Do You Even Need an Immigration Lawyer?
You fancy yourself as being pretty switched on.
You do your own tax return each year.
You’re one of those people who actually enjoys filling in the form for the Census when it comes around (no judgement, I am also one of those people).
And a visa application is really just a bunch of forms and documents, right?
You’ve read the Immigration website. You have a few friends who have been through the process.
There are online forums if you have any questions.
You’ve totally got this.
So do you really need some fancy shmancy immigration lawyer for your visa application?
The Short Answer?
I don’t know.
Maybe you need a lawyer. Maybe you don’t.
It’s a bit like asking whether you need insurance. Or whether a pregnant woman needs a doctor to give birth. For much of history, many people have gotten by without either. But whether you are one of those people, and how you define “getting by”, are more complicated questions.
Sorry – not such a short answer after all!
The Longer Answer
Strictly speaking, yes, you can submit a visa application on your own.
And this is a pretty big “but”…
A visa application may be one of the most important things you ever do – certainly in terms of the impact it could have on your life.
It could mean the difference between the success and failure of a key project in your company, or of the company itself.
It could mean the difference between keeping your family together and apart.
A visa application isn’t just lodging a form.
And it’s definitely not like that build-a-birdhouse DIY project you took on last year.
Things can go wrong.
And bad things can happen when they do.
So while a lawyer may not be compulsory, you might want to consider one.
Immigration is Always Straightforward, Until It’s Not
If you know exactly what visa you need to apply for (more on this below); if you understand the legislative requirements, the latest caselaw and relevant Immigration policy factors, and you are able to clearly and persuasively demonstrate how you meet these; if you understand the common and not-so-common traps that result in failure, and know how to navigate through them – then you probably don’t need help.
But what if that’s not the case?
What if you fall short on one or more of the visa criteria?
What if you’re like my client with that small conviction from 1997 for taking a snowmobile for a joyride at a ski lodge after one schnapps too many?
What if you’re looking to sponsor an employee who has a child on the autism spectrum?
Or what if – and this is the most common visa killer of all – you simply don’t know whether you fall short?
Ignorance is not always bliss.
If there’s something about your application that makes it a little more complicated, if you’re confused, or you just don’t know what you don’t know (more about that below) – you should have a think about whether you need some help.
You Don’t Know What You Don’t Know
When I was about 5 or 6 years old, my older brother performed my first tooth extraction.
My brother’s first plan, to use some string to tie my wobbly milk tooth to a door and then slam the door shut, proved infeasible. He just couldn’t get the string to grip to the tooth.
In the end, my brother took a tissue, grabbed my tooth, and yanked.
There was a lot of blood.
Again, who knew?
In any event, it worked. There’s a still a photo somewhere of me with a huge gap-toothed smile.
But does that mean a 10 year old should be performing dental work?
Of course not. The basic mechanics of extracting teeth is a simple enough concept for a 5 year old to grasp. But had we known more, we might have prepared for possible risks around infection, osteitis, nerve injury, tooth misalignment, jaw fracture, damage to adjacent teeth, osteonecrosis…apparently even death.
At the very least, my brother might have washed his hands first!
But we didn’t know any better.
Fortunately we dodged all those bullets – not because tooth extraction is simple, but because we were lucky.
The punchline: I’ve heard visa applications likened to pulling teeth – but I’d say most visa applications are far more complicated.
Just hopefully with less blood.
If You Can Do It Yourself, Your Lawyer Will Tell You
Sometimes the best reason to go see a lawyer is just to confirm that you don’t need one.
That’s not a waste of money. That’s due diligence. Either you’ll find out your matter is more complex than you realised, or your lawyer will confirm that you’re on the right track, and you can then navigate your matter with confidence.
A Better, Faster, Cheaper Way
Did you know there are over 140 visa options in Australia?
Knowing the right visa to apply for can save you a ton of hassle and money.
For instance, if you’re employing someone from overseas for a critical contract, you might think the TSS visa is the way to go.
But a 400 visa might actually be OK, and would save you thousands of dollars.
As well as time.
