Immigration Lawyer vs Migration Agent: Differences in Ethical Obligations & Legal Privilege
It is a common misconception that only registered migration agents can provide immigration advice and assistance in Australia.
In Australia, both immigration lawyers and migration agents can provide immigration assistance and help with a visa application, but they do so under different frameworks, with distinct ethical obligations, protections, and privileges.
Have you ever wondered about the difference between an Immigration Lawyer and Migration Agent in Australia?
Did you know that Immigration Lawyers and Migration Agents have different obligations under the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (“Solicitors’ Conduct Rules”) and the Migration Agents’ Code of Conduct?
Here are the key differences between immigration lawyers and migration agents, including in relation to their ethical obligations.
Who is an Immigration Lawyer?
An immigration lawyer is a legal practitioner who has generally completed a law degree over at least four (4) years, undertaken a mandated period of practical legal training for at least six (6) months, and is admitted to practice as a solicitor in a state or territory of Australia.
For instance, in the State of Victoria where our law practice (Inclusive Migration) is based, newly-admitted lawyers are subsequently required to undergo a period of supervised legal practice under another lawyer for at least eighteen (18) months to two (2) years, prior to being able to practise law without supervision.
Lawyers working in immigration law are generally assigned a Legal Practitioner Number by the Department of Home Affairs, and are otherwise regulated by their respective state and territory law societies and other legal governing bodies in Australia. For instance, lawyers in Victoria are regulated by the Victorian Legal Services Board (“VLSB”) Commissioner, and you can search the VLSB’s Register of Lawyers to find if a lawyer or law practice is registered within Victoria.
Prior to March 2021, immigration lawyers were subject to dual regulation in Australia, as they were required to not only have a current practising certificate to practise law, but also be registered with the Office of the Migration Agents Registration Authority (OMARA) as a migration agent. In recognition that the dual regulation of immigration lawyers imposes an unjustified burden on lawyers who are already subjected to one of the strictest regulatory regimes of any profession in Australia, the Federal Migration Amendment (Regulation of Migration Agents) Act 2020 came into effect in March 2021, such that immigration lawyers holding current practising certificates are not no longer required to register with the OMARA. In addition, immigration lawyers with a current practising certificate are ineligible for registration with the OMARA as a migration agent, and must surrender their practising certificate to register with migration agent, which would prevent them from practising law or engaging in legal services. This means that immigration lawyers can no longer work as both a practising lawyer and a migration agent, and must now choose only one of these two (2) professions.
Immigration lawyers can provide legal advice, represent clients in court, and offer guidance on a broad range of legal issues, including visa applications, appeals (e.g. merits review applications to the Administrative Review Tribunal, judicial review applications to the Federal Circuit and Family Court of Australia, Federal Court of Australia and High Court of Australia), visa cancellations, and advise on compliance with immigration laws.
In practice, it is not uncommon for immigration lawyers to be approached by migration agents for legal advice on complex migration cases. Additionally, due to our legal expertise in how migration matters are conducted, immigration lawyers are also often approached by migration agents for legal advice and representation when they are subjected to disciplinary proceedings and decisions by the Office of the Migration Agents Registration Authority (“OMARA”) under the Migration Agents’ Code of Conduct.
Lawyers are also known interchangeably as legal practitioners and/or solicitors, the latter terms being more specific roles within the legal profession in different legal contexts and settings.
Who is a Migration Agent?
A migration agent, on the other hand, is a professional who has completed a Graduate Diploma in Migration Law for at least six (6) months to one (1) year, and is subsequently registered with the Office of the Migration Agents Registration Authority (OMARA). Migration agents are not required to have a law degree or any legal qualifications, and they may have completed an unrelated Bachelor’s Degree prior to undertaking a Graduate Diploma in Migration Law.
Migration agents are issued a unique Migration Agent Registration Number (MARN).
A migration agent’s expertise is limited to providing migration advice on immigration matters and assisting with visa applications. They cannot represent clients in court, nor can they provide any legal advice, including any advice that goes beyond the scope of immigration law.
