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Changes and challenges in migration law

Post-pandemic, there have been a number of changes in the migration space, as well as a recent review of upcoming challenges. Here, migration lawyers discuss those challenges and how lawyers in this space can best serve their clients moving forward.

user iconLauren Croft 11 May 2023 SME Law
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The Minister for Home Affairs has recently announced significant changes to Australia’s skilled migration program, prioritising it and raising the cost of applying for an Australian visa from July.

This followed the completion of a “comprehensive review of Australia’s migration system” to ensure it’s meeting existing challenges and setting a clear direction for decades to come.

Following these changes, Lawyers Weekly spoke to four migration lawyers on the challenges in the space right now and how lawyers can best advise their clients moving forward.


After COVID-19, the migration system has experienced “drastic changes”, but Madison Marcus partner George Botros was confident any challenges arising from these changes could be mitigated.

“As lawyers, we enter the profession with a strong understanding that there is a constant need to keep ourselves updated with the latest directions by the department or any other shifts in the sphere of our practice area. We highly appreciate that the resources we access on a daily basis are vast, readily available and are updated instantly,” he said.

“The department is incredibly efficient in notifying any changes, and we find our professional resources very handy. We also take on the responsibility to be proactive in seeking information and updates from our fellow practitioners, publicly available resources, from media publications, community groups to social media. Of course, we always put our professional standards in mind and exercise critical information selection when we venture out to find external, secondary resources.”

While keeping up with these changes can be “difficult to navigate” at first, Carina Ford Immigration Lawyers managing partner Carina Ford said that there are a number of other key challenges overriding these changes.

“It is also a challenge to assist cohorts of applicants where there has been no change for an extended period of time — for example, failed asylum seekers who arrived by boat that are left with no viable option. It is difficult for this cohort to see many changes to other applicants that don’t apply to them. These applicants also tend to be vulnerable and have been [in] limbo for over 10 years,” she explained.

“The vulnerabilities of clients that remain in immigration detention, in particular, those that were initially released due to the decision of Pearson v Minister for Home Affairs [2022] FCAFC 203 whom as a result of the Migration Amendment (Aggregate Sentences) Act 2023 have been redetained.”

In addition, Tang Law partner Sophie Manera told Lawyers Weekly, communicating these issues and changes to clients can also be an obstacle.

“Lawyers will need to quickly familiarise themselves with these changes, and ensure they are communicated to clients in a simple and understandable manner. This is not always easy, given that so far, we have been provided with limited information about these changes, and each client’s situation is unique,” she said.

“Migration lawyers are used to constantly learning, as Australia’s migration program has undergone many changes in the decade that I’ve been practising. We’re used to constantly reading decisions and articles and discussing changes with our colleagues and networks. I can’t think of any area of law that changes so much.”

Particularly for clients of migration lawyers, timing can be critical.

“Timing is a crucial aspect for our clients. It affects their ability to work, to arrange their lives in terms of housing, finance, their dependent family members, both here in Australia as well as overseas and their ability to move forward with their new future in Australia. For our office and many other migration professionals, the significant processing times and visa processing backlogs have been a constant issue,” Mr Botros added.

“We are excited and appreciate that the Australian government is making positive moves to streamline visa applications and restructure the immigration system. For all it’s worth, we hope that processing times for merits review bodies continue to improve and [that] delays are further minimised over time. This will significantly impact our services to the tribunals, courts and most importantly, our clients.”

This is particularly prevalent with things like visa proceedings Estrin Saul Adelaide practice leader Shaun Wyn-Jones said that “significant changes” would come from the recent migration review and that migration agents are now working in unison with lawyers.

“Immigration law is fast-paced, which is one of the reasons why many of us enjoy working in this space. Managing client expectations amid delays in visa processing has been an ongoing challenge, but we have seen this improve in recent months. We’re cautiously optimistic this trend will continue.

“Increased funding for the courts and tribunals and the $90 million announced in last night’s budget for the new tribunal is a step in the right direction. We must also continue to embrace technology and build on the significant strides taken in this area during the last few years,” he explained.  

“While from the outside, it could be seen that there is increased competition between migration lawyers and agents, we are actually seeing the two working more closely together as law firms recognise the specialist expertise agents can provide to their firms.”

Similarly, both Ms Manera and Ms Ford said that lawyers aren’t necessarily fighting a battle to define themselves compared with migration agents — and that since deregulation, there has been a better distinction between the two.

“Lawyers define their role as migration professionals who deal with more complex matters — judicial review, merits review at the Administrative Appeals Tribunal, visa cancellations, and refugee law, amongst many other issues. There are just some issues where a migration agent will say, ‘go and see a lawyer’,” Ms Manera said.

“There is certainly a role for migration agents too. Our migration system is complex, and an agent assisting with an employer-sponsored visa or family reunification visa is invaluable.”

Moreover, clients are increasingly self-aware, and thus able to distinguish a migration lawyer from a migration agent themselves, according to Mr Botros.

A typical client nowadays can easily get access to public resources with the help of the internet, social media and search engines. They are therefore quite aware and able to educate themselves on the differences between a migration lawyer and migration agent’s scope of work,” he outlined.

“Oftentimes, matters that are purely migration or visa application-based can be assisted by agents, while those involving other legal issues such as employment law-related matters, dependency and capacity, character concerns or merits/judicial review would require services from a lawyer with substantive legal backgrounds. We notice that clients generally have a good understanding of how complex their matters are, and so they tend to make reasonable choices.”

In terms of what needs to change moving forward, however, Ms Ford said that increased funding for legal representation is needed, as well as more online measures for hearings rather than via telephone.

Since the COVID-19 pandemic, most judges are receptive to accepting an electronic bundle of authorities and/or court or appeal books; however, it would be great to see this consistency applied throughout,” she said.

Knowledge sharing within the industry, added Ms Manera, would also result in a host of benefits.

I would love to see more accessible knowledge-sharing in the industry. Lawyers in community legal centres and small firms often don’t have the advantage of attending all industry conferences, events and seminars each year, where lawyers gain valuable insights from judges and tribunal members,” she said.

“It would be great if lawyers and barristers with specialist expertise in areas such as judicial review, refugee law, or character issues provided free webinars to members of the industry to assist and upskill others. This will benefit the courts, tribunal, and clients.”

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