How migration lawyers feel about Labor’s crackdown on ‘futile’ claims

In an address to the Migration Institute of Australia last week, Assistant Minister for Citizenship, Customs, and Multicultural Affairs Julian Hill unveiled the Albanese Government’s plans to target lawyers and migration agents who profit from visa applications and protection claims that have little to no prospects of success, as part of its overarching efforts to cut Australia’s migration figures.

The Department of Home Affairs, he said, has been tasked to consider policy options to address regulatory gaps that allow lawyers to engage in such conduct. “Ultimately, I do not have confidence in the policy regime around how lawyers interact with the migration system,” Hill declared.

The assistant minister called out what he called “some of the worst, sharpest practice” undertaken by lawyers, and pointed to a recent example identified by the department in which a lawyer “lodged a high volume of employer-sponsored visa applications across multiple occupations and industries”, which included multiple sponsoring entities operating from the same premises, including businesses linked to previously sanctioned or liquidated entities, and some sponsoring entities that featured appointed temporary visa holders as company directors.

“We have also seen some pretty outrageous online advertising by lawyers,” Hill continued.

“Ads that appear to coach people on how to claim they're bisexual when they’re not, or how to convince the Department they're being persecuted when they're not, in order to support a protection claim.”

“That's not legal representation. It's a misuse of the migration system for profit.”

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One proposed change to the Migration Agents Code of Conduct, Hill said, “will establish a clearer standard whereby a RMA would be prohibited from assisting with an application they know, or reasonably ought to know, does not have a reasonable factual or legal basis”, to push back on what he called “futile” applications.

Supporting unmeritorious claims “comes at a very real cost to Australia”, Hill continued: to the taxpayers, the merits and the judicial review systems, to public confidence, and to genuine applicants in the system, “who see their wait times blow out”.

“If you're taking money from people and unlawfully providing migration advice, Home Affairs will be paying a lot more attention and coming after you,” Hill concluded.

Striking the right balance

Responding to the speech, Law Council president Tania Wolff pointed out that migration lawyers “are bound by the same stringent ethical and professional obligations as every other lawyer”, including the duty never to mislead a court, tribunal or government decision-maker, and that state and territory regulatory frameworks are in place to ensure consequences in the event of breaches.

If the Home Affairs department holds evidence of misconduct, she said, “it should be referred to the relevant regulator without delay”.

“Regulators can investigate and impose a range of sanctions, including fines, conditions on a practising certificate, suspension or removal from practice. Courts can also refer practitioners to regulators,” she said.

More broadly, Wolff stressed that “great care is needed” to avoid suggesting systemic failure across the legal profession.

“Migration law is complex, the stakes for clients are profound, and independent legal advice is part of how the system works fairly,” she said.

Moreover, she added, the Migration Act 1958 requires lawyers to certify that proceedings have reasonable prospects of success, and those who encourage hopeless proceedings can face personal costs orders.

Ethos Migration Lawyers principal Maria Tseprailidis told Lawyers Weekly that baseless protection claims “have been a concern for many years”, and that her firm has seen firsthand the long-term impact of poor advice and questionable migration strategies on clients’ lives. As such, she and her colleagues welcome the federal government taking a more active role in ensuring optimal standards.

However, she added, any regulatory response must be “balanced, proportionate, and carefully implemented”.

“The overwhelming majority of immigration lawyers and registered migration agents act ethically, professionally and in their clients’ best interests. In the current political climate surrounding migration, there is a risk that the actions of a small minority could unfairly tarnish the reputation of an entire profession that works diligently every day to support clients through complex and often life changing matters,” she said.

Crossover Law Group founder and principal Marial Lewis offered similar sentiments, expressing support for a bolstering of the migration system’s integrity whilst also stressing the need to distinguish between a matter having poor prospects and a matter being improper or encouraging clients to lie or provide wrong or misleading information and documents that the practitioner knows of.

“Assessing prospects is already fundamental to competent legal practice. Solicitors are already subject to very strict professional and ethical obligations around competence, honesty, integrity and the proper administration of justice. A lawyer cannot simply disregard those obligations because a client wants to pursue a particular outcome. The solicitor’s duty to the court and administration of justice is paramount and they can only lodge applications that have reasonable prospects of success,” she said.

Lewis also said care must be taken in defining futility too broadly: “A client may have a poor prospect of obtaining a visa, but there can still be legitimate legal reasons for seeking review. The Administrative Review Tribunal is an important part of the statutory migration framework and, in some circumstances, a tribunal decision is necessary before a person can seek ministerial intervention,” she said.

What is therefore needed, she said, is better enforcement of genuinely unethical and abusive conduct, “rather than creating a chilling effect on practitioners who are properly advising clients about difficult cases and constantly changing laws and policies that make it complex or acting for clients who are legitimately exercising their legal rights”.

“Good migration practice is about giving clients frank advice about their prospects and risks, checking the law, not selling false hope, while still ensuring that people can access the legal and review pathways Parliament has actually provided,” she said.

None of this, she noted, should distract from the lawyers, migration agents, and unregistered providers who take advantage of vulnerable clients, and/or whose unethical behaviour encourages claims that have no proper basis. “That conduct should be taken seriously and there should be consequences,” she said.

Ensuring proper regulation of bad actors

Australian Migration Lawyers managing partner Perry Q Wood pointed out – as Hill did in his address – that, in 2021, more than 1,700 unrestricted legal practitioners were removed from the Register of Migration Agents and lawyers, and that those individuals are now regulated under state and territory regimes.

Wood said that the minister was “completely correct” to note that complaints about migration lawyers mostly get lost in the shuffle, but added that it’s not because state legal regulators don’t care. Those bodies, he said, “have rightly had to prioritise trust account defalcations and other serious misconduct by lawyers more broadly, not just migration lawyers”.

Truthfully, “the situation is far worse than Mr Hill touched on”, noted Wood, who said he has taken on cases, at the request of state regulators, from multiple firms that have entered liquidation. “Recently, we have seen migration lawyers subject to investigation simply shut down in one state and pop up under a new brand in another state.”

“It is completely disheartening to see these lawyers pop up elsewhere, under a new brand, a new structure, with a clean slate, when vulnerable clients have been left traumatised,” he said.

What is needed, Wood argued, is for state legal regulators to be properly funded by the federal government, so that they may oversee the activities of practitioners – without it, he said, “enforcement has fallen to people like me”.

“In the past couple of years, I've spent more than $500,000 of my own money launching civil action against bad actors. That's work a properly resourced regulator should be doing, not an individual,” he said.

The answer, he posited, “isn't to drag lawyers back under the very Department we challenge on behalf of our clients”.

“Independence from Home Affairs is the whole point. The answer is for the Commonwealth to fund state legal regulators for the job it gave them,” he said.