Immigration Lawyers Australia: A Guide to Immigration Lawyers Services in Australia

Australian immigration lawyers here

All immigration lawyers are hardly the same.

Immigration lawyers v migration agents

Let’s start with what’s common between the two:

An immigration lawyer and a migration agent both deal with immigration matters. Not sure what the big deal is between an immigration lawyer and a migration agent?

There isn’t much difference at all between the two for straightforward applications.

An immigration lawyer will have completed a law degree and been admitted as a lawyer in Australia. Under current laws, both immigration lawyers and migration agents are required to be registered.

Registration

Agents are licenced by the Office of the Migration Agents Registration Authority(OMARA).

An immigration lawyer registers with MARA but also represents their clients in the courts because they hold “law” practising certificates.

All migration agents are not legal practitioners but all migration agents are regulated by the Migration Agents Registration Authority.

Migration agents’ skills and qualifications

A migration agent currently needs a post-graduate diploma in immigration law. This, together with some practical and oral assessments helps to obtain a licence to provide immigration advice and assistance.

Advice is provided under section 276 of the Migration Act 1958.

Australian immigration lawyer skills and qualifications

A lawyer is also known as an Australian legal practitioner and would have completed either the equivalent of an Australian law degree or completed a program offered by the Legal Practitioners Admission Board in their state or territory and then been admitted as a solicitor or legal practitioner in their state or territory.

An immigration lawyer (or immigration attorney or migration lawyer) will also hold a practising certificate which is issued by their local law society.

They are regulated by relevant law societies and the Legal Services Commissioner or similar.

If the lawyer is also a registered Australian migration agent, then the Migration Agents Registration Authority also regulates that lawyer.

When the going gets tough, the tough get going

Immigration lawyers in Australia advise on both judicial review and merits review of applications.

Migration agents who are not lawyers cannot advise in respect of Judicial Review of applications.

Review

A judicial review involves finding errors in the decision-making process whereas a merits review involves an assessment of whether particular facts meet the criteria for the grant of an application.

If you are applying for a visa to Australia you usually have one opportunity to apply for a visa at the Department of Home Affairs.

If you are not successful, you may (not always!) have an opportunity to seek a review (merits review) of the decision by the Administrative Appeals Tribunal, or in limited cases the Immigration Assessing Authority (IAA).

Representation

Migration agents can represent clients in dealings with the Department of Home Affairs and also in dealings with the AAT and IAA.

Migration agents are not able to represent clients in respect of legal advice including judicial review applications, for which you need to go and see a lawyer in your state or territory. Migration agent services are limited to providing advice which is immigration advice or assistance and no other advice of a legal nature.

“Immigration lawyer” definition

Lawyers dabble in different areas of legal advice (not just immigration). An “immigration lawyer” is most sensibly defined as a lawyer who specialises in or only practices in immigration law work.

So a lawyer who practices in other areas of law and whose practice is not predominantly related to immigration legal advice is more likely to be a general practitioner or legal practitioner of another speciality and not really an “immigration lawyer”.

How many immigration lawyers are there in Australia?

There are 7,402 immigration practitioners in Australia. These individuals have been given a license by the Office of the Migration Agents Registration Authority to give immigration advice and assistance.

Of this number, 2,200 (or roughly one in three) also hold legal practising certificates and are “lawyers”. However of these 2,200, whether all are in fact “immigration lawyers” is an interesting question.

In my estimation, only 10% to 20% of the 2,200 lawyers who are also licensed migration agents are “immigration lawyers” with 80% of this 2,200 cohort being lawyers who entertain other legal matters in their workload, beyond immigration work.

“Lawyers” who aren’t quite immigration lawyers

One problem area for migrants who don’t understand the Australian legal system is that they believe that their “migration agent” is a lawyer and some of the less ethical migration agents will allow innocent clients to maintain this incorrect belief.

Some of the more brazen migration agents even refer to themselves as “lawyers” in their communities.

