Australian immigration law is extremely complex, constantly changing, and often intersects with various areas of family, corporations and employment law. The Australian immigration legal framework consists of legislation, regulations, policy and various legislative instruments. Navigating the immigration process without appropriate advice and representation can be a daunting experience.
Both Immigration Lawyers and Migration Agents can provide immigration advice and assistance and both are required to be registered with the Office of the Migration Agents Registration Authority (‘OMARA’). In deciding whether to engage the services of a Migration Agent or Immigration Lawyer, it is important to understand the distinctions between an Agent and a Lawyer.
There are 4 main distinctions between Migration Agents and Immigration Lawyers which is summarised below:
1. Qualifications and Registration
To become an Immigration Lawyer, one needs to obtain the following qualifications and registrations:
- Complete Bachelors of Laws/Juris Doctor (minimum 3-year university degree);
- Complete Practical Legal Training/Articled Clerkship;
- Apply to the Supreme Court for admission as a Lawyer;
- Apply to the Legal Practicing Board of the relevant State/Territory for a Legal Practicing Certificate; and
- Apply to be registered with OMARA as a Registered Migration Agent.
Australian lawyers are trained to interpret, analyse, and apply legislation and case law. In addition to their university degree, after obtaining their practicing certificate they must undertake supervised legal practice under an experienced lawyer for a period of two years.
Migration Agents are required to complete the following qualifications and registrations:
- Complete a 1-year Graduate Diploma of Migration Law; and
- Apply for registration with OMARA as a Registered Migration Agent.
Once registered, a Migration Agent is free to provide immigration advice and services.
2. Standards of Conduct
Immigration Lawyers are subject to higher standards of conduct than Migration Agents. Immigration Lawyers are subject to the ethical and professional standards of a Legal Practitioner and an Officer of the Court. This includes standards established under the Legal Professional Act, Legal Professional Ethical and Conduct Rules, and the OMARA Code of Conduct. Immigration lawyers are subject to dual regulation i.e. the scrutiny of two regulatory bodies – the law society of their practicing State/Territory and OMARA.
Migration Agents, in contrast, are only required to comply with the OMARA Code of Conduct.
3. Legal Professional Privilege
All legal communications with your Immigration Lawyer will be protected under legal profession privilege. In the event that you are investigated or prosecuted, your Immigration Lawyer can claim legal professional privilege to protect the confidential legal information you have shared with your lawyer from disclosure.
A Migration Agent cannot claim legal professional privilege and if requested, may be obligated to disclose your private instructions and information.
4. Extent of Service
Migration Agents can assist you in providing migration advice, preparing and lodging your visa application. However, if you require an appeal to the Federal or High Court to be made, a Migration Agent will not be permitted to represent you in Court. You will need to seek the higher level services of an Immigration Lawyer as their service extends to full representation at Tribunals, the Federal and High Court.
If your case is particularly complex, you may choose to engage the services of an Accredited Specialist in immigration law. Accredited Specialists are recognised by their peers as experts in their area of law, having successfully completed at least 5 years of specialised practice in immigration law matters, and further examinations administered by the State Law Societies.
It is important to keep in mind that when it comes to immigration law, sometimes it really is just a case of “you don’t know what you don’t know”. For this reason, it is best to seek professional advice regarding your eligibility and options before embarking on the arduous and expensive process of applying for a visa.
Whether you choose to engage the services of a Migration Agent or Immigration Lawyer, you must ensure they are registered with the Office of the Migration Agents Registration Authority (‘OMARA’). You can check whether a Migration Agent or Immigration Lawyer is registered by clicking here. You can search using the agent or lawyers name and you will be taken to their MARA profile if they are registered. A quick tip for determining how long an Agent or Lawyer has been registered can be gleaned from looking at their MARN – E.g. Mr Michael Kah’s MARN is 9256535, the first two numbers are the year he was registered i.e. 1992. This can be a good indicator of how much experience an Agent or Lawyer has in immigration law.
可以通过查看其MARN来获取确定移民中介或移民律师的注册时长。 Michael Kah先生的MARN为9256535，前两个数字是他注册的年份，即1992年。这可以是很好的指标来参考移民中介或移民律师在移民法方面的经验。