New Rules for Lawyers and Immigration Assistance at the Administrative Appeals Tribunal

The rules have changed.

If you (or someone you know) has experienced a visa application refusal or has had their visa cancelled, and an Administrative Appeals Tribunal (“AAT”) review is available, this post has relevance to you.

Immigration Assistance

Section 276 of the Migration Act 1958 (the “Act”) provides for the definition of “Immigration Assistance”. The definition includes situations where a person uses their knowledge or experience of migration procedures to provide advice, and to prepare visa applications and visa cancellation review applications. Preparing materials for a review application with the AAT in relation to a visa application or visa cancellation matter and representing the visa applicant or visa cancellation review applicant, are also activities included in the definition. Assisting businesses with nominating or sponsoring an employee for a visa, or for helping a person with a request for Ministerial Intervention, also fall into the definition provided by the provision.

Anyone that wants to provide Immigration Assistance has to be a registered migration agent, pursuant to section 280 of the Act. That provision creates this restriction, but also provides for some exceptions. A close family member for example can provide Immigration Assistance (though it is rarely advisable that they do!). Parliamentarians are exempt, as are governmental officials. A business that is nominating or sponsoring an employee is exempt.

Legal practitioners (“lawyers”) are now exempt – they were not exempt before 22 March 2021.

Prior to the change, a lawyer was able to provide Immigration Legal Assistance. That term differed from Immigration Assistance. Immigration Legal Assistance mostly related to representing clients in Court. Section 277 of the Act was relevant at that time. That section has been removed from the legislation and the definition no longer exists.

So, what does all this mean?

AAT Immigration Assistance matters

As explained above, up until 22 March 2021, unless an exemption applied, anyone that wanted to provide Immigration Assistance had to be a registered migration agent. Solicitors were not exempt.

Before that date, if a visa applicant experienced a refusal, or a visa holder experienced a visa cancellation, they could seek advice and assistance to challenge that decision with the help of their legal practitioner – but only if the lawyer was also registered as a migration agent.

Registration was costly and created various administrative burdens. For example, a service agreement that the law firm could use with any client in the world had to be modified if they were to provide Immigration Assistance to a client. Only lawyers with a serious interest in immigration law would pay the high additional costs and agree to additional compliance burdens, including regulation under their both the legal profession of their State or Territory and also of the Migration Agents Registration Authority.

Previously, a client that chose a legal practitioner to assist them with their Administrative Appeals Tribunal (“AAT”) matter had a lawyer that was willing to put their money where their mouth was. Only those practitioners with a genuine interest in immigration law would take the additional steps and accept the ongoing expense. It is far more expensive to pay annual costs to be a registered migration agent than to be a solicitor. Previously, the practitioner had to pay for both of these costs.

Some lawyers not only became registered migration agents, but they also decided to specialise in Immigration law. Some undertook formal academic training, including Graduate Certificates, Graduate Diplomas, and Masters of Australian Immigration Law.

Choosing an Immigration Advisor for your AAT matter

Since 22 March 2021, the restriction on lawyers that want to provide Immigration Assistance was removed. That means that any legal practitioner (even one without any special or particular interest in Australian Immigration law) can now help represent your interests with an Administrative Appeals Tribunal matter – or with any other aspect of Immigration Advice.

When selecting a lawyer to assist you, we suggest that you consider choosing a practitioner that specialises in Immigration law. Australian Immigration law is notoriously complex and convoluted. The Act was written more than 60 years ago and has undergone countless revisions and updates. It is long overdue for a re-write. The Migration Regulations 1994 (the “Regulations”) were promulgated more than a quarter of a century ago. The Regulations have been changed even more frequently than the Act.

The Administrative Appeals Tribunal hears visa application refusal and visa cancellation matters that have been determined by the Department of Home Affairs in first instance. Naturally, the complex provisions of the Act and the Regulations are applied in the review process. The AAT has special procedural rules. They differ from the processes and procedure used in State / Territory and in Commonwealth Courts.

You should select an experienced Immigration Lawyer to be your guide.

Conclusion

The Potts Lawyers Immigration Law team specialises in Australian Immigration law matters. We don’t practice in family law. We don’t do Wills and Estates. We can’t help you with a Conveyance or with a Property law matter. But we can help you win at the AAT.

If you or someone you know has experienced a visa application refusal or a visa cancellation and need help with an Administrative Appeals Tribunal review application, please contact the Potts Lawyers Immigration Law team without delay. We are experienced Immigration Lawyers.