“The great thing from the migration agents' point of view is that the barristers are not looking to make the clients their own clients,” he said.

“There's no competition for the client – that's not the model we work under. We're not looking to pinch the client or interfere with that relationship.”

Rather, he suggested, migration agents could work more closely with barristers to take advantage of their advice and advocacy expertise.

Typically, barristers are brought in at the appeals stage of a migration case, but Mr Howard suggested they could play a larger role, offering advice or appearing before tribunals.

“If you put migration agents in the position of solicitors, then what the Bar can offer migration agents is an add-on – the ability to access advocacy or advice that is an added resource on a particular case,” he said.

The complexity of the migration legislation – including the oft-amended Migration Act as well as ministerial directives – meant migration agents are increasingly in need of expert legal advice, he suggested.

He encouraged the Bar to promote direct briefing to migration agents, who were often unaware of the options.

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“I think [there] might have been an idea that they had to go through a solicitor, and no doubt there will be cases where there should be a solicitor,” he said. 

“But for some of these things that’s not necessary, and the Bar Rules now all allow for a direct brief in the appropriate cases.”

The view was echoed by WA barrister Jason Raftos, who is also a registered migration agent and works across migration and employment cases.

Both Mr Howard and Mr Raftos will be speaking on the topic at the Migration Institute of Australia’s National Conference held in Perth at the end of the October.

“Agents are entitled to appear at the [Migration Review Tribunal] and the Refugee Tribunal. But they might prefer to brief a barrister to do it because advocacy is our thing,” Mr Raftos said.

“If you're going to have lay people as [migration] agents, then it's a good thing that they can work with barristers because they're going to have questions which they may need extra specialist advice on.”

However, he said his experience showed few migration agents were aware of direct briefing, with most of his work funnelled through solicitors.

He speculated that costs may be an issue, but also suggested direct briefing may encourage more migrants to seek expert legal advice.

“The best option is to have a solicitor involved, but there are costs implications – I'd rather they come directly to us than not at all,” he said.

He reiterated Mr Howard’s view that barristers were a complement, not a challenge, to migration agents.

“As a barrister, I'm not competition to migration agents. We do a particular piece of work on instruction from the instructor,” he said.

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