What is "immigration assistance"?The
term "immigration assistance"
means using, or purporting to use, knowledge of or experience in
migration procedure to advise or assist various people with visa
applications and related sponsorships, appeals, requests to the Minister, etc (Migration
Act 1958 s
276).
In
Australia, a person who gives "immigration
assistance" for a fee must be a legal practitioner
holding a current Australian legal practising certificate or a
Registered Migration
Agent. The penalty for anyone else charging a fee for immigration assistance is imprisonment for 10 years (Migration Act 1958 s 281). Some other people may give immigration assistance without charging a fee: Members of Parliament; government
officials; some close family members; diplomats, consular officers or
officials of international organisations. A person nominating or
sponsoring another person for a visa may also give immigration
assistance to that person (Migration
Act 1958 s
280). For anyone else giving immigration assistance even without charging a fee the penalty is a fine of up to $18,780.
Who is a "lawyer"?
In Australia,
as in most countries, a person who provides legal services must not only have legal qualifications but
must
also hold a current practising certificate. These certificates are
renewed each year subject to the lawyer having current professional
indemnity insurance and meeting other requirements such as completion
of a certain amount of continuing legal education and an independent
external examination of any trust account he or she
operates. If the lawyer has been disciplined, the practising
certificate may be refused or have special limitations placed on it.
For the first few years after qualifying, all practising certificates
are subject to a condition that the lawyer must work under the
supervision of a more experienced practitioner.
Some people
may call themselves "lawyers" and advertise that they have legal
qualifications, or that they are "admitted to practise" in a State or
Federal Court. They might even publish a copy of their degree or
admission certificate on their website. But being admitted to practise
is something a lawyer usually only does once in a lifetime, just after
graduating. It
doesn't mean they have a current practising certificate or are allowed
to charge for legal services. They may have some legal knowledge, not
necessarily recent, but may not have lawyer's professional indemnity
insurance or be covered by a fidelity fund to protect their clients
against fraud. If a person says they are a lawyer but
doesn't have a current practising certificate, you
are entitled to ask why not? Have they ever worked under supervision?
Have they been refused for disciplinary reasons? What level of
insurance or other protection do they offer you? Just how long ago did
they last open a law text book?
Who is a "registered
migration agent"?
A registered migration agent (RMA) is a person who is registered by the Migration Agents Registration Authority
permitting them to give immigration assistance for a fee without being
a lawyer with a practising certificate. All RMAs have a 7-digit
registration number (MARN) which they are required to provide in all
advertising including on their website. You can check whether a person
who claims to be an RMA is currently registered by checking their
number on the Authority's website.
What about a
"specialist"?
Be very, very
careful of this word. Anyone can
claim to be a specialist. Some lawyers are entitled to call themselves
an "Accredited Specialist Immigration Lawyer". All of them are listed
as specialists with either the Law Society of NSW , the Law
Institute of Victoria , the Queensland Law Society or the Law
Society of South Australia and they really do have a high
level of experience and knowledge of immigration law. If someone claims
to be a
specialist but is not accredited, you are entitled to ask what they
mean by the word. Some registered migration agents are highly
experienced professionals. But how do you know? One thing you can check
is the first two digits of their registration number (which they are
supposed to give on their website). Registration began in 1992, so
people registered the longest will have "92" at the start of their
number. Those registered in 2024 will have "24". If someone has only
been registered for a couple of years, you should try to find out
whether there are any more experienced people working in their firm.
Are your communications
protected?
If
you are dealing with a lawyer who has a current practising certificate
and is acting under that certificate, you have a right known as "legal
professional privilege", which means that
communications between a lawyer and client are confidential and cannot
be revealed except in a few very limited circumstances.
A Full Bench
of the Federal Court upheld
the inviolability of legal professional privilege in immigration
matters when it ruled that the Refugee Review Tribunal had exceeded its
jurisdiction by asking an applicant what he had been told by his lawyer
(SZHWY v Minister for Immigration
[2007] FCAFC 64). The Court quoted Deane J of the High Court
in Attorney-General for the Northern Territory v Maurice
(1986) 161 CLR 475 at 490:
"[Legal professional privilege] is not
to be sacrificed even to promote the search for justice or truth in the
individual case or matter and extends to protect the citizen from
compulsory disclosure of protected communications or materials to any
court or to any tribunal or person with authority to require the giving
of information or the production of documents or other materials."
The clients
of non-lawyer migration agents have
no such protection. The Office of the Migration Agents Registration
Authority, for example, can demand access to the files
of a non-lawyer agent and, under exemptions in Australia's privacy
laws, may pass on some or all of that information to the authorities.
General legal advice
Immigration
cases often have implications for
people's rights and responsibilities in other areas of law, such as
tax, family or matrimonial law, employment, and even criminal law.
Non-lawyer agents have no responsibility to advise a client or even be
aware of these issues. Lawyers on the other hand are required to be
aware of the general law, and even if the individual lawyer does not
have the expertise to advise you fully about, say, a taxation issue
arising from your immigration case, he or she should at least be able
to identify the problem areas and help you to obtain the necessary
specialist help.
– – Get more information from the
Australian Immigration Lawyers Directory – –
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