and Mr Locatelli
Ms Heyneke originally came to New Zealand from South Africa in 2015, on a study visa. Subsequently she obtained work visas. In February 2019 Ms Heyneke married a New Zealand citizen. Her husband, Mr Locatelli, contacted NSIS for advice regarding Ms Heyneke’s residency status following her marriage.
Ms Heyneke and Mr Locatelli met with Mr Gimranov and Mr Popescu on 17 July 2019. Mr Gimranov introduced Mr Popescu as the immigration adviser, but in fact Mr Gimranov took the lead in the meeting. Mr Popescu said very little. Mr Gimranov took notes and at the end of the meeting provided a contract for them to sign.
Did the Judge err in summing up on the question of mens rea?
Mr Gimranov’s defence, signalled by trial counsel, Mr Rogers, in his opening statement and addressed more fully in closing, was that the work Mr Gimranov undertook was clerical work only and he did not provide immigration advice.
The question trail provided to assist the jury in its deliberations included the following question in relation to charge one:
Are you sure that Mr Gimranov provided immigration advice by using his knowledge and experience in immigration to advise, direct, assist, or represent Mr Gates directly or indirectly on or about 15 August 2018?
The question trails for charges two and three asked the same question with the appropriate references to the client and the date.
Attached to the question trail were a number of definitions relevant to the charges, including the definitions from the IALA for “immigration advice”, “immigration matter” and “clerical work”.
The Judge directed the jury by reference to those definitions. In relation to charge one, she explained:
The purpose is important. The words “advise, direct, assist or represent” are not defined specifically in the Act but we’re talking about the everyday meaning of those words so your everyday understanding of those words. So, in this context we’re talking about to advise, we’re talking about offering suggestions about the best course of action, making recommendations, informing someone about a situation in a formal or official way. So, it’s not just a casual conversation at the pub, it is actually having someone in your office informing them in that way of a particular situation.
…
In this case the undisputed evidence was that the formal work of actually signing off the applications and completing the application forms was done by Mr Popescu. … But it’s the less formal work, the discussions and what occurred in the actual meetings in the lead-up to the forms being signed and submitted that is going to be the focus for you, for those first three charges.
In relation to the defence position, the Judge said:
Mr Rogers submitted to you that there appears to be a very grey area between what is and what could be considered clerical work and what is actually providing immigration advice. Mr Rogers suggested that drawing a line between immigration advice and clerical work is made even more difficult when you’re considering the realities of working in a busy immigration practice and he gave you some examples of things to think about that could possibly be considered clerical work such as providing standardised checklists, forwarding emails such as immigration decisions without any comments, chasing documents that had already been requested, acknowledging receipt of documents that had been provided and so on.
Mr Gimranov submitted that the trial Judge should have directed the jury to the effect that he would have a defence to the charge if he honestly believed he was undertaking clerical work. This would not have been correct. Mr Gimranov was charged under s 63(1)(a) of the IALA and the only mental element of that charge was whether he knew that he was required to be licensed. It was not in dispute that he did know that. Whether Mr Gimranov believed he was undertaking clerical work was not an element of the offence and an honest belief that he was doing so was not a defence.[10]
[10]An honest but mistaken belief as to a person’s legal obligations may be relevant in assessing the gravity of the offending at the sentencing stage, see for example: Yang v Ministry of Business, Innovation and Employment [2017] NZHC 1673 at [18].
There can be no criticism of the Judge’s summing up, which clearly and correctly set out the elements that the jury needed to determine.
Was the jury’s verdict unreasonable?
The key issue for the jury was whether the work that Mr Gimranov did was immigration advice or clerical work. The elements of the charges Mr Gimranov faced and the evidence adduced to support the charges were both straightforward. The case turned on the jury’s assessment of whether the evidence of Mr Gimranov’s involvement fell within the definition of immigration advice. The jury was correctly directed on how to approach this question.
The evidence, which we have outlined above, was sufficient to support a finding that Mr Gimranov had used his knowledge and experience in immigration matters to advise, direct or assist Mr and Mrs Gates and Ms Heyneke regarding their respective situations. Their evidence that he advised as to the best course to take and the process to follow, if accepted, amply justified a finding that he had given immigration advice. We are satisfied that the jury was entitled to accept the evidence and was therefore entitled to find that Mr Gimranov was giving immigration advice.
Realistically, on the evidence, there was no risk of any different outcome. The fact that Mr Gimranov may have done other work that could properly be described as clerical work does not detract from this.
Was disclosure incomplete?
At an early stage of the proceeding, Mr Gimranov queried why Mr Popescu had not been prosecuted. Later he complained that the Crown had failed to disclose whether Mr Popescu had given an indication that, if he co-operated with the prosecution and gave evidence at trial, he would not be prosecuted. This question was the subject of a pre-trial hearing. The prosecutor confirmed that full disclosure had been made. There was no reason to doubt that and the Judge declined to make any order regarding disclosure. The position remains the same. There is no basis on which to conclude that disclosure was not properly made and no basis on which to suggest that there was any miscarriage of justice arising from this aspect.
We note, for completeness, that at the pre-trial hearing when Mr Gimranov’s concerns about Mr Popescu were first raised, Judge Ryan considered them irrelevant to the case against Mr Gimranov but noted that if Mr Gimranov wished to pursue the matter, it could be put to Mr Popsecu in cross-examination that he was fabricating or exaggerating his evidence to exonerate himself or that he had agreed to cooperate with the police to avoid being charged. During cross-examination Mr Popescu was questioned about whether Mr Gimranov was giving immigration advice when he spoke to the clients concerned and, having been given a warning against self‑incrimination, ultimately declined to answer the question.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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