Migration agents are otherwise regulated by the Office of the Migration Agents Registration Authority (“OMARA”), and you can search for a migration agent on the OMARA Portal to find if a person is properly registered as a migration agent in Australia.
Following the passing of the Federal Migration Amendment (Regulation of Migration Agents) Act 2020 which came into effect in March 2021, former immigration lawyers who have chosen to continue working as registered migration agents, have been required to surrender their practising certificates. As a result, all migration agents who are registered with the OMARA and who have a Migration Agent Registration Number (MARN) cannot engage in legal services, and cannot practise law, even if they have prior legal qualifications and/or experience. This means that if someone is a registered migration agent, they are not and cannot practise as an immigration lawyer, nor can they provide legal services.
What are the Differences in an Immigration Lawyer and Migration Agent’s Ethical Obligations?
The primary ethical obligations of an immigration lawyer and a migration agent are shaped by the respective legal frameworks they operate under.
In Victoria, New South Wales and Western Australia, lawyers are bound by the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Solicitors’ Conduct Rules), whereas lawyers in other states and territories follow their own versions of the Solicitors’ Conduct Rules; for instance, lawyers in Queensland follow the Australian Solicitors' Conduct Rules 2023. These Solicitors’ Conduct Rules set out a lawyer’s duty to act in the best interests of their client, maintain professional integrity, and avoid conflicts of interest.
In contrast, migration agents are governed by the Migration Agents’ Code of Conduct, which outlines the ethical and professional standards for migration agents. The code focuses on the need for migration agents to act with honesty and fairness while ensuring that they provide accurate and truthful advice.
While the Migration Agents' Code of Conduct sets ethical standards, migration agents are not subject to the same comprehensive set of professional conduct rules that govern lawyers. As a result, there is a notable difference in the regulatory oversight and legal frameworks that protect clients of migration agents, as compared to clients of immigration lawyers, including but not limited to the payment of professional fees and how these professional fees are billed.
Difference 1: Obligation to Act Honestly and Fairly vs Informing Clients of Conflict of Interest
While Clause 4.1.1 of the Solicitors’ Conduct Rules requires lawyers in Victoria, New South Wales and Western Australia to act honestly and fairly in their clients’ best interests, the Migration Agents’ Code of Conduct does not include such a general principle.
The closest rule in the Migration Agents’ Code of Conduct is instead outlined in Clause 34, which requires Migration Agents to inform clients where there is a conflict of interest.
The Solicitors’ Conduct Rules otherwise requires that lawyers avoid conflicts of duties in relations with clients, including conflicts concerning former and current clients, conflicts between current clients and conflicts between a lawyer’s own interests and a client’s interests.
Difference 2: Legal Privilege vs Duty of Confidentiality
One of the most significant distinctions between immigration lawyers and migration agents is the legal privilege that applies to the communications between a client and their lawyer, which ensures that any legal advice or communications with an immigration lawyer cannot be disclosed in court or to other authorities without the client’s consent.
Under Clause 9 of the Solicitors’ Conduct Rules, solicitors cannot disclose a client’s confidential information to any person outside of the solicitor’s law practice or a barrister engaged for the purposes of administering legal services to the client, except where authorised by the client and where permitted/compelled by law to disclose (including where it is for the sole purpose of avoiding the probable commission of a serious offence.
On the other hand, legal privilege does not extend to communications between a client and their migration agent, and in certain circumstances, such as the case of SZKTQ v Minister for Immigration & Anor [2008] FMCA 91 discussed below, communications between a client and a migration agent can in fact be disclosed in legal proceedings, potentially compromising the confidentiality of sensitive information provided by a client to a migration agent.
Case Study 1: SZKTQ v Minister for Immigration & Anor [2008] FMCA 91
In SZKTQ v Minister for Immigration & Anor [2008] FMCA 91, the Federal Magistrates Court found that migration agents’ communications with their clients are not protected by legal privilege.
This case involved an applicant being questioned by the Refugee Review Tribunal (as the Administrative Review Tribunal was then known) about confidential communications between him and his migration agent. The Refugee Review Tribunal subsequently affirmed the refusal of his Protection visa application, following which the applicant applied for judicial review of the Tribunal’s decision to the Federal Magistrate’s Court of Australia (as it was then known).
