MA v Liao
[2025] NZHC 1826
•4 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-732
[2025] NZHC 1826
BETWEEN TZU-GONG JANE MA
Appellant
AND
LIBO LIAO
First Respondent
REGISTRAR OF IMMIGRATION ADVISERS
Second Respondent
Hearing: 3 July 2025 Appearances:
Appellant in Person
First Respondent in Person
J T Parry and R W Boyd for RespondentJudgment:
4 July 2025
JUDGMENT OF VENNING J
This judgment was delivered by me on 4 July 2025 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Law Office, Wellington Counsel: J T Parry/R W Boyd, Auckland Copy to: Appellant
First Respondent
MA v LIAO [2025] NZHC 1826 [4 July 2025]
[1] Jane Tzu-Tong Ma is a licensed immigration adviser. Ms Ma was subject to disciplinary proceedings under the Immigration Advisers Licensing Act 2007 (the Act). The Immigration Advisers Complaints and Disciplinary Tribunal (Tribunal) found Ms Ma had breached provisions of the Licensed Immigration Advisers Code of Conduct 2014 (the Code) and imposed a number of sanctions upon her including pecuniary penalties.1 Ms Ma appealed against the pecuniary penalties to the District Court.
[2]Judge B A Gibson dismissed Ms Ma’s appeal.2
[3]Ms Ma now appeals to this Court on a question of law.
Background
[4] I take the summary of the general background to Ms Ma’s dealings with the complainant from the decision of the Tribunal:
[3] Tzu-Tong Jane Ma is a self-employed licensed immigration adviser, trading as both Colab Ltd and New Zealand Immigration Concepts, based in Auckland.
[4]The complainant is MM, a national of China.
[5] The complainant first made contact with Ms Ma via the text message service, WeChat, on 14 September 2022. He was a carpenter who sought a work visa for New Zealand. He also asked her to find a job for him. On 15 September, Ms Ma advised him by WeChat text that the total fee would be RMB 85,000 (approximately NZD 19,500), with a deposit of RMB 10,000 (approximately NZD 2,300) and another RMB 10,000 payable after a successful interview. The balance would be payable after the visa was approved. On the next day, 16 September 2022, she informed him the deposit would have to be paid before the interview. Ms Ma advised what documents were required and gave some advice as to what to say at the interview.
[6] The text exchange between the complainant and Ms Ma continued as to the fee and documentary requirements. On 26 October 2022, Ms Ma asked the complainant to pay the deposit as soon as possible.
[7] On about 30 October 2022, the complainant was interviewed by Hao Zhang, a director of ZR Home Ltd (the company will be referred to as the employer). The complainant was not informed that Mr Zhang was Ms Ma’s husband.
1 MM v Ma [2024] NZIACDT 07.
2 Ma v Liao [2025] NZDC 1128.
[8] Ms Ma told the complainant the interview was successful on 30 October 2022. On an unknown date, she sent him the employment agreement.
[9] On 6 November 2022, the complainant signed the employment agreement. He would work as a construction worker for the employer. The hourly rate was NZD 25.
[10] The complainant transferred RMB 10,000 to Ms Ma, also on 6 November 2022.
[11] The complainant then sent the supporting documents for the visa application to her. Their text exchange concerning the documents continued.
[12] On 7 November 2022, the complainant signed Ms Ma’s immigration advice services agreement. Ms Ma would prepare and lodge a work visa application. No other services were specified in the agreement. The clause for the service fee was left blank. Any extra work would be at an hourly rate of NZD 85. The estimated fee for [the] work was NZD 488.75 (incl. GST), based on an estimate of five hours. If extra work was required, the complainant would be advised and his approval sought.
[13] On 8 November 2022, Ms Ma filed a work visa application under the accredited employer scheme. It was approved by Immigration New Zealand (Immigration NZ) on 26 November. The visa required the complainant to work as a construction worker for the employer and would expire 24 months after his first arrival.
[14] The complainant appears to have transferred another RMB 11,000 to “Zitong Ma” (presumably Ms Ma) on 3 December 2022.
[15]The complainant arrived in New Zealand on 4 December 2022.
[16] On about 10 January 2023, the complainant commenced work for the employer. He was dismissed about two months later.
