Immigration

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DO I REALLY NEED AN IMMIGRATION LAWYER OR ADVISOR?

The Regulation of Immigration Advice in Australia and New Zealand: A Guide for Consumers

Article by Jeff C.H. Ha
THOMAS. JEFFERSON ASSOCIATES LIMITED

Last updated on 12 November 2016

 

Thinking of Moving?

Australia is a stable and culturally diverse nation which boasts a highly skilled workforce. It has one of the strongest economies globally. Australia’s land area makes it the 6th largest country and it is uniquely diverse in many aspects. For example, Australia is a politically stable democracy, multi-cultured and diverse. It is therefore a country that is highly attractive as a migration destination for individuals, families and corporations alike.

Across the Tasman, New Zealand is similarly well known for its well-balanced lifestyle and business environment, thus attracting many prospective migrants, expats, families and corporations. New Zealand’s reputation as an ideal destination for migrants and expats alike is reflected time and time again in many international surveys.[1] For that reason, it is unsurprising that the late Sir Paul Callaghan envisioned New Zealand to become a destination “where talent wants to live”.[2]

Obtaining Immigration Advice 

Unless if you are an Australian resident or citizen, it is likely that obtaining a visa will be the first step towards relocating to New Zealand. Similarly, only New Zealand citizens are allowed to live and work in Australia indefinitely, provided that character requirements are met.

Many people who are unfamiliar with immigration laws, regulations and policies of both Australia and New Zealand will understandably seek professional help with such life changing decisions. With the myriad of advisers or agents and lawyers located both onshore and offshore, consumers are inevitably faced with daunting questions of whether to engage an adviser/agent or a lawyer.

The Regulation of Immigration Advice 

The regulation of immigration advice in Australia was established long ago in 1992. For New Zealand, the regulation of immigration advisers did not occur until much later, where the Immigration Advisers Licensing Act 2007 (“Advisers Act”) was passed on 4 May 2007. Amongst the various changes made to regulate New Zealand’s immigration advice industry, a new governing framework for individuals providing immigration advice was established.

In Australia, the Office of the Migration Agents Registration Authority (“OMARA”) is tasked with administering the Migration Agents Regulations 1998 (“Regulations”) and undertakes a regulator’s role. For New Zealand, the Advisers Act provides a similar regulation of individuals providing immigration advice or assistance. Section 3 states that the purpose of the Advisers Act is to: –

promote and protect the interests of consumers receiving immigration advice, and to enhance the reputation of New Zealand as a migration destination, by providing for the regulation of persons who give immigration advice.

The Immigration Advisers Authority (“IAA”) was established within the Department of Labour (as it was previously known), now rebranded as the ‘Ministry of Business, Innovation and Employment’ (“MBIE”) to oversee New Zealand’s Advisers Act. As of 4 May 2009, individuals providing immigration advice in New Zealand must be licensed by the IAA, unless exempted by the Advisers Act (see below).

The Advisers Act further extends to those based outside of New Zealand. Such advisers must be licensed by 4 May 2010. Exemptions however, apply to those providing advice for student visas only, so long as that they are offshore. Interestingly, it is not a legal requirement for a person to be registered with OMARA if they are providing immigration assistance (as defined under section 276 of Australia’s Migration Act 1958) from overseas.

What is Immigration Advice or Assistance?

Under section 7 of New Zealand’s Advisers Act, “immigration advice” is defined as: –

using, or purporting to use, knowledge of or experience in immigration to advise, direct, assist, or represent another person in regard to an immigration matter relating to New Zealand, whether directly or indirectly and whether or not for gain or reward”.

The key elements of “immigration advice” according to section 7 are: –

  1. Using or purporting to use knowledge of or experience in immigration.
  2. Using knowledge or experience to advice, direct, assist or represent another person.
  • The advice, direction, assistance or representation is provided in regard to an immigration matter relating to New Zealand.

Similarly, “Immigration assistance” under section 276 of Australia’s Migration Act 1958 is to use or claiming to use knowledge of, or experience in, migration procedure to assist with visa applications or other visa matters. This is done by: –

  1. Preparing, or helping to prepare, a visa application or other document;
  2. Advising about a visa application or visa matter; or
  • Preparing or representing for proceedings before a court or review authority in relation to a visa application or visa matter

Registered Migration Agents (“RMA”) in Australia however, are prohibited from providing “immigration legal assistance” as defined under section 277 of Australia’s Migration Act 1958.

Statutory Exemptions

Section 11 of New Zealand’s Advisers Act provides for certain classes of individuals exempted from licensing. The categories of exempted persons include lawyers holding a current practising certificate as a barrister, or as a barrister and solicitor of the High Court of New Zealand.

Unlike in Australia (although likely to change soon), New Zealand lawyers with current practising certificates from the New Zealand Law Society (“NZLS”) are permitted to provide immigration help and advice without a licence. Additionally, employees of a New Zealand lawyer or law firm providing immigration advice in the context of their employment agreement are also exempted from holding a licence.