The applicant submitted to the Court that the Tribunal should have informed him that he could refuse to divulge the communications he had with his migration agent without any adverse inference being drawn, arguing that the relationship between the applicant and his migration agent was akin to the relationship between a legal adviser and his or her client and created a situation similar to legal professional privilege.
However, the Court ultimately ruled that legal privilege does not cover communications between a client and a migration agent, stating at paragraph 39 of its decision that the applicant’s argument about his discussions with migration agent being protected by legal professional privilege was “misconceived”:
“… First, legal professional privilege is a substantive right which, absent specific statutory abrogation, can be enforced by its possessor against all parties. By contrast, to the extent that it is not already an incident of the relationship of principal and agent, the confidentiality required of migration agents is only a creature of the Migration Agents Regulations and is no more than a duty owed by an agent to his or her client…” [emphasis added]
Case Study 2: Minister for Immigration and Multicultural and Indigenous Affairs v Hamdan [2005] FCAFC 113; 143 FCR 398
In Minister for Immigration and Multicultural and Indigenous Affairs v Hamdan [2005] FCAFC 113; 143 FCR 398, Mr Hamdan was released from immigration detention on 3 October 2003 after some years of being detained, with an order to keep his solicitor and a solicitor employed at the Australian Government Solicitor in Adelaide informed about his address and contact details, and to attend Court in person where given reasonable notice in writing by the Australian Government Solicitor (the Minister’s legal representative).
After the High Court of Australia published its judgement in the case of Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124, resulting in Mr Hamdan’s application to the Federal Court of Australia being bound to fail, Mr Hamdan’s judicial review application as listed for hearing on 6 September 2004, and the Australian Government Solicitor gave Mr Hamdan reasonable notice in writing of this hearing, requiring him to attend hearing of his application.
Mr Hamdan’s legal practitioner made a number of attempts to contact the Client using a mobile telephone number that she understood to be his, which was not operational. On 3 September 2004, Mr Hamdan contacted his legal practitioner, and said words to the effect of: “I will provide you with my phone number ... to enable you to provide me with legal advice, however, before I do so I want you to give me an undertaking that you will not disclose this number to anyone else.”. Mr Hamdan’s legal practitioner provided him with this undertaking, and subsequently provided him with legal advice by telephoning the mobile number provided by him.
Mr Hamdan did not attend the hearing of his judicial review application on 6 September 2004, as he knew that the Australian Federal Police would detain him if he attended the hearing. Upon learning that Mr Hamdan’s legal practitioner had been able to contact him on 6 September 2004 by calling him on the telephone, the Australian Government Solicitor (on the Minister’s behalf) served on Mr Hamdan’s legal practitioner a notice on 13 September 2004, requiring her to provide the telephone number that she used to speak to Mr Hamdan. In response, Mr Hamdan’s legal practitioner filed an an application in the Court seeking injunctive and declaratory relief on 16 September 2004, and the Law Society of South Australia was granted leave to intervene on the hearing of her application.
On 1 October 2004, the Federal Court of Australia made orders declaring that Mr Hamdan’s legal practitioner was not obliged to comply with the notice served on 13 September 2004, on the basis that the information sought by the Minister (namely Mr Hamdan’s contact number which was in his legal practitioner’s possession) was protected by legal professional privilege. While the Minister appealed this decision, the Federal Court of Australia ultimately dismissed the Minister’s appeal, finding that because his contact number was provided to his legal practitioner for the purposes of obtaining legal advice, and since there was no evidence that Mr Hamdan had engaged in unlawful action to evade detention, the information he provided to his legal practitioner (including his contact number) was still protected by legal professional privilege.
Case Study 3: SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64
In SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64, the Refugee Review Tribunal questioned the applicant about his protection claims, asking him in detail about communications he had with a solicitor, prior to affirming the refusal of the applicant’s Protection visa application.
