Immigration lawyers and migration agents -- what's the difference?
In Australia, a person who gives "immigration assistance" for a fee must in most cases be a Registered Migration Agent under the Migration Act 1958. The term "immigration assistance" means using, or purporting to use, knowledge of or experience in migration procedure to advise or assist various people with visa applications and related sponsorships, appeals, etc (Migration Act s 276).
So why should you choose to have your case handled by a lawyer rather than a non-lawyer "registered migration agent"?
Training and experience
Australian immigration law is one of the more complex and fastest changing areas of law in this country. The Migration Act runs to nearly 800 pages, and the accompanying Migration Regulations fill around 1,900 pages. In addition there are thousands of pages of policy guidelines and instructions, Court judgments and decisions of the Migration Review Tribunal, Refugee Review Tribunal and Administrative Appeals Tribunal that affect the way the Act and Regulations are interpreted and applied.
Lawyers are trained to deal with this sort of complexity. As in any country, legal training in Australia requires several years of post-secondary education with numerous examinations and other forms of assessment that train the law student in researching legal issues, understanding legislation and case law, and very importantly includes courses in professional and ethical conduct. After graduation lawyers are required to work under the supervision of a qualified practitioner for a period of time before being permitted to set up their own practice.
Who is a "lawyer"?
In Australia, as in most countries, a person who charges for legal services must not only be suitably qualified but must also hold a current practising certificate. These certificates are renewed each year subject to the lawyer having current professional indemnity insurance and meeting other requirements such as completion of a certain amount of continuing legal education and having obtained an independent external examination of any trust account he or she operates. If the lawyer has been disciplined, the practising certificate may be refused or have special limitations placed on it. For the first few years after qualifying, all practising certificates are subject to a condition that the lawyer must work under the supervision of a more experienced practitioner.
Some people may advertise that they have legal qualifications, or that they are "admitted to practise" in a State or Federal Court. They might even publish a copy of their degree or admission certificate on their website. But being admitted to practise is something a lawyer usually only has to do once in a lifetime. It doesn't mean they have a current practising certificate or are allowed to charge for legal services. They may have some legal knowledge, not necessarily recent, but may not have lawyer's professional indemnity insurance or be covered by a fidelity fund to protect their clients against fraud. If they don't have a current practising certificate, you are entitled to ask why not? Have they ever worked under supervision? Have they been refused for disciplinary reasons? What level of insurance or other protection do they offer you? Just how long ago did they last open a law text book?
What about a "specialist"?
Be very, very careful of this word. Anyone can claim to be a specialist. In Australia there are around 45 "accredited specialist immigration lawyers" who really do have a high level of experience and knowledge of immigration law, but all of them are listed as specialists with either the Law Society of NSW , the Law Institute of Victoria , the Queensland Law Society or the Law Society of South Australia . If someone claims to be a specialist but is not accredited, you are entitled to ask what they mean by the word. Maybe they do have years of experience (see below), maybe they are highly respected professionals. Are you prepared to take their word for it?
What does it mean to be a "registered migration agent" or a "member of the Migration Institute of Australia (MIA)"?
Until 1 July 2006, a person did not need any formal education at all to become a registered migration agent. There was a single, multiple-choice exam. This has now been replaced by a requirement to do a one semester graduate certificate course, involving about six hours per week over 18 weeks. Once you have your registration, you don't need to work under supervision for any period of time before you can set up shop on your own. You can also join the Migration Institute of Australia. No further proof of ability is required.
There are other areas of law in Australia where non-lawyers have been allowed to provide a limited range of services. In New South Wales, for example, if you are buying or selling a house you can use a lawyer or a licensed conveyancer. To become a licensed conveyancer, however, a person has to complete a two-year course of full-time study and must practise under supervision for a further two years before setting up their own business. There is no other area of law in Australia in which people with such minimal qualifications and training as migration agents can compete with fully qualified lawyers.