Complaint to Ms Ma
[17] The complainant sent a text to Ms Ma on 6 April 2023. He said the employer had dismissed him because he had made a slight mistake. He had been charged a fee of RMB 85,000, which far exceeded the standard fee. The complainant accused Ms Ma of serious fraud. He requested the “price difference”, otherwise there would be legal proceedings.
[18]Ms Ma did not reply to his complaint.
[5] The complainant then made a complaint against Ms Ma on 13 April 2023. As to that, the Tribunal recorded:
[19] On 13 April 2023, the complainant made a complaint against Ms Ma to the Authority. According to the complainant:
(1)The contract price was NZD 488. He did not know English. Ms Ma lied to him in Chinese, saying the price was RMB 85,000 (NZD 19,904). Of the RMB 85,000, she said RMB
10,000 was for her to refer him to the employer and another RMB 10,000 if the interview was successful. The remaining RMB 65,000 was to be paid after the visa was secured. This was not what the contract said. She exploited his lack of English. He sought a refund of the excessive fee, the amount charged over and above the sum specified in the contract.
(2)After arriving in New Zealand and starting work, he found out Ms Ma was the wife of his employer.
[6] Following consideration of Ms Ma’s response to the complaint, the Registrar (an Authority established under s 34 of the Act) referred the complaint to the Tribunal alleging dishonest or misleading behaviour or alternatively, breaches of the Code.3
The Tribunal’s substantive decision
[7] The Tribunal dealt with the matter on the papers as provided by s 49(3) of the Act. It did not consider Ms Ma’s conduct amounted to dishonesty. Rather, it considered that she generally lacked an understanding of her professional obligations. It therefore rejected the complaint Ms Ma was dishonest or deliberately misleading. However, the Tribunal found that Ms Ma had breached a number of provisions of the Code, including:
(a)providing false and misleading information about the complainant’s work visa conditions in breach of cls 1, 19(e) and (f);
(b)failing to conduct herself in an honest and professional manner by failing to respond to the complainant’s concerns and blocking him in WeChat in breach of cl 1;
(c)failing to disclose a conflict of interest to the complainant or obtain his written consent to continue representing him in breach of cls 5 and 6;
(d)failing to ensure that the fees charged were fair and reasonable in the circumstances in breach of cl 20(a);
3 Immigration Advisers Licensing Act 2007, s 45.
(e)failing to provide the complainant with a full description of the services provided and failing to provide an invoice for the fees in breach of cls 19(e) and (f) and 22; and
(f)failing to provide the complainant with her internal complaints’ procedure in breach of cl 17(c).
The Tribunal’s penalty decision
[8] In its subsequent penalty decision delivered on 12 March 2024, the Tribunal imposed the following sanctions:4
(a)censure;
(b)an order that Ms Ma complete the LAWS7015 paper at Toi Ohomai Institute of Technology at its next intake;
(c)an order that Ms Ma pay $5,000 to the Registrar within one month of the decision as a financial penalty; and
(d)an order that Ms Ma pay to the complainant $19,061 within one month of the decision.
[9]Ms Ma then appealed to the District Court from the last two orders.5
District Court decision
[10] Judge Gibson noted that Ms Ma accepted the sanction of censure and being ordered to complete the Institute of Technology LAWS paper but appealed the financial penalty and the order to repay $19,061 to the complainant.
[11] Judge Gibson then referred to the background to the complaint, noting that Ms Ma had charged the complainant a total of RMB 85,000 (approximately NZD19,500) to be paid by a deposit of RMB 10,000 (approximately NZ$2,300) and
4 MM v Ma [2024] NZIACDT 10.
5 Section 81.
another RMB 10,000 payable after a successful job interview. The balance was to be payable after the visa was approved. He then went on to note that:
[8] The Tribunal found that Ms Ma breached the Code in numerous respects but in particular the obligations relating to conflict of interest by not disclosing her husband’s position in the building company. The conflict of interest breach was described as the lead misconduct offence in the sanctions decision but the Tribunal, in its substantive decision of 30 January 2024, also found that the fees charged were not fair and reasonable in the circumstances, amounting to a breach of the Code as the fee of RMB85,000 was not specified in the written agreement for Immigration Advice Services between Ms Ma and Mr Liao signed on 7 November 2022.
