Written By Ariane Ang And Kit Williams

What is Migration LaW?

Migration law is Commonwealth law that regulates who has the right to enter and remain in Australia. This area of law changes frequently and has been heavily impacted by the Covid-19 pandemic. It deals with visas for all purposes including refugee, partner, student, and working visas. Migration agents will generally be used for standard visa applications, while a migration lawyer will generally be engaged to advise on more complex migration issues such as emergency evacuation and refugee visas.

Nina works as a Senior Lawyer at Carina Ford Immigration Lawyers where her work involves Character Cancellations and Migration Fraud as well as appearing for clients in the Administrative Appeals Tribunal. She has extensive experience in lodging all types of visa and citizenship applications, including medical treatment, carer and parent visas.

INTERVIEW

What drew you to migration law? Was it an area of practice that you were interested in early on in your career?

I probably have a bit of a different story of how I got into migration law. I posted my resume to Carina Ford in 2011 during my first year of law school. I was really posting it out to any law firm in the area to try and get some experience. Luckily for me Carina happened to be hiring paralegals at that point. I guess the rest is history. 10 years later, I stayed and never left

I think though, coming from a migrant background, I did have some sort of idea that I wanted to work in an area that was about helping people. Once I started to see the work the lawyers were doing and the outcomes that could be achieved, it really solidified that this was something I wanted to do. A client once said to me that what we had done had really changed his family for generations. That type of feedback and the outcomes that you see... It really is worthwhile

What advice would you give students who are unsure of which area of law they would like to practise in?

I would suggest that it is really important to get as much experience in as many different areas as possible. I know that sounds different to what I have done but I definitely didn't want to work in commercial law and I had done a little bit of criminal law and knew that wasn't for me either. I would say do the clerkships, take up the internships, do summer programmes, do exchanges, apply for the jobs on Seek that are looking for paralegals. Getting your foot in the door at smaller firms is actually invaluable. You learn how to become a jack of all trades. Knowing how to answer the phones, knowing how to do trust accounting, knowing how to do petty cash. Whilst these skills might not seem important while you're starting out or studying, as you climb up higher and become an associate or senior associate it becomes more and more important to know these skills. So I would recommend that anyone that knows they want to move into private practice, start out at some of those smaller law firms.

Could you give us an overview of a day in your life as a migration lawyer?

In terms of my day-to-day, again, I'm a little bit different. I tend to be a bit of an early morning person and then a late-night person and then crash on a Saturday, which is probably not the best advice to lawyers! I start off by going through my emails and getting familiar with what it is I need to get done for that day. After the emails are done and the workday starts at 9:00 AM clients could start calling in at any point. If we're not answering client questions over the phone, we also do consultations and give migration advice. The type of advice we give is anything from your primary visa application, right through to High Court applications for special leave and everything in between. We really answer any questions in our consultations so long as it's related to migration. That includes things like adoption, visa questions and anything that links back to immigration. So, I could be booked into three or four consults per day, if not more, and they could be a combination of new clients that are wanting advice about what visa to lodge, right through to existing clients and preparing them for interviews and department hearings.

The other thing I would do on any given day is attend tribunal hearings, merits review, as well as attending and instructing in litigation matters. I also represent clients in department interviews for protection visas. So that's the main advocacy work that we do but obviously preparing clients for those things, particularly when you are dealing with English as a second language, can take hours out of your day. It's not uncommon now for immigration matters to run like a trial where evidence is taken on certain matters and there's cross examination etc. As immigration becomes more complex and the more the minister personally intervenes in matters we are finding that cases become more complex with things like discovery.

Towards the end of the day at around 5:00 o'clock that's when the phones switch off so it's a nice time to go back through your emails and make sure that you're across on what you need to do for the next day. I often keep a written list throughout the day as I find it easier than anything electronic. Also just preparing what I would need to do for the next day. We keep a deadlines calendar as well so it's really easy to be across your deadlines to make sure we don't forget anything given that migration is so deadline heavy. And then we start the day again the next day!

You also engage in pro-bono work through your employer. How does this work differ from your usual role?

I wouldn't say that the work itself differs from my usual role. I give the same attention to pro-bono work that I do to a paying matter. The difference is probably the vulnerability of the client. Notwithstanding that obviously paying clients can also be quite vulnerable but often with pro-bono matters there is an extra level of vulnerability that you need to be aware of.

