Guide To Immigration Lawyers In Australia

Immigration Lawyer Consultation With Nilesh Nandan

 

How are immigration lawyers different from migration agents?

Not sure what the big deal is … Between an immigration lawyer and a migration agent?

An immigration lawyer and a migration agent both deal with immigration matters.

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. They are licenced by the Migration Agents Registration Authority. An immigration lawyer also has the authority to represent their clients in the Federal Court and the High Court of Australia.

A migration agent currently needs to complete a post graduate diploma in immigration law together with some practical and oral assessments in order to obtain a licence to provide immigration advice and assistance. This is done under section 276 of the Migration Act 1958. All migration agents are not legal practitioners but all migration agents are regulated by the Migration Agents Registration Authority.

A lawyer is also known as an Australian legal practitioner and would have completed either the equivalent of an Australia 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. They 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 that lawyer is also regulated by the Migration Agents Registration Authority.

Immigration lawyers advise on both judicial review and merits review of applications

Migration agents who are not lawyers do not advise in respect of Judicial Review of applications. Judicial review involves finding error in the decision-making process whereas 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 for Australia you usually have one opportunity to lodge an application for a visa at the Department of Home Affairs, and if you are not successful, you may (not always!) have an opportunity to seek review (Merits Review) of the decision by the Administrative Appeals Tribunal (or in limited cases the Immigration Assessing Authority (IAA). Migration agents are able to 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 agents’ 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 and “immigration lawyer”.

How many immigration lawyers are there in Australia?

There are 7402 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, 2200 (or roughly one in three) also hold legal practising certificates and are “lawyers”. However of these 2200, whether all are in fact “immigration lawyers” is an interesting question.

In my estimation, only 10% to 20% of the 2200 lawyers who are also licensed migration agents are “immigration lawyers” with 80% of this 2200 cohort being lawyers who entertain other legal matters in their workload, beyond immigration work. 

Fake 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 unethical 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 own 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. 

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 a 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 the very simplest of matters. 

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 particular expertise and reputation, on the other hand.

What is quite surprising is that Migration Agents seem to price their services at similar levels to immigration lawyers although 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 $5000 to $10000.

In the case of judicial review of decisions of the AAT, which typically requires litigation in the Federal Circuit Court of Australia, you can expect that legal fees paid to solicitors range between $7000 and $14,000. Additionally barristers fees of between $5000 $10,000 are not uncommon. 

 

What’s the point of having a lawyer involved in a simple visa application?

The short answer is you don’t need a lawyer or a migration agent for many immigration applications. In fact thousands of immigration applications are made each day electronically by operation of law or both, without any involvement of migration agents or immigration lawyers. 

The Department of Home Affairs has acted progressively to make the majority of the Australian immigration visa types able to be applied 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 and will affect where you live and how you live the rest of your life and importantly whether that will be permitted in Australia. 

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 which are found to be bogus in nature.

What can I expect from my Australian immigration lawyer?

After booking in 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. Some immigration lawyers will charge for this additional advice and others will charge an amount up to $700AUD for the initial discussion 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 and this is as much about your particular immigration lawyer as it is about your immigration problem. 

At our immigration law firm, Most people will call up and unload the details of their problem with our receptionist, and expect a solution after sharing details of their circumstances. This is impossible to do completely and properly or with relevant authority. 

The initial discussion with your lawyer is an opportunity for you to ascertain whether or not this person is somebody who is competent to advise you and is interested, enthusiastic and sufficiently knowledgeable so that the advice they provide you is something which sets up your case with the best possible foundation, so that it would be ultimately successful in achieving your goals. 

The question is not about your circumstances but whether or not your immigration lawyer has the knowledge and experience to deal with your circumstances. To that end you will need to share you 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 that I would give you a summary document which explains my understanding of your situation and gives you what I consider to be your options and what I consider to be your best choice amongst all the options you may have. 

I will also give you an indication of prospects for success as well as a fixed price to assist you with certain carefully defined items of work. 

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 which 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 to what you would get from a migration agent which is a fee agreement or cost agreement. 

Whatever agreement you have with your migration agent or immigration lawyer, it is essentially a contract between two parties for their provision of professional services. in relation to immigration this is really assistance with preparing and lodging a visa application and dealing with ancillary matters including 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 of a visa application. In short you can expect a fixed fee agreement from your immigration lawyer about everything to do with your proposed application including recommended course of action, costs, timing, prospects of success, and issues that are of concern are all peppered with relevant migration law principles and immigration Department policies and procedures.

