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Practice Profile: Navigating the maze of migration law

Practice Profile: Navigating the maze of migration law

The issue of immigration in Australia is a highly controversial topic which frequently dominates Australia's political landscape. Stephanie Quine asks immigration lawyers how they navigate the…

The issue of immigration in Australia is a highly controversial topic which frequently dominates Australia's political landscape. Stephanie Quine asks immigration lawyers how they navigate the evolving maze of law and policy.

CONSTANT ARRIVALS: Migration lawyers say the number of changes to immigration laws are challenging.
Australian immigration law is an incredibly complex area spanning thousands of pages of decisions, judgments, statutes and regulations.

Navigating through the ever-changing web of skills tests, migration and citizenship regulations, and visa application and appeal processes is a daunting task - especially for someone without much knowledge or experience in the area.

Despite this, however, there are myriad migration agents acting in Australia, many with little more than a few weeks of basic training under their belt, advising on many aspects of immigration law.

In contrast, there are only 28 immigration law specialists currently practising in New South Wales. That equates to one lawyer in around 800 lawyers in the state.

One of them is Ray Turner, the principal solicitor of Turner Coulson Immigration Lawyers in Sydney, who is both an accredited specialist and a registered migration agent. Turner says he has sometimes had to clean up the carnage created by ill-equipped migration agents giving poor advice to clients.

"The quality of migration agents varies greatly," he says. "Some are out-and-out crooks, some cater to specific areas or ethnic regions, and some are very good."

And while the issue of rogue migration agents continues to be a problem, it is just one in the web of government regulation that Turner and other immigration lawyers work to untangle every day.

Dividing the inflow

Turner's practice can be divided into two distinct areas: one dealing with routine visa applications and cancellations for skilled migrants, students, parents and "good old fashioned" spouse applications - both heterosexual and homosexual; and the other centres on court work, which involves matters in the Migrant Review Tribunal (MRT), Refugee Review Tribunal (RRT), Administrative Appeals Tribunal (AAT), Federal Magistrates Court, Federal Court and, if all else fails, the High Court.

"When an application has been rejected, often that work comes to us, referred by other lawyers or migration agents because it's gotten beyond their level of expertise," says Turner.

"It is easier to get into a maximum security jail than it is to get into Villawood"

Ray Turner, principal, Turner Coulson Immigration Lawyers

Michael Jones is also an accredited specialist and has been a sole practitioner for over 10 years. He runs the small firm Migrantlaw from Sydney and tackles similar work to Turner.

"I've been doing quite a lot of student visa cancellation cases, but I don't recall when I ever did a student visa application - it's usually migration or education agents who do that," says Jones.

When students on visas in Australia get into trouble - either because of a failure to meet the attendance requirements or due to poor results - both Turner and Jones could be described as the "rescuers".

Jones and Turner also sit on a panel of lawyers - run by the NSW Bar Association and funded by the Department of Immigration - which advises those who appeal a decision of the RRT in the Federal Magistrates Court and do not have representation.

NSW Legal Aid's recent announcement that it would be dedicating more funding to refugee appeals through its civil law panel, on which Jones also sits, should generate more work for Migrantlaw.

But even if it doesn't, Jones will have his work cut out wading through the latest changes to immigration regulation.

Unending regulation

According to Jones, keeping up with such changes is "constant" and something which requires the heavy use of technology.

"You've got to make sure you have a subscription to the Attorney-General's Department that sends all the amendments," says Jones, adding that all those changes are also what keep him in business.

On 1 July this year, over 14 amendments to existing immigration legislation came into effect, including a new points test. From 1 July 2012, another points test, "Skill Select", will require the lodgement of an expression of interest (EOI) for skilled migration visas before an application can be submitted.

"I think it's going to be a bit of a disaster next year," says Jones.

"It's going to mean people will have to spend a large amount of money doing extra skills assessments, extra English language tests, and possibly translation tests to get points for their language.

"The best people are the people with the most options. If they look at Australia and see they've got to do all this, spend thousands of dollars and have no idea whether they'll be accepted or not, they will not try, and we'll miss out on the best."

Brett Slater, the head of Brett Slater Solicitors in Sydney, is another accredited immigration lawyer who feels frustrated with immigration law, having wrestled with statutory construction and transitional provisions for over 20 years.

"It's a political hot potato and views are so polarised ... but the all the detainees I met are just normal people with lives and jobs and wives and brothers and sisters"

Shane Roche, executive director, Shine Lawyers

"In 1989, when they brought in the Migration Legislation Amendment Act, there were just unbelievably complex changes to the law - so voluminous, so complex - that at one stage it went before a federal court judge and it was described as 'a dog's breakfast', " says Slater.

Communication void

To complicate matters further for immigration lawyers, their clients comprise a vast array of nationalities. Even for Jones, who speaks French, Italian, Spanish and Portuguese, language interpreters are often required.

"Unfortunately, the [romantic languages] are not as useful today as they once were. Now what you need is Punjabi or Vietnamese," says Jones, adding that he doesn't like to allow relatives of clients to do the interpreting, for professionalism, clarity and confidentiality reasons.

"In 1989, there were just unbelievably complex changes to the law... at one stage it went before a federal court judge and it was described as 'a dog's breakfast' "

Brett Slater, principal, Brett Slater Solicitors

Another issue is the tyranny of distance, with much of an immigration lawyers' work being conducted via email and phone. Jones, who runs his phone service through Skype and has a live answering service, says he sometimes never even meets his clients and that his small city office space is becoming increasingly redundant.

Real-time compassion

Seeing a client is, however, sometimes necessary, and Turner has done so for both asylum seekers in detention and during his work in criminal deportation.

"It is easier to get into a maximum security jail than it is to get into Villawood," says Turner, explaining that red tape makes it more difficult to make an appointment.

"It's run by a private company and staff don't have the breadth of experience that prison officers - who are used to facilitating a person's right to legal advice - have. I feel more comfortable in a jail than I do in Villawood, because you're made more welcome. Yet the people in Villawood have an absolute right to be represented."

Another lawyer confronting the issues surrounding immigration detention is national plaintiff litigation firm Shine Lawyers' executive director, Shane Roche, who, while on Christmas Island, encountered a similarly unwelcoming atmosphere.

Roche is acting pro bono for asylum seekers who are currently in court awaiting the outcome of the coronial inquest into the Christmas Island boat tragedy that will determine the cause of death of their relatives and friends. While visiting the island, he was asked to advise some other detainees on matters unrelated to the inquest, but was refused entry to the detention centre due to 'operational requirements'.

Three letters and an application to the Federal Court later, Roche was granted access but he says he still doesn't know why he was originally rejected.

"It's a political hot potato and views are so polarised ... but the all the detainees I met are just normal people with lives and jobs and wives and brothers and sisters," says Roche, adding that compassion is appropriate in situations where people are suffering with such unique pieces of psychological baggage.

But despite the difficulties encountered, Turner says political developments always lead to "a bit of an upturn" in work for immigration lawyers, because historically there has been "a push to remove lawyers from the system".

"Whenever they've tried to limit the access to the courts, they've in fact increased it because the appeals go up."

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Practice Profile: Navigating the maze of migration law
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