[9] At paragraph 73 of the decision of 30 January 2024 the Tribunal stated:
While Ms Ma has not said to the Authority or the Tribunal what the fee of RMB85,000 was for or how it was arrived at, it was presumably for the employment and accommodation services, together with the immigration services. However, she did not set any of this out in the Services Agreement or separate the immigration service component of the total fee. It follows that the total fee and all the services are covered by her professional obligations. As noted above, she cannot avoid the obligations in the Code by omitting the higher fee or the non-immigration work from the Services Agreement. The employment and accommodation services were inextricably linked to the ultimate goal of a visa for working and staying in New Zealand. In other words, they were linked to her immigration services.
[10] The Tribunal found, therefore, that the fee of RMB85,000 for preparing and lodging a work visa, the only service specified in the written agreement, was grossly excessive and as such was unfair and unreasonable.
[11] Consequently Ms Ma was ordered to pay $5,000 as a penalty and refund NZ$19,061 to the respondent, in effect the whole of her fee.
[12] Judge Gibson noted Ms Ma’s submission that the fine of $5,000 and the order for refund of the whole of the fee charged to the complainant were excessive penalties having regard to her exemplary record, and her acceptance of the inappropriateness of her failing to inform the complainant that her husband was a director of the firm which was to offer him employment. She submitted that in the circumstances her fees were not excessive.
[13] The Judge then noted the general statements regarding the focus and purpose of disciplinary proceedings, referring to the cases of Z W v Immigration Advisors
Authority and Z v Dental Complaints Assessment Committee.6 The Judge concluded that it was open to the Tribunal to consider the most serious breach was Ms Ma’s failure to disclose the clear and significant conflict of interest and the $5,000 penalty being one-half of the maximum available to it was well within the scope of its discretion. The Tribunal recognised Ms Ma was appearing for the first time before it and it was to her credit she had accepted the decision and apologised. Overall, the Judge considered, however, the penalty of $5,000 to be appropriate.
[14] Insofar as the sanction requiring refund of the fee was concerned, the Judge accepted the submission for the Registrar that the agreement between Ms Ma and the complainant did not set out the detail of the fee the complainant was eventually charged. The only fee referred to was estimated to be $488.75 and was said to be, by paragraph 4.2 of the Services Agreement, one that covered all work of a standard nature. The time from lodging the application to approval of the work permit was short and did not appear to involve any difficulty. Judge Gibson considered therefore, it was difficult to dispute the comments in the sanction decision that RMB 85,000 was grossly excessive for the work and services disclosed in the Services Agreement. Ms Ma had a professional obligation to specify the total fee for the services in the Services Agreement. The only fee the Tribunal held Ms Ma could charge was the
$488.75 referred to in the agreement. Plainly the fee charged was grossly excessive and unfair and unreasonable. The Judge accepted the Tribunal was entitled to direct Ms Ma to refund NZD 19,061 to the complainant calculated as the RMB 85,000 (NZD 19,550) less NZD 489 being the agreed fee in the written agreement. Accordingly, Judge Gibson dismissed the appeal.
Appeal to the High Court
[15] Ms Ma now appeals to this Court. The appeal is under s 85 of the Act. Decisions of the District Court on appeal are said to be final, save for a right of appeal to the High Court on a point of law only.7 Section 85 provides that Part 6 of the Criminal Procedure Act 2011 applies so far as applicable, with all necessary modifications but only so far as it relates to appeals on questions of law.
6 Z W v Immigration Advisors Authority [2012] NZHC 1069; and Z v Dental Complaints Assessment Committee [2008] NZSC 55.
7 Section 84(2).
[16] In Brown v R the Court of Appeal confirmed that a question of law in this context must raise one or more of the three following errors:8
(a)a misdirection of law apparent in the decision; or
(b)oversight of a relevant matter, or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which was the only one reasonably possible on the evidence (in other words being plainly wrong).
Ms Ma’s submissions
[17] Ms Ma submits that Judge Gibson erred by failing to consider crucial evidence specifically the written discussions conducted between her and the complainant via a mobile application (the App discussions) which she says formed part of the agreement between her and the complainant for the immigration services. She submitted that failure constituted an error of law as it resulted in an incomplete and inaccurate assessment of the agreement’s terms, particularly concerning the scope of services and the agreed fees.