Some languages don’t actually have a term in their vocabulary for migration agents so often the word lawyer can be conveniently (if not deliberately) substituted.

Convenient labels

Whether a person’s title is conveniently transcribed from migration agent into “lawyer” and because of the influence a person may have in their particular community, often no one calls this person out as being a fake immigration lawyer. Of course, it is a criminal offence to hold yourself out as a lawyer if you are not.

How much do immigration lawyers charge?

I have been an Australian legal practitioner now for a quarter of a century and in that time it’s been very rare for clients to have matters open up on their behalf as files in legal practice for any amount less than $1,500.

If you are seeking advice from an immigration lawyer, I would expect that you would not get a lot of change out of $2,000 for something more than just form-filling.

Easier applications

I would also expect temporary visa applications that are not complex would be in the vicinity of $1,500 to $3,500 with permanent visas in the range of $3,500 to $7,500.

Of course, you can expect to pay a premium if there is complexity associated with your matters on the one hand, and if the particular immigration lawyer you are using has specific expertise and reputation on the other hand.

What is quite astonishing is that migration agents seem to price their services at similar levels to immigration lawyers, even though they do not hold legal qualifications themselves.

How much do immigration lawyers charge for appeals?

In respect of appeals to the Administrative Appeals Tribunal for standard merits review, fees lawyers charge range from $5,000 to $10,000.

In the case of judicial review of decisions of the AAT, which typically requires litigation in the Federal Circuit And Family Court of Australia, you can expect that legal fees paid to solicitors range between $7,000 and $14,000.

Additionally, barristers’ fees of between $5,000 and $10,000 are not uncommon.

Why do I need a lawyer for a simple visa application?

The short answer is you don’t need a lawyer or a migration agent for many immigration applications.

Thousands of immigration applications are made each day electronically by operation of law or both, without any involvement by migration agents or immigration lawyers.

Online applications

The Department of Home Affairs has acted progressively to make the majority of the Australian immigration visa types able to be applied for online and without the assistance of a migration agent or any authorised representative.

The problem is that immigration outcomes are extremely important.

Your visa outcome will affect where you live and how you live the rest of your life and, importantly, whether that will be permitted in Australia.

Correct answers

Once an application is made, then your answers to questions throughout the application process will be forever recorded as having been given by you and sworn (declared) to be true and correct.

The answers that you provide and the documents that you upload into immigration systems directly affect whether or not you meet the criteria for the visa applied for and whether or not you’ll be able to apply for and be granted future visas.

Unfortunately, the Department of Home Affairs is not very forgiving when it comes to incorrect answers and documents with irregularities, not to mention documents that are found to be bogus.

What can I expect from my Australian immigration lawyer?

After booking a consultation with an Australian immigration lawyer, you can expect to get initial oral advice in terms of what to do next.

If your matter is complex, then your immigration lawyer will need to take your question on notice and provide you with some further detailed advice at a later time.

Additional costs

Some immigration lawyers will charge for this additional advice, and others will charge an amount of up to $700 for the initial discussion as well, depending on its urgency and complexity.

The most important thing from your first interaction with your immigration lawyer is to understand whether or not there is any point in engaging them. This is as much about your particular immigration lawyer as it is about your immigration problem.

Receptionist advice isn’t advice

At our immigration law firm, people will often call up and unload the details of their problem with our receptionist, and expect a solution after sharing details of their circumstances.

Giving complete and proper advice is impossible to do without knowledge, time together and using a proven system for flushing out all issues that may be relevant to the advice given.

The initial discussion with your lawyer is an opportunity for you to ascertain whether or not this person is for you.

A good fit?

Is your lawyer competent to advise you and are they interested, enthusiastic, and sufficiently knowledgeable?

Will the advice they provide you be something that sets up your case with the best possible foundation so that it would be ultimately successful in achieving your goals?

The question is not just about your circumstances, but whether or not your immigration lawyer has the knowledge and experience necessary to deal with your circumstances.