What to do IF you are unhappy with your 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 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 to try and achieve the desired outcome as a team. If you are unable to resolve your grievances with your immigration lawyer in a meeting and move on towards getting the immigration outcome you need, then a sensible next step would be to write to the Principal. You must explain to the Principal of the practice in simple English explain 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. 

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 time.  This is not to say that you need to have your first appointment with an immigration lawyer face to face, but I find that in all my years in providing immigration law advice to clients, 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 face to face with an immigration lawyer but with modern technology you should be able to communicate effectively with that person and use your initial consultation as a test of your ability to communicate;  not simply in the sense that you understand that your immigration lawyer understands you but also the practicality of phoning and getting through to your advisor or advisor responding to your email or your phone call or your text messages.  

Take care not to proceed to retain an immigration lawyer simply because there is no one better at the time or that it’s quite convenient for you at the time. This may well come back to bite you in the backside if you have in fact paid a deposit or gone a fair way down the track in the processing of a immigration application with somebody who you don’t really like or you don’t really trust or you don’t really respect or you don’t really 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 is one which has turned sour and certainly if it has become toxic.

If the practice you have engaged doesn’t resolve your problems, what can you 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 in relation to what you should be doing, that other 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 in relation to payments made by credit card for your immigration lawyer’s invoices.

In relation to 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 my immigration lawyer in one lump sum 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 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 of time.  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 of time rather than over an extended period of time.

Most immigration practitioners will have an account which 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 in the event that your application is not successful. 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 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 which to give immigration advice and assistance is the Migration Agents Registration Authority. You can contact the MARA 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 provide help with an immigration application lodged with the Department of Home Affairs or an appeal to the Administrative Appeals Tribunal?

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 applicant 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 agents licence issued by the office of migration agent registration authority in the event In which they wish to provide immigration advice or assistance. Some barristers simply will not wish to have this extra layer of licensing and will only act through a solicitor however there is a very small number of barristers whom I’m aware of that actually 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 practicing certificate. This is because the tasks of decision making is usually done in an administrative capacity and I’m not sure many immigration lawyers would except positions as being decision makers in relation to visa applications because their immigration law qualification simply allows them to do so much more. However there are no doubt many case officers at the Department of Home Affairs who 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 some considerable debate. A recent enquiry by former High Court judge his honour, Justice Callinan has ventilated ideas for restricting the future appointments of members to persons who hold practicing certificates and who are legally trained or have recently been practicing Australian legal practitioners.

There has been great 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 these rather cushy jobs as member of the tribunal. I think it is quite clear that in the future all members of the tribunal will be lawyers. 

What is not clear however is whether or not there would be any change to whether 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 own clients, have 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 a period of 15 months give or take a few months and when 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, because the nature of the Tribunal is that no cost are awarded in  favour of the visa applicant, most visa applicants are usually considerably out of pocket when going to the Administrative Appeals Tribunal. 

The refund of half of 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 and it may or may not have work rights in Australia and certainly is unable to secure permanent employment whilst the holder of a bridging visa and waiting for a further determination of their application.

Do immigration lawyers have any special advantage in the Tribunal hearing over migration agents?

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

Do immigration lawyers appear in the Federal Circuit Court without barristers?

There are a number of seasoned immigration lawyers who appear without the assistance of barristers in the Federal Circuit Court. Typically this is in circumstances where a Tribunal member has fallen into error when making a decision which is outside of their power and the decision is sought to be quashed by a Federal Circuit Court judge or by a Federal Court judge in some cases.

Whilst barristers are often briefed to appear in the Federal Circuit Court and the Federal Courts in relation to 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.

 

If I win my case at the Tribunal will I get a refund of the fees that I paid to my immigration lawyer?

Unfortunately there are no costs that will be awarded in your favour if you are successful at the Administrative Appeals Tribunal. This is a little different when an application is made for review of the Tribunal’s position at the Federal Circuit Court. If you win at the Federal Circuit 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 Federal Circuit Court are usually in a fixed lump sum and currently are something in the vicinity of $7,000 AUD. Unfortunately costs and disbursements in taking your matter to the Federal Circuit Court are likely to be considerably more than this amount that is typically ordered in your favour if you are successful in the Federal Circuit Court.

 

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

The best immigration for you is the one you can best communicate with and who takes your calls and who is courteous and in whom you have trust and respect and confidence. I strongly recommend that you meet with not just one immigration lawyer before making the decision 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 and who has a particularly great reputation but who has no time to understand the issues of your case and has no empathy about your own 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?

Immigration Lawyer Consultation With Nilesh Nandan

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