Before the Federal Court of Australia, the applicant argued that the communications he had with his solicitor were privileged, and that the Tribunal failed to advise him that he was entitled to legal professional privilege in respect of any confidential communication between him and his solicitor, resulting in a breach of procedural fairness. In response, the Minister argued that the Tribunal did not rely on that part of the applicant’s evidence for its reasons for decision, that there was no rule of procedural fairness preventing an applicant from being asked about his/her conversation with a solicitor in administrative proceedings, and that even if there was such a rule, that the applicant had waived legal professional privilege by answering the Tribunal’s questions. Nonetheless, the Court found that a party appearing before the Tribunal can in fact claim the benefit of legal professional privilege, stating explicitly at paragraph 44 of its decision that “[c]ommunications between an applicant for a protection visa and the applicant’s legal advisers for the dominant purpose of obtaining legal advice or for the use in existing or reasonably contemplated proceedings before the Tribunal are privileged”.
The Court ultimately found that the Tribunal should not have asked the applicant the questions it did about communications the applicant had with his solicitor, and also found that the applicant’s answer could not be taken as a waiver of his legal professional privilege. The Court therefore quashed the Tribunal’s decision, remitting the applicant’s matter to a differently constituted Tribunal for a new decision according to law.
Immigration Lawyer or Migration Agent - Which Should You Choose?
When choosing between an immigration lawyer and a migration agent, it is important to consider and weigh up the pros and cons of each profession.
For instance, for immigration lawyers:
Pros:
Immigration lawyers have completed a law degree and further extensive legal training, such that they can represent you in court, handle complex immigration cases (e.g. where Departmental policy about the Department of Home Affairs’ interpretation of the migration laws and regulations are inconsistent with the actual law), and represent you in legal challenges and appeals.
Immigration lawyers are bound by strict ethical obligations under the Solicitors’ Conduct Rules, which require them to act in your best interests, maintain confidentiality, and uphold the highest ethical standards.
Immigration lawyers have extensive experience in complex migration matters, such that we are skilled at pre-emptively picking up on points in each case which may become points of concern whether in the immediate future or in the longer term.
Communications between a client and immigration lawyer are protected by legal privilege, meaning communications with them are protected and confidential.
Cons:
Immigration lawyers’ services can be more expensive due to their extensive legal training, the detailed legal advice and strategic migration planning they provide to clients, and their ability to represent clients in complex legal matters.
For migration agents:
Pros:
Migration agents are required to be registered with the Office of the Migration Agents Registration Authority (OMARA) and follow the Migration Agents' Code of Conduct, ensuring a degree of professionalism and ethical conduct in their practice.
Migration agents can provide expert advice and assistance with visa applications at a more affordable cost and are regulated by the Migration Agents’ Code of Conduct. This makes them an attractive option for individuals seeking assistance with straightforward visa applications or procedural guidance.
Cons:
Migration agents specialise in administrative proceedings and do not have the capability to provide broader legal advice on complex immigration issues as they are not legally trained.
Migration agents cannot represent clients in court for judicial review matters if their matter goes to litigation.
Communications between a client and migration agent are not protected by legal privilege, which means sensitive information might be disclosed in legal proceedings since migration agents cannot provide legal advice.
Ultimately, while migration agents may be well-equipped for most visa applications and immigration-related services, it may be worth speaking with your migration agent to check if they have access to or can consult with an experienced immigration lawyer for more complex migration matters right from the start.
This collaborative approach between immigration lawyers and migration agents can help pre-emptively address any legal concerns, ensuring that your immigration matters progress smoothly, as opposed to having to seek legal assistance with resolving a complex migration matter after an invitation to comment on adverse information has come your way, or worse still, after your visa application has already been refused on a particular legal point.
Need help with your immigration matter?
At Inclusive Migration, we strive to make our legal services as accessible and affordable as possible, with fee transparency, while also ensuring that all visa applications and/or applications for review we assist with are appropriately supported by detailed legal submissions for the decision maker’s consideration. Instead of the traditional hourly rates model that most law practices use, we offer fixed fees to our clients.
Whether you are seeking legal representation, legal assistance or ad hoc legal advice for your immigration matters, we are here to support you in your migration journey. Should you wish to discuss your migration matter, please do not hesitate to email us at info@inclusivemigration.com.au, submit an enquiry through our contact form or send us a message on WhatsApp.