[18] In support of that general proposition Ms Ma submitted the Judge omitted crucial evidence (again referring to the App discussions) which had provided evidence of the agreement’s terms and should have been considered. It appeared from the Judge’s decision that he considered the work required for the permit was short, which was incorrect when the whole evidence of all communications was considered.
[19] Next, Ms Ma submitted the Judge misinterpreted the Services Agreement, particularly concerning the hourly rate for the extra work. Ms Ma noted that the Services Agreement provided for additional work at $85 per hour. She argued that the App discussions had involved over 250 hours of extra work. She submitted the App discussions clarified the intended meaning and scope of the agreement.
8 Brown v R [2015] NZCA 325 at [16].
[20] Ms Ma then submitted the Judge failed to consider the requirement for fairness and reasonableness. The App discussions shed light on the agreed scope of work and the basis for additional charges which would have supported a finding that the fee charged was fair and reasonable.
[21] Overall, Ms Ma submitted the District Court decision did not reflect any consideration of the further App discussions and as such, the Judge had failed to consider all relevant evidence.
[22] Ms Ma submitted that the decision of the District Court should be quashed, and the matter remitted to that Court for reconsideration. She also sought that she be awarded costs to compensate her for the costs that she had been charged by a lawyer in the Employment Relations Authority to respond to a claim filed against her.9 She also sought orders setting aside the fine of $5,000 and the refund of $19,061.
Analysis
[23] The rights of appeal to the District Court are constrained and limited to the factors set out at s 81(1).10 Relevantly, in the present case, the right of appeal was limited to Ms Ma’s appeal against the sanctions imposed on her. As Priestley J observed in Z W v Immigration Advisors Authority:11
[34] Section 81 is in contrast to more extensive appeal rights conferred by statutes creating disciplinary bodies for other professionals and occupational groups. 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.
[24] As a result, Ms Ma is bound by the decision of the Tribunal as to its substantive findings regarding her breaches of the Code.
[25] Ms Ma’s principal argument must be that the District Court Judge erred in law by failing to take account of relevant evidence, namely, the App discussions.
9 As Ms Ma was advised during the appeal hearing, there is no jurisdiction for this Court to make such an order on this appeal.
10 Z W v Immigration Advisors Authority, above n 6.
11 (Footnote omitted). Also as from 30 March 2025 substantive decisions by the Tribunal (to uphold a complaint) may be appealed to the District Court given the amendment to s 81(1) (CA) and s 50 of the Act. That however was not the case at the relevant time for Ms Ma.
However, that argument fails for a number of reasons. First, as noted, there is the procedural issue that the District Court Judge was bound to accept the findings of the Tribunal as to the breaches of the Code. That included the finding that the Services Agreement only referred to a fee of $488.75 and the only service referred to was assistance with the application, preparation and submission of the application for a work visa.
[26]Next, given the findings at [72]–[75] of the Tribunal’s decision:12
[72] Irrespective of whether the complainant really was confused as to the amount of the fee, the only fee Ms Ma could charge was NZD 488.75. No other fee was specified in the agreement. Ms Ma cannot avoid her professional obligation to stipulate in the agreement the fee for the services identified there, by pointing to a vague parallel arrangement to charge RMB 85,000 for employment and accommodation services, as well as the immigration services. That broader arrangement was not set out in the services agreement. Ms Ma’s receipts issued to the complainant for the total sum of RMB 85,000 do not mention employment and accommodation services. They describe the services as legal advice, translation, postage, visa application fee and consultation preparation, though she says the receipts are wrong as she did not alter the standard wording.
[73] While Ms Ma has not said to the Authority or the Tribunal what the fee of RMB 85,000 was for or how it was arrived at, it was presumably for the employment and accommodation services, together with the immigration services. However, she did not set any of this out in the services agreement or separate the immigration service component of the total fee. It follows that the total fee and all the services are covered by her professional obligations. As noted above, she cannot avoid the obligations in the Code by omitting the higher fee or the non-immigration work from the services agreement. The employment and accommodation services were inextricably linked to the ultimate goal of a visa for working and staying in New Zealand. In other words, they were linked to her immigration services.
