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Australian immigration law is one of the more complex and fastest changing
areas of law in this country. The Migration Act runs to nearly 800 pages, and
the accompanying Migration Regulations fill around 1,900 pages. In addition
there are thousands of pages of policy guidelines and instructions, Court
judgments and decisions of the Migration Review Tribunal, Refugee Review
Tribunal and Administrative Appeals Tribunal that affect the way the Act and
Regulations are interpreted and applied.
Lawyers are trained to deal with this sort of complexity. As in any country,
legal training in Australia requires several years of post-secondary education
with numerous examinations and other forms of assessment that train the law
student in researching legal issues, understanding legislation and case law,
and very importantly includes courses in professional and ethical conduct.
After graduation lawyers are required to work under the supervision of a
qualified practitioner for a period of time before being permitted to set up
their own practice.
Who is a "lawyer"?
In Australia, as in most countries, a person who charges for legal services
must not only be suitably qualified 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 having
obtained 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 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 has to do once in a
lifetime. 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
they don'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?
What about a "specialist"?
Be very, very careful of this word. Anyone can claim to be a specialist. In
Australia there are around 45 "accredited specialist immigration lawyers" who
really do have a high level of experience and knowledge of immigration law, but
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
. If someone claims to be a specialist but is not
accredited, you are entitled to ask what they mean by the word. Maybe they do
have years of experience (see below), maybe they are highly respected
professionals. Are you prepared to take their word for it?
What does it mean to be a "registered migration agent" or a "member of the
Migration Institute of Australia (MIA)"?
Until 1 July 2006, a person did not need any formal education at all to become
a registered migration
agent. There was a single, multiple-choice exam. This has now been replaced by
a requirement to do a one semester graduate certificate course, involving about
six hours per week over 18 weeks. Once you have your registration, you don't
need to work under
supervision for any period of time before you can set up shop on your own. You
can
also join the Migration Institute of Australia. No further
proof of ability is required.
There are other areas of law in Australia where non-lawyers have been allowed
to provide a limited range of services. In New South Wales, for example, if you
are buying or selling a house you can use a lawyer or a licensed conveyancer.
To become a licensed conveyancer, however, a person has to complete a two-year
course of full-time study and must practise under supervision for a further two
years before setting up their own business. There is no other area of law in
Australia in which people with such minimal qualifications and training as
migration agents can compete with fully qualified lawyers.
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 2007 will have "07". 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.
What does the Department of Immigration think about registered migration agents?
Speaking to the Migration Institute of Australia National Conference on 19
October 2007, the
highest-ranking official in the Department of Immigration and Citizenship, Mr
Andrew Metcalfe, made
some interesting observations about the migration advice "profession" in
Australia.
Apparently Mr Metcalfe's personal view of the industry is that "
generally
it operates
with high levels of professionalism and integrity" (the italics are his, not
mine). He made it clear
that "there is still work to be done to raise the overall level of
professionalism amongst
registered agents".
He noted that "the department still receives a number of very basic enquiries
from some
registered migration agents" and commented that this meant that "something is
lacking in their
training and basic knowledge of the migration environment". So what about the
new one semester
course? While Mr Metcalfe thought that this should be improving standards, he
noted that "
for
some reason
, some agents are still getting through without appropriate knowledge" (this
time
the italics are mine). The fact that he has concerns about "the English
language skills of some
registered migration agents" could be a partial explanation, since according to
Mr Metcalfe "there
are some agents out there who are clearly struggling with the basics of the
English language".
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