Australia: February E-Check™ Checklist: What is the difference between a migration agent and an immigration lawyer in Australia?

Last Updated: 9 March 2016
Article by Murray Thornhill

As lawyers we are often asked what differentiates us from "agents" when both of us appear to do the same thing. So, should you see a "migration agent" or an "immigration lawyer"?

There is no doubt that migration is a profoundly life changing experience. The decision to migrate can be costly and complex. This all means it is important that assistance is sought from a highly qualified, regulated professional.

At present there are actually three categories of advisers that may provide migration assistance to clients (although this may change soon). Those categories are:

  1. A Registered Migration Agent ("RMA")

Under Australian Law, with the exception of a sponsor, a close family member, a member of parliament or a government official providing assistance as part of their job, only a RMA may provide what is called immigration assistance (as defined in s276 of the Migration Act 1958).

A RMA cannot provide "immigration legal assistance" within the meaning of s277 of the Migration Act 1958 - (see below).

  1. Lawyers who are not registered as Migration Agents

Generally, lawyers who are not registered as Migration Agents can give some "immigration legal assistance" (see below) but cannot give "immigration assistance" within the meaning of s276 of the Migration Act 1958.

  1. Lawyers who are also registered as Migration Agents.

Lawyers who are also registered as Migration Agents can do all of the above. That is, they can provide immigration assistance, immigration legal assistance and advice about both. This means that a lawyer who is also an RMA can prepare your documents, act on your behalf in court or before the tribunal and provide you with advice in relation to all matters immigration. If the RMA lawyer is also part of a larger firm, they can plug the client into complimentary legal services.

So, what is the difference between a RMA and a RMA lawyer if they can both provide immigration assistance?

As can be seen above, both RMAs and RMA lawyers can provide immigration assistance to clients. So what are the main differences between them? Here is a list.

  1. Training and Education

Degree qualified: While lawyers are required to study for at least 3 years of university education to obtain their legal degree (plus another degree in most cases since 1991), a non-lawyer Migration Agent is presently only required to study for 6 months before they obtain a certificate that enables them to apply to be registered as a Migration Agent.

Experience: A lawyer's legal training is not just about immigration law; they are also trained to analyse, interpret and apply Australian legislation and case law. Australian immigration law is extremely complex and constantly changing. Lawyers are trained to deal with this legislative complexity and apply it to specific circumstances so that they can provide the best solution and options for their clients.

Advocacy: Lawyers are skilled in preparing legal submissions, identifying issues of evidence and proof and presenting their client's case in the best manner possible within the requirements of legislation. This court experience can be essential in maximizing the potential success of their client's application. Well prepared legal submissions will ensure that each of the visa criteria required for the grant of a visa is properly addressed and supported by appropriate documentation.

Supervision: In addition to their university degree, lawyers are also subjected to a period of supervised practical legal work under the supervision of an experienced lawyer. Once registered, a non lawyer Migration Agent is not required to work under supervision before they provide immigration advice and services.

Continuous Training: To remain registered both as a lawyer and a Migration Agent, lawyers who are RMAs must comply with the continuing professional development requirements required as a lawyer, as well as the continuing professional development requirements required as an RMA. In other words, they are required to undertake more continuing training and professional development than a person who is an agent (but not a lawyer).

  1. Legal Advice

While a non-lawyer Migration Agent may be able to provide immigration assistance, they are not able to provide legal advice, and are often unaware of the legal implications related to their client's circumstances. Immigration matters often have other inherent or associated issues that must be considered, including tax law, family law, employment law, property law, commercial law and criminal law. A non-lawyer Migration Agent cannot provide advice around these issues and in fact is prohibited from so doing.

  1. Ethical Standards, Regulation and Professional Conduct

While all RMAs are required to comply with the OMARA Code of Conduct, lawyers who are RMAs are also required to comply with the ethical and professional standards expected of a legal practitioner and an Officer of the Court. This means that lawyers who are RMAs are effectively subjected to dual regulation and the scrutiny of two regulatory bodies.

For example, the Legal Profession Conduct Rules in Western Australia prohibit a lawyer from giving a "spotter's fee" to anyone for introducing business to them.

In contrast, a RMA may receive a commission or "spotter's fee" for introducing their clients to a person or business. The only requirement under the OMARA Code of Conduct in relation to spotter's fees or commission is that the agent tell the client in writing at the time that advice is given, that the agent may receive a financial benefit for giving that advice. It is quite possible that a conflict of interest arises at this point.

Legal Professional Privilege (Confidentiality)

While both RMAs and lawyers are professionally required to keep their clients' affairs confidential, only lawyers may claim the protection of legal professional privilege for their clients.

Legal professional privilege is a protection that exists for the clients of lawyers which keeps the communications between lawyers and clients confidential in most situations, including against a Subpoena from a Court.

The clients of non-lawyer Migration Agents simply do not have that protection. Only lawyers cannot be forced to give up confidential information.

If you want to find out more or discuss the above, contact our Registered Migration Agent, Caroline Teo, who is also a Senior Lawyer, or the firm's Directors, Murray Thornhill and Simon Creek. The team at HHG will be able to provide you with not only immigration assistance, but also legal advice across areas such as tax law, family law, employment law, commercial law, property law, conveyancing and criminal law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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