Presently, lawyers in Australia must register with not only their respective law societies, but also with OMARA as RMAs before providing immigration assistance. In calling for the abolishment of lawyers’ “double regulation”, the Law Institute of Victoria (“LIV”) provided (inter alia) the following detailed information in relation to the current regulatory scheme in its submission to an independent review in 2014: –

  • “The Migration Agents Registration Scheme was implemented by the federal government in 1992 by the Migration Amendment Act (No 3) 1992 (Cth). The decision to include practicing lawyers in the scheme had the effect of prohibiting lawyers from doing that which they could previously do; providing immigration assistance, unless registered.”
  • “The rationale for bringing lawyers within the scheme was not a concern about their qualifications, knowledge, skills or experience. Rather, it is clear from the Second Reading Speech that the concern was that complaints against lawyers were not being dealt with by the self-regulatory model then in existence “with adequate timeliness or vigour.”
  • “This concern is now irrelevant given that the legal profession is no longer self-regulating and in light of the independent, impartial and accessible system for managing complaints against legal practitioners administered, in Victoria, by the Legal Services Commissioner. Furthermore, the Second Reading Speech made it clear that there would be a review of the regulation of lawyers in the scheme after a two year period and that there would be a close dialogue with the legal profession.”

Law Institute of Victoria (September 2014)[3]

Licensed Advisers/Registered Agents VS. Immigration Lawyers

New Zealand lawyers, licensed immigration advisers (“LIA”) and exempted persons can represent individuals to Immigration New Zealand (“INZ”) or the Immigration and Protection Tribunal (“IPT”). Similarly, Australian lawyers and RMAs can represent individuals to the Department of Immigration and Border Protection (“DIBP”) and the Administrative Appeals Tribunal (“AAT”).

Despite the similarities, there are also stark distinctions between RMAs or LIAs and immigration lawyers in making your decision on who to seek for your immigration needs. Below are examples of a few distinctions that consumers should consider in making their decision.

  1. Education and Practical Training

Lawyers are required to complete a legal qualification and further practical training in order to be admitted as a legal practitioner. On average, this takes at least 3 – 4 years of full-time study. Lawyers can represent someone appealing a decision in court or seeking a judicial review. Refugees, protection status claimants and those subject to immigration detention may also be eligible for legal aid if represented by a lawyer, but not if represented by RMAs or LIAs.

RMAs and LIAs on the other hand, must complete a 6 months Graduate Certificate qualification before applying to the IAA or OMARA to be registered. In New Zealand, this was changed to a 1 year Graduate Diploma as of 26 November 2015. It is also highly likely that Australia will follow suit in the near future, as review findings of the OMARA recommended as such.[4]

In New Zealand, immigration advisers’ licence are categorised into 3 types:

  1. Full: Allowed to advice on all immigration matters
  2. Provisional: Allowed to advice on all immigration matters, provided they are supervised by a full licence holder
  • Limited: Can only advice on certain immigration matters

As of 26 November 2015, all LIAs registered for the first time must hold a provisional licence for 2 years, where they are required to work under the direct supervision of a full immigration adviser licence. It should be noted that New Zealand Immigration lawyers are unable to supervise provisional licence holders.

RMAs registered for the first time in Australia are not required to complete any practical training. Instead, they are subject to the “Legislative Instrument IMMI 14/038”, where they must complete a “Practice Ready Programme” in the first year of registration. In addition, OMARA imposes additional mandatory registration requirements on individuals seeking to become RMAs. For example, RMAs must maintain a professional library subscription and possess coverage of professional indemnity insurance.

  1. Legal Advice

Lawyers are legally trained, meaning they have the ability to interpret, analyse, apply legislation and case laws to a particular case. They have the added advantage of being skilled in legal submissions and can advocate on behalf of a client before the Courts.

Lawyers are also knowledgeable in different areas of the law other than immigration. More often than not, they come into good use as immigration law often overlaps with other areas of the law, such as employment; commercial; property; criminal; family; tax and so forth. It goes without saying that RMAs and LIAs are prohibited from providing legal advice of any sort.

2. Professional Standards

Lawyers are regulated by their respective Law Societies which they are registered with. They are subject to stringent regulation by comparison to RMAs or LIAs, such as trust accounting, which are subject to annual audits. Lawyers also have rigorous cost disclosure requirements (see Part 3.4 of the Legal Profession Act), amongst various other duties owed to a client and the Courts.

These requirements are intended to provide the highest possible protection to clients, and cannot be matched by OMARA or IAA standards. Other differences include continuing professional development (“CPD”) requirements with generally higher thresholds for lawyers and professional indemnity insurance covers (not required for LIAs in New Zealand).

Lawyers are also generally bound by higher ethical standards, where receiving referral fees or commissions are prohibited for lawyers, but permitted for RMAs and LIAs. Lawyers’ can also claim legal professional privilege on a client’s information, as opposed to RMAs or LIAs. That means lawyers are not compelled to disclose client confidential information under most circumstances.

RMAs and LIAs are also required to meet competency standards, follow a professional code of conduct set by the IAA and OMARA, as well as complete CPD activities each year. As mentioned, New Zealand LIAs are not required to hold professional indemnity insurance policies (unlike their RMA counterparts in Australia). Both LIAs and RMAs also cannot claim any protection of legal professional privilege for their clients.

Contact Us

For more information, contact our immigration lawyer Jeff Ha, a former Immigration Officer at Immigration New Zealand, now a Registered Foreign Lawyer at Hart Giles, Solicitors and Notaries in Hong Kong and a Consultant with Thomas. Jefferson Associates Limited.

Jeff is also a lawyer admitted in both Australia and New Zealand. He is highly knowledgeable in representing and advocating for both individuals and multinational corporations at all levels. Alternatively, you may get in touch with one of our expert Consultants for professional advice in Hong Kong and various other jurisdictions.

 

An earlier version of this article first appeared in www.scoop.co.nz. The purpose of this article is intended to provide general information on the subject matter and does not constitute legal advice in any way. Contact us at Thomas. Jefferson Associates Limited for specific professional advice applicable to your personal circumstances.

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