Is the temporary visa you’re looking at now the best way to get you to permanent residency, or is there another, quicker, pathway?
The best immigration lawyers look for ways to save you or your business money, and get you to an outcome as quickly as possible.
You Need Information You Can Trust
As I lamented in an earlier article, we live in a digital world, with infinite information available at our fingertips.
But that information is not always good information.
Google is no substitute for your doctor.
Or for your immigration lawyer.
Much of the information available online is incorrect, inconsistent, outdated, and just plain dangerous.
But what about information sourced from Immigration itself?
Well, that might be the biggest smokescreen of them all, which is why…
A Good Lawyer Will See Past the Smokescreen
You’ve read every word on Immigration’s website that you think might be relevant to your situation. And it looks pretty straightforward, right?
Remember these words: the Immigration website is not the whole story.
Again: the Immigration website is not the whole story.
I wish I could say you can trust the information you get from Immigration directly. But I can’t. Their website presents an incomplete picture, and obediently following their deceptively simple (or not-so-simple) instructions is not always in your best interests.
For more information, you could try calling Immigration’s 13 number – if you are willing to wait in a queue for 3 hours, only to be connected with a call centre operator who knows even less about immigration law than you do.
We have seen so many examples of applicants acting on advice from an officer at Immigration, only for things to go horribly wrong. They can give really, really bad advice.
For one visa subclass there might be thousands of pages of relevant Acts, Regulations, legislative instruments, policy and caselaw. Any word of which might be relevant to your case.
The information on the Immigration website is their best effort at condensing all these pages down to bite sized, easily digestible pieces. They necessarily leave things out so that anyone without legal training stands a chance of comprehending it.
They also leave out pathways and exemptions they do not necessarily wish to encourage people to follow.
As much as a smokescreen might simplify things and be pleasing to the eye, it can mask really important information. Stuff that could make or break an application.
“Policy” is what they call immigration guidelines given to officers to help them understand the Act and Regulations and how they should apply them to your application. Pretty helpful, right?
Except you can’t actually access the policy. Only registered lawyers and agents can.
And then – and this is the really big one – there is the unwritten policy…
The unwritten policy is more ambiguous and harder to pin down. The stuff you can only know from being neck-deep in it all day, every day, for years and years. That knowledge can come from observing patterns in decision-making, or from the current political environment; it can come from unspoken conversations between policy and processing sections, or directives from government about statistics they’re chasing or their latest reaction to bad media attention. All these things can prompt case officers to place more emphasis on one requirement or another, or change the onus of evidence required.
The best immigration lawyers see through the smoky haze and know the legislation, the case law the and policy – spoken or unspoken – that applies to your situation.
Advice Is a Form of Insurance
I once had an HR Manager for an infrastructure company come to me for advice.
Her company had just landed its first major contract for a road project in Melbourne. This contract was make or break: there were great hopes it would take the business to the next level in both turnover and reputation.
The linchpin for the project was a Head Engineer who needed to be brought in from Spain to lead the project, and my client was given the task of handling the visa application.
She read all she could, communicated with the Engineer and collected all his documents, and prepared and lodged the applications. She updated the business regarding Department processing times. The business communicated with the client that everything was on track.
Whew. Great job!
The Nomination application was refused.
The decision record said that the requirements of Regulation 2.72(11)(d) had not been met.
What the hell does that mean?
In short, it means that the nominee can only be engaged as an employee under a written contract of employment by the sponsoring employer or an associated entity of the employer.
So was my client. The business had a complicated corporate structure involving all manner of outsourced arrangements and contractors. My client didn’t fully understand how that would impact the application.
But it did.
The ramifications of a nomination refusal like this are far-reaching. The company had just spent about $15,000 on the first round of applications, and were suddenly looking at having to spend that again.
But even worse…
The first deadlines in the contract would not be met. The project faced delays, potentially of months, that would have meant they were in breach of their contractual obligations, and risked paying penalties – or worse, losing the contract all together.
How I fished them out of that mess is a story for another time. It wasn’t cheap. But cheaper than if they had continued to go it alone.