When it comes to migration, it’s often people that are very mentally unwell. We are constantly engaging with third party stakeholders like psychologists and psychiatrists. We have also received training on when to call the CAT team when the situation is at a point where we don’t have the training to deal with the situation. So I would say that's really the only difference but other than that it doesn't really change.

We as a firm have a good pro-bono programme and we get referrals through places like Justice Connect. We also assess clients on their individual circumstances. I would say as a small firm we actually dedicated quite a lot of time towards pro-bono work And not just pro bono work directly involving clients, but also time spent on committee meeting, as well as drafting papers, and reviewing legislation, and things like that. So the firm has a really good pro-bono practice, and it is really rewarding work to do as well.

I think that if you're working in this area, particularly working for applicants as opposed to working on the other side with the minister, you naturally have that empathy and desire to help people, and if you don't have that then working for an applicant in a migration firm might not be the work for you.

You hold a provisional license as a New Zealand Immigration Advisor with the New Zealand Immigration Advisers Authority. What role do you perform as a provisional Immigration Advisor?

New Zealand has a bit of a different structure to its regulation than Australia. Lawyers don't need to be migration agents anymore; that happened very recently. But in New Zealand being a registered immigration advisor does start out being provisional. It’s the first step in getting a full licence. I'm provisional and supervised by Carina herself, and we are the only two lawyers in the firm that are able to give advice to New Zealand. The difference with my provisional licence is that I do have regular meetings with Carina and involve her in my advice as much as possible so that she's across the advice. It's just an added check to ensure that advice is correct which is actually something that we don't do here in Australia. I think the reason for that is New Zealand is much smaller so they are able to regulate differently to here in Australia. But holding a provisional licence is the first step and then the next step is becoming a full licence holder so that you are able to then give migration advice unsupervised.

What is the most fulfilling aspect of your job in migration law?

I would say that the most fulfilling aspect is just the outcomes that you're able to achieve for clients. It does sound cheesy, but I can't put it in any other way. There are some cases that you just would never forget and they might be poignant for different reasons. It might be the vulnerability of the client, the complexity of the case, the circumstances as to where this client has come from, and how much they've endured before their journey to Australia. It's being able to really change generations. Often migrating to other countries is one of the biggest decisions a family will make. I know from my personal experience that if my family wasn’t able to migrate here from Italy, albeit over 50 years ago, then I wouldn't have been able to do the work that I do. So, I think the outcomes are the best part.

A fellow lawyer in this area once said to me that in migration work, the highs are highs and lows are low. When you get a bad outcome, it hits hard. Especially when you take on the emotions of that client. But when you get back a good decision, nothing can take away that feeling.

What are some of the difficulties you face with migration law?

Some of the difficulties are working with vulnerable clients but also keeping track of the constantly changing law. Migration law, as I think most people know from the media, changes quite frequently not only here in Australia but also in New Zealand. For example, one of our most popular programmes is called the General Skilled Migration program where migrants are able to get a visa based on their education overseas or in Australia, their English-speaking ability as well as their age. It's a points-based assessment. It’s probably the most common program that we give advice about. But the reality is that you have to have a nominated occupation. You can't just be nominated for doing work say as a cleaner or security officer. Applicants need to be in occupation on a specified list that is legislated. This list can change constantly, as often as every month notwithstanding changes to temporary and permanent visa requirements. So the changes in the law are quite difficult.

Probably the best example during COVID has been travel exemption. That's another topical matter that I know the media has been very involved in. At the moment, if you are a citizen or permanent resident you need a travel exemption to leave Australia and if you are a non-citizen on non-permanent resident, you need an exemption to come in. And the problem that we've seen so far with this programme is that it's not run by the Department of Foreign Affairs. Instead, decisions are made by the Australian Border Force. As a result, the decision records aren’t very detailed. Essentially you get applicants who have poured their heart out explaining the compelling reasons as to why they should be allowed into Australia to reconnect with family or loved ones and they receive a one or two sentence generic response.

And so dealing with this system has been one of the new challenges in migration law. The decision-making is often very different from ABF officer to ABF officer. Like with NZ immigration, there is a lot of discretion afforded which makes it very difficult to be able to give consistent advice to clients.

