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Immigration lawyers and migration agents -- what's the difference?

 

In Australia, a person who gives "immigration assistance" for a fee must in most cases be a Registered Migration Agent under the Migration Act 1958. 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, etc (Migration Act s 276). Many Registered Migration Agents are lawyers, and many are not.

Who is a "lawyer"?

In Australia, as in most countries, a person who charges for 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?

What about a "specialist"?

Be very, very careful of this word. Anyone can claim to be a specialist. In Australia there are around 50 "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. 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 2011 will have "11". 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 recently 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.

The choice is yours...   

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Copyright 2011 Michael Jones ~ Solicitor. All rights reserved.

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