We have no hesitation in taking out insurance policies – liability insurance and workers compensation and health insurance and car insurance. We don’t know if we’ll ever need to make a claim, but there’s a value in being covered.
Think of professional immigration advice as another, different kind of insurance policy.
The Best Immigration Lawyers Will Save You Money
If you think hiring a professional is expensive, wait until you hire an amateur.
As we have all observed at one time or another, it’s often less work to start something from scratch than it is to fix something once it’s broken.
This is absolutely true of visa applications.
Imagine if the HR Manager in the example above had gone to a good immigration lawyer first.
It’s a common story. I’ve seen variations of this more times than I care to recall.
Also consider the grubby little upward trend in the price of application fees charged by Immigration in recent years.
If you have a family, the visa application fees charged by Immigration can now cost the same amount as a buying a car.
It’s a significant amount of money.
Even more significant if you have to pay twice.
So get it right the first time.
There’s a lot more to be said about how to save money on your visa application – keep your eyes peeled for a forthcoming article on this.
A Good Immigration Lawyer Will See the Big Picture
There are so many moving parts to the visa process.
Understandably, if you’re in an immigration bind, your focus is going to be on the issue sitting right in front of you.
Not only that, you’re going to be dealing with life “stuff” associated with it, like relationships and staffing etc.
A good lawyer won’t just answer the questions you ask – they will consider and answer the questions you should be asking – questions you never realised were relevant.
Sure, you want a visa. But what are you trying to achieve?
Do you want to stay permanently?
Is it more important for you to remain onshore with no working rights for several months, or to go offshore and apply for a permanent visa while working in your home country?
Is the visa a means to filling a position in your business, that might be filled more efficiently by other means?
Something that might get you out of a bind in the short term could be a massive issue for your immigration status in the long term.
Postponing an international holiday, for example, might mean the difference between being eligible for citizenship or not.
A good immigration lawyer will not just be thinking about the immediate legal consequences, but will also anticipate how any kind of action will impact your life or your business.
A Good Immigration Lawyer Has a Few Tricks Up Their Sleeve
I’m going to go over more tricks in future articles, but any immigration lawyer worth their salt will know a few “short cuts” to get you where you need to be.
There’s really no substitute for hard practical experience. After 10+ years in the trenches, you start to identify patterns.
Good, experienced immigration lawyers have seen tens of thousands of documents just like yours.
They can pick an inconsistency from a mile away.
They have an encyclopaedic familiarity with the mountains of relevant legislation, caselaw and policy. And they have an almost eerie sense of how a case officer thinks – more on this in our last article.
A good, experienced immigration lawyer knows what a ‘complete’ application looks like, what to include and, importantly, what not to include.
They know the difference between what the Immigration website says you should do, and what you really should do.
Which brings us to our next point…
You Need an Advocate on Your Team
When things get complex, Immigration has teams of lawyers working for them. So maybe you should have one too.
The difference between approval and refusal is often just a good written submission.
Theoretically, you could write your own submission. But basing yours on the few crumbs you found on the Immigration website, and that advice you got from @LegalEaglz2005 on some internet forum, is rarely going to cut it.
A good immigration lawyer can guide your decision-maker through all the legal intricacies of how you meet the relevant criteria, even where it might otherwise look borderline.
A good immigration lawyer speaks your case officer’s “language”, citing cases, legal instruments and obscure policies – a language we lawyers speak on a daily basis.
Have you ever sat in front of a white Word doc, cursor flashing, not knowing where to start?
A good lawyer always knows where to start.
And where to finish.
And they will argue the hell out of your case in between, constructing legal arguments whose inescapable conclusion can only be the approval of your application.
If You THINK You Can Do it on Your Own…You Probably Shouldn’t
When the stakes are high, “thinking” you can do it, is simply not a good enough threshold for risk management.
Similarly, if you’re not sure whether you need a lawyer…you almost certainly do.
As mentioned at the start of this article – if you can do it yourself, an immigration lawyer will tell you so. And our free visa application guides and other information on this website should help you get there.
Otherwise, I don’t really know if you yourself need a lawyer.
But whatever you do, do it with your eyes open.
Your visa application is too important not to.