To that end, you will need to share your circumstances with your immigration lawyer. It’s a good idea to ask your immigration lawyer for a written summary of what they understand your circumstances to be.

What you would expect when you meet with me is to be given a summary document explaining my understanding of your situation.

Your options

A good immigration lawyer will give you your options and explain your best choice among all the options you may have.

The top immigration lawyers will also give you an honest indication of prospects for success, as well as a fixed price to assist you with certain carefully defined items of work.

Fixed fees

Negotiate a fixed price if you can with your immigration lawyer, as I believe that this is a fair way to proceed for both parties.

Of course, if something changes and something out of left field conspires to dramatically increase the work that is required, then this is something that is covered by the fair agreement that you have with your immigration lawyer.

Your immigration lawyer will give you a cost disclosure and cost agreement. This is slightly different from what you would get from a migration agent, which is a fee agreement or cost agreement.

In short, you can expect a fixed-fee agreement from your immigration lawyer about everything to do with your proposed application, including a recommended course of action, costs, timing, prospects of success, and issues that are of concern. All will be peppered with relevant migration law principles and Immigration Department policies and procedures.

An agreement to do work

Whatever agreement you have with your migration agent or immigration lawyer, it is essentially a contract between two parties for the provision of professional services.

For most immigration matters, the agreement is assistance with preparing and lodging a visa application and dealing with ancillary matters. These might include appeals against any decisions that are adverse or responding to requests for further information or notices, or other requisitions that may arise through the course of processing a visa application.

What if I’m unhappy with my immigration lawyer?

If you are concerned that your initial choice of immigration lawyer was not the right one then I would strongly recommend that you contact your immigration lawyer IMMEDIATELY and seek to have a meeting with that person to explain why it is that you feel that you are being let down.

Your relationship with an immigration lawyer is a two-way street and works best when both parties work together as a team to try and achieve the desired outcome.

Write to the head advisor

If you are unable to resolve your grievances with your immigration lawyer in a meeting and move forward towards getting the immigration outcome you need, then a sensible next step would be to write to the Principal.

You should promptly explain to the Principal of the practice what your concern is.

I have not yet found a legal practitioner in Australia who will not respond immediately to anything that is sent to them raising concerns about how their matter has been handled.

One thing to note is that immigration lawyers are not telepathic and might be completely unaware of your dissatisfaction in most instances.

Take care to communicate with your immigration lawyer promptly if you have any level of dissatisfaction.

Eyeball your advisor

I believe it’s important to meet with your immigration lawyer face-to-face before engaging them for any work which is likely to take a considerable amount of time.

This is not to say that you need to have your first appointment with an immigration lawyer face-to-face, but in all my years providing immigration law advice to clients, I have found the incidence of dissatisfaction is much higher when it comes to clients that you never had a face-to-face chat with.

It is not always possible to meet in person with an immigration lawyer, but with modern technology, you should be able to communicate effectively with that person.

Test communication skills

Use your initial consultation as a test of your ability to communicate with them. Get a sense of how well your immigration lawyer understands you. Experience first-hand the practicality of phoning and getting through to your advisor. Does your advisor respond to your email or your phone call or your text messages promptly?

Take care not to proceed with retaining an immigration lawyer simply because there is no one better at the time, or because it’s quite convenient for you at the time.

The sting

This may well come back to bite you in the backside if you have paid a deposit or gone a fair way down the track in the processing of an immigration application with somebody who you don’t like, or you don’t trust, or you don’t respect, or you don’t have confidence in.

It’s probably a bit late at this stage to change lawyers, although it is something that you should consider if the relationship has turned sour, and certainly if it has become toxic.

If the practice doesn’t resolve my problems, what can I do?

If you have tried to speak to your immigration lawyer and you have tried to speak to the firm, and you have done that in writing in addition to having a sit-down meeting with them, then it’s probably time to speak to another practitioner in the same space.

