Migration Agent vs Immigration Lawyer: Who Should You Hire?

Should you hire a migration agent or an immigration lawyer?

Both a registered migration agent and an immigration lawyer may lawfully prepare and lodge an Australian visa application, and both may represent an applicant at the Administrative Review Tribunal. Neither profession has a monopoly on visa work. The choice matters when a matter carries a legal problem as well as a paperwork problem.

Most visa applications are, at heart, an evidence exercise. The law sets out what must be proved. The applicant must gather the material that proves it, present it in the form the Department expects, and answer any request for more information before the date given. A competent registered migration agent does that work every day, and does it well.

Some matters are different. The question is no longer what evidence to file but what the law permits. Whether Schedule 3 applies and whether there are compelling reasons to waive it. Whether a sponsorship limitation bites. Whether a refusal was affected by a failure to give particulars under section 57. Whether a second protection application is barred by section 48A. Whether a cancellation decision carries a right of review at all. These are questions of statutory construction, and they are answered by reading the Act, the Regulations and the case law rather than by filling in a form correctly.

There is a second question that is easy to miss. A migration problem is often part of a larger legal problem. A partner visa applicant separating from a sponsor may need family law advice at the same time. A person facing visa cancellation on character grounds has a criminal matter running alongside it. An employee whose sponsorship collapsed may have an employment claim. A migration agent who is not a lawyer cannot advise on any of that, and must refer it out. A law practice can take the whole picture into account when deciding what to do first.

So the honest answer is that it depends, and it depends on three things. The first is whether the outcome turns on evidence or on a contested point of law. The second is whether the matter is likely to move beyond the Administrative Review Tribunal, because only an Australian legal practitioner may act for a person in court. The third is whether there is a second legal issue attached to the migration issue.

Price is not on that list, and it should not be. Fees are set by the individual practice, not by the profession. A registered migration agent is not automatically cheaper than a lawyer, and a lawyer is not automatically more expensive than an agent. The useful comparison is between two written quotes for the same defined scope of work, not between two professional titles.

My Migration Lawyers acts in partner visa matters and protection visa matters, including refusals of both. The sections that follow set out what each profession is, how each is regulated, and where the practical differences actually fall.

What is a registered migration agent?

A registered migration agent is a person registered by the Office of the Migration Agents Registration Authority to give immigration assistance under Part 3 of the Migration Act 1958. Registration is what makes the work lawful. Giving immigration assistance without being registered, or without falling within an exception, is an offence.

Section 276 defines immigration assistance. In plain terms, a person gives immigration assistance if they use knowledge of migration procedure to assist with a visa application, a request for ministerial intervention, a cancellation matter or a review, by preparing or helping to prepare the application, advising on it, or representing the person in dealings with the Department or a review body. Section 276 also carves out purely administrative assistance, such as clerical work or passing on a document, which anyone may do.

A registered migration agent may therefore do the core of the work on a visa matter. That includes advising on which visa subclass fits, assessing eligibility against the criteria, listing the evidence required, preparing and lodging the application in ImmiAccount, corresponding with the Department, responding to a request for more information, and lodging and running an application for review at the Administrative Review Tribunal. Under section 66 of the Administrative Review Tribunal Act 2024, a party may choose another person to represent them, and a registered migration agent may be that person.

Registration is not a formality. An agent must hold the prescribed qualification, satisfy the Authority that they are a fit and proper person, hold professional indemnity insurance, complete continuing professional development, and re-register each year. The Authority publishes the Register of Migration Agents, which anyone may search.

Registered migration agents are bound by a Code of Conduct with statutory force. The current Code is prescribed by the Migration (Migration Agents Code of Conduct) Regulations 2021 and took effect on 1 March 2022. It governs how an agent deals with clients, how fees must be explained and charged, how client money and records must be handled, how employees are supervised, and how complaints must be answered. A breach can lead to a caution, suspension, cancellation of registration, or a bar on re-registering for up to five years.

Two points follow from this, and both are often stated incorrectly online. The first is that registered migration agents are regulated, and regulated by a Commonwealth authority with real sanctions. The second is that the scope of what an agent may do on an ordinary visa application is wide. On a straightforward subclass 820 partner visa application, there is very little that a lawyer may do which a registered migration agent may not.

