Can All Lawyers Give Migration Law Advice?

As we discussed in one of our recent blogs, questions about visas often arise when advising on criminal law cases.

In recent years, a number of changes to the law have confused the question of who is permitted to give advice on immigration matters.

This blog seeks to clarify that question.

What Does the Law Say?

The starting point is section 280 of the Migration Act 1958, which says that ‘a person who is not a registered migration agent must not give immigration assistance.’

A ‘registered migration agent’ is a person registered with the Office of the Migration Agents Registration Authority (MARA). This is a government office associated with the Department of Immigration and Border Protection which regulates immigration professionals and maintains the regulatory framework for migration law.

Giving immigration assistance is defined by section 276 of the Migration Act as using, or purporting to use, knowledge of, or experience in, migration procedures to assist a visa applicant or cancellation review applicant by:

• Preparing or helping to prepare a visa application or cancellation review application;

• Advising the visa applicant or cancellation review applicant about the visa application or cancellation review application;

• Preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or

• Representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

Immigration assistance also includes using, or purporting to use, knowledge of or experience in migration procedure to assist another person by:

• Preparing or helping to prepare a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations;

• Advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or

• Representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

Although very broad, this list does not purport to be exhaustive.

Those who provide immigration assistance without being registered with MARA face a penalty of up to $6,600.

Immigration assistance does not include clerical work undertaken in preparing an application or other document, the provision of translation or interpretation services, advice that a person must apply for a visa, or passing on information provided by a third party without any comment or explanation.

So Can a Lawyer who is Not a Registered Migration Agent Give Advice or Not?

To cause further confusion, section 280 of the Act goes on to state that: ‘This section does not prohibit a lawyer from giving immigration legal assistance.’

‘Immigration legal assistance’ is defined by section 277 of the Migration Act 1958 as:

• Acting for a visa applicant or cancellation review applicant in preparing for proceedings before a court in relation to the visa application or cancellation review application;
• Representing or otherwise acting for a visa applicant or cancellation review applicant in proceedings before a court in relation to the visa application or cancellation review application;
• Giving advice to a visa applicant or cancellation review applicant in relation to the visa application or cancellation review application that is not advice for the purpose of any of the following:

1. Preparing or lodging a visa application or cancellation review application;
2. Proceedings before a review authority in relation to the visa application or cancellation review application;
3. The review by a review authority of a decision relating to the visa application or cancellation review application.

• Representing or otherwise acting for a person in proceedings, or in preparation for proceedings before a court that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant); and
• Giving advice to a person about nominating or sponsoring a visa applicant.

This effectively means that a lawyer who is not registered with MARA can provide advice and representation for all of the above matters.

Lawyers can of course obtain registration with MARA if they want to practice exclusively in migration law. In fact, 33.8% of registered migration agents in 2012-2013 held a legal practising certificate.