I would immediately contact another immigration lawyer and get a second opinion about what you should be doing, and this second practitioner will also guide you and alert you to other avenues to have your grievance with your initial immigration lawyer resolved.

How do I pay my immigration lawyer?

You can pay your immigration lawyer in the same way as you pay any other advisor.

You can make payments to them by electronic funds transfer, or you can pay them by depositing money into their bank account after going to a bank, and usually, most immigration lawyers will accept credit card payments as well.

Some of the bigger immigration firms will accept BPAY. Note that whilst BPAY usually does not incur a charge, a credit card surcharge will often be levied for payments made by credit card for your immigration lawyer’s invoices.

Electronic payments

Regarding payments made electronically to facilitate the lodgment of applications at the Department of Home Affairs, you should note that credit card surcharges are also applied by the Department of Home Affairs when making applications online.

Immigration lawyers can also accept cash payments, however, you should take care to obtain a receipt and obtain proof of payment at the time of making any cash payment to anyone, not just your immigration lawyer but anyone who provides services to you.

Do I have to pay all at once or can I pay in instalments?

This depends on your arrangement with your immigration lawyer. Usually, immigration lodgments tend to require quite a bit of work upfront if there is a lodgment required for a deadline before it expires.

This will usually mean that you will be required to fund the majority of your invoice, if not all of your invoice, in a relatively short period.

In this sense, it makes sense to start early with this application so that you can be in a position where you are not rushed and not required to pay the fees to your advisor over a short period, rather than over an extended period.

Most immigration practitioners will have an account that is reserved for client monies and will usually complete work and be confident that clients have made payments of fees into the client’s account, meaning that they are not worried that you will skip the country without paying your immigration lawyer his dues if your application is not successful.

Instalment payments

Whilst you can expect payment in instalments in the case of professional fees, take care to note that the Immigration Department does not allow you to make payments in instalments except in limited cases for very large visa application charges which they levy, for example, the contributory parent visa classes.

How do I know if my advisor is a lawyer or a migration agent?

The smartest way is to simply look up your advisor on the regulator’s website. The regulator that offers licences to practitioners who wish to give immigration advice and assistance is the Migration Agents Registration Authority.

You can contact OMARA or visit them online at mara.gov.au and search for your practitioner’s name. When their record is viewed, it will identify whether your advisor is a migration agent or both a migration agent and an Australian legal practitioner, which includes either being a solicitor or barrister.

Can a barrister help with visa applications or appeals to the AAT?

Usually, a barrister will refrain from direct contact with a visa applicant. A barrister will usually buffer themselves by having a solicitor interpose between themselves and the visa applicant.

Barristers don’t lodge applications at the Department of Home Affairs and barristers don’t usually appear at the Refugee and Migration Division of the AAT, although barristers do appear in the general division of the AAT.

One practical reason is that barristers, at the time of writing this post, are also required to have a migration agent licence issued by the office of MARA in the event they wish to provide immigration advice or assistance.

Some barristers simply will not wish to have this extra layer of licencing and will only act through a solicitor, however, there is a very small number of barristers whom I’m aware of that have taken that extra step and hold a migration agents licence in addition to being admitted to the Bar in their local state or territory.

Is my case officer an immigration lawyer?

It is highly unlikely that the person looking at your application for a visa in Australia is an immigration lawyer in the sense that they have a current practising certificate. This is because the tasks of decision-making are usually done in an administrative capacity and I’m not sure many immigration lawyers would accept positions as decision-makers about visa applications because their immigration law qualification simply allows them to do so much more.

However, there is no doubt many case officers at the Department of Home Affairs have law degrees and I wouldn’t be surprised, although to be honest, I don’t know if there were Australian legal practitioners who were looking at cases at first instance within the Department of Immigration.

Are members of the Tribunal (AAT) Lawyers?

No. And this has been the source of considerable debate. A recent inquiry by former High Court judge, His Honour Justice Callinan, has ventilated ideas for restricting the future appointments of members to persons who hold practising certificates and who are legally trained or have recently been practising Australian legal practitioners.