Some registered migration agents are highly experienced professionals. But how do you know? One thing you can check is the first two digits of their registration number (which they are supposed to give on their website). Registration began in 1992, so people registered the longest will have "92" at the start of their number. Those registered in 2007 will have "07". If someone has only been registered for a couple of years, you should try to find out whether there are any more experienced people working in their firm.
What does the Department of Immigration think about registered migration agents?
Speaking to the Migration Institute of Australia National Conference on 19 October 2007, the highest-ranking official in the Department of Immigration and Citizenship, Mr Andrew Metcalfe, made some interesting observations about the migration advice "profession" in Australia.
Apparently Mr Metcalfe's personal view of the industry is that " generally it operates with high levels of professionalism and integrity" (the italics are his, not mine). He made it clear that "there is still work to be done to raise the overall level of professionalism amongst registered agents".
He noted that "the department still receives a number of very basic enquiries from some registered migration agents" and commented that this meant that "something is lacking in their training and basic knowledge of the migration environment". So what about the new one semester course? While Mr Metcalfe thought that this should be improving standards, he noted that " for some reason , some agents are still getting through without appropriate knowledge" (this time the italics are mine). The fact that he has concerns about "the English language skills of some registered migration agents" could be a partial explanation, since according to Mr Metcalfe "there are some agents out there who are clearly struggling with the basics of the English language".
Protection
Of course, lawyers make mistakes like anyone else and no amount of training and supervision can ensure that every lawyer will act honestly. Lawyers' clients are protected in both of these situations by the compulsory professional indemnity insurance that lawyers are required to take out and by "fidelity funds" managed by the State and Territory licensing authorities. Although the Code of Conduct includes a requirement that migration agents have some sort of insurance, no specifics of the type of cover are prescribed. Such insurance would probably not protect the client against fraud or dishonesty on the part of the agent.
Migration agents are supposed to act in accordance with a Code of Conduct which includes a number of ethical and professional guidelines, and their registration can be suspended or revoked if the Migration Agents Registration Authority (MARA) determines that they have breached the Code. Given the ridiculously low entry requirements for registration, however, this is somewhat like handing out drivers licences on street corners and then penalising the driver after he or she has had an accident. Professionalism and ethical conduct in particular are concepts that require both substantial formal training and a period of supervised practice under an experienced mentor.
Confidentiality
Another protection that lawyer's clients have is the right known as "legal professional privilege", which means that communications between a lawyer and client are confidential and cannot be revealed except in a few very limited circumstances.
A Full Bench of the Federal Court recently upheld the inviolability of legal professional privilege in immigration matters when it ruled that the Refugee Review Tribunal had exceeded its jurisdiction by asking an applicant what he had been told by his lawyer ( SZHWY v Minister for Immigration [2007] FCAFC 64 ). The Court quoted Deane J of the High Court in Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 490:
"[Legal professional privilege] is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials."
The clients of non-lawyer migration agents have no such protection. The MARA for example can demand access to the files of a non-lawyer agent and, under exemptions in Australia's privacy laws, may pass on some or all of that information to the authorities.
General legal knowledge
Immigration cases often have implications for people's rights and responsibilities in other areas of law, such as tax, family or matrimonial law, employment, and even criminal law. Non-lawyer agents have no responsibility to advise a client or even be aware of these issues. Lawyers on the other hand are required to be aware of the general law, and even if the individual lawyer does not have the expertise to advise you fully about, say, a taxation issue arising from your immigration case, he or she should at least be able to identify the problem areas and help you to obtain the necessary specialist help.
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各位看完上面是不是已经要吐血了？::zt81::
我来用中文最简单的解释下。::zt10::
migration agents：中文名是移民代理， 但国内的人为了好听，也把它翻译成移民律师。这个职业能帮助别人咨询移民，留学事务。
Immigration lawyers ：这才是真正的移民律师，全称是注册移民大律师。比移民代理更牛B，可以起诉联邦ZF呢~~~这个职业可以帮人咨询，评估，审理，上诉，等等。
综上所述：成为一名移民代理很难，要成为一名移民律师更难！
[ 本帖最后由 csc40 于 2008-12-26 23:24 编辑 ] |
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