Both a registered migration agent and a lawyer are appointed in the same way. The Department is notified using Form 956, Appointment of a registered migration agent, legal practitioner or exempt person. Form 956A appoints an authorised recipient, which is a different thing and does not confer any authority to act.

What is an immigration lawyer, and what changed in 2021?

An immigration lawyer is an Australian legal practitioner who practises migration law. The practitioner holds a practising certificate issued by the legal regulator in their state or territory, and gives immigration assistance in connection with legal practice rather than under a migration agent registration.

This is the point on which most online comparisons are now out of date. Until 2021, a lawyer who wanted to do migration work had to register as a migration agent as well, and was regulated twice over. The Migration Amendment (Regulation of Migration Agents) Act 2020 ended that arrangement. From 22 March 2021, an Australian legal practitioner holding an unrestricted practising certificate is no longer eligible to be a registered migration agent. Practitioners who held both were removed from the Register of Migration Agents.

The practical consequence is worth stating plainly, because it worries people. If you search the Register of Migration Agents for your immigration lawyer and cannot find them, that is what Parliament intended. It is not a sign that the lawyer is unqualified or unregistered. The correct check for a lawyer is the register of practitioners kept by the legal regulator in the state or territory where the lawyer practises, not the Register of Migration Agents.

The Act draws a line between an unrestricted legal practitioner and a restricted legal practitioner. An unrestricted legal practitioner is a practitioner whose practising certificate is unrestricted, and may give immigration assistance in connection with legal practice without any migration agent registration. A restricted legal practitioner is a practitioner whose practising certificate is restricted, typically a lawyer in the supervised early years of practice. A restricted legal practitioner may give immigration assistance where properly supervised within a legal practice.

Beyond that, a lawyer may do things that fall outside immigration assistance altogether. Only an Australian legal practitioner may act for a person in court proceedings. A registered migration agent may act on a matter up to and including the Administrative Review Tribunal, which is not a court, but cannot file for a person in the Federal Circuit and Family Court of Australia or the Federal Court and cannot appear as an advocate there. A lawyer may also advise on the other areas of law that attach themselves to migration matters, and may give an opinion that is meant to be relied on in a dispute.

None of this makes one profession better than the other. It describes two different scopes of practice with a very large area of overlap. For a great many visa applications the overlap is the whole of the work.

How each profession is regulated, and where a complaint goes

The two professions are regulated by different bodies, under different rules, with different complaint pathways. This matters if something goes wrong.

Registered migration agents are regulated by the Office of the Migration Agents Registration Authority, which sits within the Home Affairs portfolio. The Authority registers agents, monitors compliance with the Code of Conduct, investigates complaints from clients, and imposes sanctions. A complaint about a registered migration agent goes to the Authority.

Lawyers are regulated by the legal services regulator in each state and territory under the legal profession legislation applying there. In New South Wales, Victoria and Western Australia that is the Legal Profession Uniform Law. The regulator issues and renews practising certificates, sets professional conduct rules, and receives complaints about a lawyer's conduct or costs.

The costs rules are the clearest practical difference. Legal profession legislation requires a law practice to make costs disclosure to a client before or as soon as practicable after being retained, to explain how the legal costs will be calculated and what the client can expect to pay, to notify the client of any substantial change, and to enter into a costs agreement where one is used. It also gives the client a right to have the costs assessed by an independent assessor if they are disputed. The Code of Conduct imposes its own fee obligations on registered migration agents, including a written statement of services and fees and rules about client money, but the mechanism is different and so is the body that enforces it.

Both professions must hold professional indemnity insurance. Both must keep proper records and account for money received. Neither profession sets or caps fees, and no regulator publishes a scale that either must follow. That is why a written scope and a written fee are worth more than a professional title when comparing two quotes.

Does legal professional privilege apply to migration advice?

No, not unless the adviser is a lawyer. Client legal privilege protects confidential communications made for the dominant purpose of a lawyer giving legal advice to a client, and the equivalent common law doctrine of legal professional privilege works the same way. Sections 117 to 119 of the Evidence Act 1995 tie the protection to a lawyer. Advice from a registered migration agent who is not also a lawyer does not attract it.