[74] Ms Ma could have charged for the additional employment and accommodation services and avoided the higher fee and those services being caught by the Code, had she entered into a separate written agreement for them which clearly took them outside her engagement for the “immigration advice” work. In order to achieve separation of employment and accommodation services from her immigration services, she should set up a separate company to undertake such services under a separate agreement for a separate fee. Her vague exchange of texts with the complainant does not amount to a clear, separate agreement for such additional services.
[75] The Tribunal finds the fee of RMB 85,000, for preparing and lodging a work visa application, the only service specified in the written agreement, to be grossly excessive. The fee was unfair and unreasonable. This is a breach of cl 20(a) of the Code.
12 MM v Ma, above n 1, (footnotes omitted)
it was unnecessary for and indeed not open to the District Court Judge to consider the evidence of the App discussions.
[27] Ms Ma’s point seems to be that there was a collateral or parallel agreement for services additional to the immigration services and that the fee of RMB 85,000 was the fee for all services together. However, the Tribunal dealt with that argument and rejected it in the above reasoning, at [74]. Further, the other “services” had effectively been provided by the time Ms Ma presented the services agreement to the complainant for signing.
[28] The short point is that any fees for services provided by an immigration adviser such as Ms Ma must be provided for in a written agreement in accordance with cls 18 and 19 of the Code. The written agreement must provide a full description of the services to be provided and the fees to be charged for the services. The Code requires any such written agreement to be signed or to have the party’s acceptance to the fees confirmed in writing. The exchange in the App discussions did not amount to a fully informed acceptance by the complainant of additional fees for the immigration services.
[29] The App discussions Ms Ma relies on and which she took the Court to in her submissions, are not a written agreement for the purposes of the Act or Code. As the Tribunal found, the employment and accommodation services were inextricably linked to the ultimate goal of obtaining a visa for the complainant to work and stay in New Zealand. As such, they were inextricably linked to the immigration services provided by Ms Ma. If Ms Ma wished to charge an additional or separate fee for those services her remedy was, as the Tribunal noted, to have entered a separate written agreement for those services to take them outside her engagement for immigration advice work. However, as matters stand, and absent such a formal separate agreement, the services provided fall within the definition of immigration advice under s 7 of the Act, as they involved Ms Ma in using her “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 …”.
[30] In any event, Judge Gibson referred to this point in his decision at [9] before concluding the Tribunal found the fee of RMB 85,000 for preparing and lodging the work visa the only service specified in the written agreement to be grossly excessive and as such it was unfair and unreasonable.
[31] Although Ms Ma’s focus was on the order requiring her to repay the overcharged service fee, she is unable to show that the Tribunal (and the District Court) acted on a wrong principle, failed to take into account some relevant matter, or took into account an irrelevant matter in determining that the appropriate penalty was
$5,000. That sum was half the maximum available to the Tribunal. While the Tribunal had rejected the Registrar’s argument her conduct was deliberately dishonest, it found that she had breached several provisions of the Code, including a number of fundamental obligations: failing to advise of a conflict of interest; failing to provide a full and clear description of the services provided; and failing to have and provide information regarding her internal complaints procedure, among other failings. It was open to the Tribunal to conclude that the overall gravity of her actions was at the higher end of medium or moderate level misconduct. A review of similar decisions of the Tribunal shows a range of penalties between $3,000 and $7,000, with a number in the
$4,000 to $5,000 range. The District Court Judge was not in error in upholding the penalty of $5000.
[32] As for the refund, it follows from the above reasoning that I agree with the submissions for the second respondent the refund order ultimately made was a consequence of the factual findings made by the Tribunal, namely that RMB 85,000 for preparing and lodging a work visa was grossly excessive, and that the only fee Ms Ma was entitled to charge as an immigration consultant was the fee specified in the service contract for the specified services which was the fee of $488.75.
[33] There was no error in law in the District Court decision in upholding the findings of the Tribunal as to the requirement for Ms Ma to refund the balance of
$19,061.
Result
[34]The appeal is dismissed.
Costs
[35] The second respondent is entitled to costs on a 2B basis (one counsel) together with disbursements as fixed by the Registrar.
Venning J
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