Criticism of the AAT

There has been considerable criticism that the Administrative Appeals Tribunal has been stacked with members who might not be adequately trained to deal with the legal complexities of deciding immigration cases, being former staffers of politicians who lobby for their appointment into what was seen to be rather cushy jobs as a member of the Tribunal.

I think it is quite clear that in the future all members of the Tribunal will be lawyers.

AAT reforms

What is not clear, however, is whether or not there would be any change to if migration agents will be able to continue to appear at Tribunal hearings, not being lawyers themselves. Certainly one of the frustrating things for many of my clients has been the fact that costs are not recoverable at the AAT when the Tribunal overturns a decision that is made by the Department of Home Affairs.

What ends up happening is that the visa applicant sits in limbo for 15 months, give or take a few months.

Tribunal fees

Most visa applicants are usually considerably out of pocket when going to the Administrative Appeals Tribunal.

The nature of the Tribunal is that no cost is awarded in favour of the visa applicant.

This is despite receiving a positive decision after having been refused by the Department and having incurred considerable costs in having an immigration lawyer support their application for appeal to the Tribunal. Not great!

The refund of half the filing fee, which is about $800, is little consolation for a visa applicant who has had their life placed in a holding pattern for years.

The waiting applicant may or may not have work rights in Australia and certainly is unable to secure true permanent employment whilst they are the holder of a bridging visa and awaiting a further determination of their application.

Do I need an immigration lawyer for a Tribunal hearing?

The answer is No.

An applicant is entitled to have representation at a hearing of the Administrative Appeals Tribunal in the Migration Refugee Division at least (things are a little bit more formal in the General Division).

Whether you have a migration agent with you or a lawyer with you at the AAT hearing, either party can make oral submissions at the hearing.

The point is the Tribunal will clarify that there are no rights to the audience for either migration agent or immigration lawyer at the Tribunal, however, in every instance, the Tribunal acting reasonably will allow a representative to bring a submission, whether orally at the hearing or in writing, before a decision is made.

Jurisprudence

What is notable, however, is that an immigration lawyer who is more conversant with the legislation and the jurisprudence, which is the legal thinking around issues relevant to whether the visa ought to be granted, may well make different and more valuable or more relevant submissions than a migration agent.

It is also useful to have an immigration lawyer at the Tribunal if you are considering an appeal to the Federal Circuit Court in those circumstances where the decision of the Tribunal is infected with some legal jurisdictional error.

A migration agent might not be able to discern the legal error in the same way an immigration lawyer might.

Your advisor is more likely to be more legally savvy if that person is trained as a legal practitioner.

This is not to say that immigration lawyers will always outgun migration agents at the Bar table before a member of the Tribunal, but in my experience, it will boil down simply to how hungry your advisor is and how legally savvy he or she is.

Can immigration lawyers appear in the FCFCA without barristers?

Several seasoned immigration lawyers appear without the assistance of barristers in the Federal Circuit And Family Court Of Australia (FCFC).

Typically this is in circumstances where a Tribunal member has fallen into error when making a decision that is outside of their power and the decision is sought to be quashed by an FCFC judge, or in some cases by a Federal Court judge.

Whilst barristers are often briefed to appear in the FCFC and the Federal Courts about an immigration matter, there are a small number of solicitors who will appear without barristers.

‘Solicitor Advocates’ is perhaps a good term for this very small cohort of Australian legal practitioners.

Can I recover my legal fees after an FCFCA win?

While there are unfortunately no costs that will be awarded in your favour if you are successful at the Administrative Appeals Tribunal, it is a little better in the Federal Court.

This is a little different when an application is made for a review of the Tribunal’s decision at the Federal Circuit and Family Court. If you win at the Federal Circuit and Family Court then you are likely to also be given a favourable costs order, which means the Minister is ordered to pay certain costs.

These costs in the FCFC are usually in a fixed lump sum and currently are in the vicinity of $7,000.