In most visa applications this makes no practical difference, because the whole point of the exercise is to put the material in front of the Department rather than to keep it back. Privilege becomes significant in a narrower set of matters. Where a person needs to explain a difficult fact before deciding what to disclose, where there is an allegation of a bogus document or false information, where a cancellation on character grounds is in play, or where there is a related court case, the ability to discuss the position candidly and in confidence has real value.

This is not a criticism of registered migration agents. It is a feature of the law of evidence, not of anyone's competence, and it is fixed by who the adviser is rather than by how carefully they work. It is simply a factor to weigh when the matter involves facts that are hard to talk about.

The same reasoning applies in reverse. Privilege is not a reason to engage a lawyer for an ordinary application where there is nothing sensitive to protect. A person weighing up a visa refusal and the review options should ask what the matter actually needs, and not pay for protections that will never be used.

Which matters call for a lawyer, and which do not

The useful question is not which profession is better. It is what the particular matter requires. Some matters are squarely evidence exercises. Others turn on a point of law from the first day.

A matter is more likely to need a lawyer where one or more of the following is true. The applicant has no substantive visa and Schedule 3 criteria must be addressed. A sponsorship limitation under the Migration Regulations is in issue. A visa has been refused and the reasons disclose a legal error rather than a gap in the evidence. A visa has been cancelled, or a notice of intention to consider cancellation has been received, particularly on character grounds. There is an application bar, such as the bar on a further protection application after a refusal. The matter may need to go to court after the Administrative Review Tribunal. There is a related family law, criminal or employment issue. There is a disclosure problem, meaning a fact that must be dealt with but that is difficult to state.

A matter is usually well served by a registered migration agent where the criteria are clear, the applicant meets them, the evidence exists and simply needs to be organised and presented, and there is no live legal dispute. A first partner visa application by a couple with a long, well documented relationship is the ordinary example. So is a straightforward renewal or a further application made in time on the same facts.

Two warnings apply whichever profession is engaged. The first is that time limits do the most damage. A review deadline after a refusal or a cancellation is short and is applied strictly, and a missed deadline usually cannot be repaired by anyone. If a decision has been made, the date on the notification matters more than the choice of representative. The position after a protection visa refusal is a clear example, because the window is measured in days and the consequences of losing it are severe.

The second is that the work is only as good as the instructions. Neither an agent nor a lawyer can present an account the client has not given. The representative's task is to take the client's own account and evidence and put it in the form the law requires, and the client remains the one who decides what is advanced.

Some practices include both. A law practice may employ registered migration agents, and a migration practice may work alongside lawyers. Where that is the case, the professional title on the front door tells you less than the answer to a simple question: who will actually do the work on this file, and what are they qualified to do if the matter becomes contested. Ask for that answer by name before signing anything.

How to check that your representative is authorised

Check before you pay anything, and check in the right register. The register depends on which profession the person belongs to.

For a registered migration agent, search the Register of Migration Agents published by the Office of the Migration Agents Registration Authority. The register shows whether the person is currently registered, their agent number, and whether any sanction has been recorded.

For a lawyer, search the register of practitioners kept by the legal regulator in the state or territory where the practice is based. That search will confirm that the practitioner holds a current practising certificate and show any conditions on it. Do not expect to find a practising lawyer on the Register of Migration Agents, for the reason set out above.

Then ask for four things in writing before the engagement begins. First, the name of the individual who will do the work and their registration or practising certificate details. Second, a scope of work that states exactly what is included, in particular whether a review application is inside or outside the fee. Third, the total fee, what triggers each payment, and what is charged separately, including any Department charge. Fourth, how the matter will be reported to you and how often.

Ask one further question, because it prevents most later disputes. Ask what happens if the application is refused: who runs the review, on what terms, and at what cost. The answer should be given before the first application is lodged, not after a refusal arrives.

Keep the written record. A written scope, a written fee and written advice are what make it possible to hold any representative to what was agreed, and they are what a regulator will ask for first if a complaint is ever made. Verbal assurances given in a first meeting are worth very little later, whichever profession gave them.

My Migration Lawyers is a law practice led by Principal Lawyer Weiwei Zhang, acting in partner visas, protection visas, and refusals and cancellations of both. The firm works on fixed fees agreed in writing before the matter starts. To have a matter assessed, request a consultation and set out the visa involved, any decision already made and the date on the notification.