Unfortunately, costs and disbursements in taking your matter to the FCFC are likely to be considerably more than the amount that is typically ordered in your favour if you are successful in the FCFC.

How do I work out who the best immigration lawyer is?

The best immigration lawyer for you is the one you can best communicate with, one who takes your calls, is courteous and in whom you have trust, respect, and confidence.

I strongly recommend that you meet with not just one immigration lawyer before deciding on who to retain to assist you, but that you speak to at least two or three immigration law practitioners.

There is no point in having somebody who is particularly expensive with a particularly great reputation but who has no time to understand the issues of your case and has no empathy about your circumstances.

He or she might be a very professional person but if they don’t “get you” then I would start running! Running to find somebody who does get you.

Isn’t that what we all want?

Key people of influence

At the centre of every industry you will find an inner circle of people who are the most well-known and highly valued people. They are the Key People of Influence.”

(Daniel Priestley)

You may already know who these people are in the migration advice industry. They are the best immigration lawyers. Their names come up regularly in search results, in articles and advertisements, in suggested videos, and in the cases and forums you may research.

The best immigration lawyers are the ones that everyone talks about. They are the go-to people when things get hot in the immigration kitchen. 

The best immigration lawyers are also the advisors who are trusted to get things right after things have gone horribly wrong. This is when it gets very very hot in the visa kitchen. Much too hot for your average migration agent!

The best practitioners maximise your chances of getting a positive immigration outcome. Not guarantee. Maximise. 

The funny thing about the best immigration lawyers is that over time, they become better and better. 

Time is the key. As central persons of influence in immigration, the best lawyers get to experience more cases than their competitors. You see, the better you are, the more you attract more immigration challenges. 

It is through more and more immigration challenges that the better immigration lawyers get to even further refine their skills. This is not peculiar to the migration advice industry. It happens in every professional services firm.

Unfortunately, the advice industry is plagued with pretenders. That is, people who aspire to be key persons of influence in immigration but are extremely lightweight, often with no Australian legal training at all. 

The pretenders are the ones that aren’t nearly as passionate, skilled or experienced in immigration problem-solving as the best lawyers. These pretenders are attracted to the advice industry because you don’t need to be an Australian Legal Practitioner. And these pretenders may or may not be qualified to give immigration advice. This space is unique because immigration is a very multicultural and personal experience, so when intending immigrants seek to find a guide through the immigration maze, they turn to their countrymen and women first … and these people may or may not be qualified to give immigration advice. 

It is not very difficult to become a migration agent. Whether you are a non-lawyer or a trained lawyer, the barriers to entry into this professional services industry are strikingly low. Migration agents who are not lawyers are accustomed to holding themselves out to be skilled legal strategists. They are not. I wish I had a dollar for every time a client came to see me and referred to their migration agent or community advisor as their “lawyer”.

It takes many years, if not decades, to become the best in your field and the best Australian immigration attorneys have been at it for a while. They don’t simply appear on the scene overnight. 

You may have heard of some of the leading persons of influence in immigration already. They associate with firms that have been helping migrants solve immigration problems for many many years. 

In Sydney, this would include firms like Kinslor Prince, D’Ambra Murphy and Accredited Specialists Michael McCrudden, Michael Jones and Michael Kah. 

In Victoria, Carina Ford stands out in Melbourne.

Glenn Ferguson and Helen Duncan offer brilliant immigration law advice in Queensland.

In Western Australia, Estrin Saul is the stand-out firm, employing some of the smartest and most seasoned persons of influence in the migration advice industry.

The best immigration lawyers are the ones that you can access when you need them. They are the ones who get you. They understand and anticipate what your concerns are, and they have ideas and options for helping you deal with your immigration pain. 

These lawyers also have a nice cache of tools and skills that they bring to the table. These will often help you to avoid problems in the first place, in addition to guiding you out of problems you found yourself embroiled in.

How can I help?

Your experience?

Please share your comments with me.

I’d love to know more about your experience!