What has been a highlight in your career? What was one of the most exciting memorable cases that you have worked on?

Probably one of the highlights, and it certainly was not at the time as it was incredibly stressful, was a client in Naru that needed to be evacuated for urgent medical treatment in Australia because he was suffering from significant mental health issues. We ended up in urgent court hearings all through the week before Christmas and on Christmas Eve. He was able to be transferred to Australia and has now been resettled in America. At the time it was stressful, but it’s rewarding knowing that we were able to assist somebody at such a difficult time in their life. It was a real affirmation that the system does work.

How do you manage your work-life balance?

I struggled with this as a young lawyer and I would have done things differently to give myself that work-life balance if I could do it over again. It is really important to set that work-life balance as you are setting a precedent for the employer you are working for and for yourself, and it can be difficult to get out of your set routine. Later in my career, I have found the importance of trying to switch off at home as much as possible and using weekends as well. There are always going to be those matters that you need to bring home or work on the weekends, but you need to make an effort to enjoy that work-life balance. Keeping up hobbies and keeping those commitments is something that I’ve found really useful. This can be a book-club, playing netball, attending a soccer match, or anything. It is possible for even top-level lawyers to manage family commitments and a social life along with their workload. It really comes down to the lawyer and being able to set that pace for themselves in this competitive industry.

What skills do you need to work in migration law?

Resilience is key, you are dealing with stressful situations, where people’s lives and vulnerable clients are at stake. Organisation is also really important to manage your numerous deadlines and workload. At my firm we go over deadlines with the junior lawyers and spread out the workload to ensure no one is overwhelmed. This is key as migration law is an area where you can get urgent matters and you need to be organised to manage your work and get up to speed very quickly. This makes it really important to not leave things to the last minute so you aren’t thrown by unexpected cases or things out of your control.

What do you think will help aspiring migration lawyers stand out from the pack when applying for clerkships/internships?

I work with recruitment of paralegals and clerks in the firm, so I think from an immigration perspective in a middle sized-firm, any legal experience, particularly volunteer experience is beneficial. There are many places that you can volunteer, the Asylum Seeker Resource Centre, Refugee Legal, and other community legal centers. You can learn a lot of skills at volunteer clinics, even if you don’t work directly with migration law, that are useful in migration law. Experience with client intakes and client contact is crucial in migration, as well as figuring out the client’s needs and likely outcomes. Even if it's just the three months for student placements, and continuing after if you can. I usually will ask why a student stopped volunteering about the three months, and there are lots of reasons such as other employment commitments. In migration law, you aren’t really looking for someone who’s looking to climb or to just put things on their CV and move on. We are looking for people who are passionate about migration law. Retail and paid employment is also useful for migration law, it demonstrates customer service skills and the ability to deal with high-stress situations. Don’t take off that retail experience as it might set you apart from somebody else. It also shows that you are able to organise and prioritise your week to manage the high workloads and competing priorities of a legal career.

Do you have any thoughts on how migration law may develop in the future? Are there any major developments within the industry that may impact your work as a migration lawyer?

Covid has brought an increase in health-care targeted sectors and priority sectors in the area of skilled visas. It will be interesting how the government deals with things like travel-exemptions. I have seen some visas, like temporary-employer-sponsored and 485s, be put under consideration for automatic travel-exemptions. This is likely not going to happen until more of us get vaccinated. Litigation is another area that will be really interesting. A lot of people have gotten stuck or have been unable to meet the criteria of their visa because of covid and their visas have either been refused or cancelled. A lot of these applications end up at the tribunal or the court where they are waiting 1-3 years for a final hearing. It will be interesting to see how the court deals with that backlog and whether they will introduce different ways to hear matters, whether that be joining hearings for one subclass of visas or a type of visa. I’m also interested to see whether telephone hearings will stay in place as they have been more effective for certain cases. These are not including those where credibility evidence are required such as protection or partner visas. For visas like student visas or court matters where there is no credibility evidence, it is much more efficient to maintain telephone hearings. I think there will be a lot more list changes and a lot more focus on some of those areas where we don’t have enough people for, being doctors, nurses, aged care and support workers. It is worth noting that the lists don’t often reflect the other occupations that we are struggling in, which is hospitality. We lost our working holiday workers when they all went back during covid so there is no one really in cafes making coffee. We might see that those occupations will become more high priority and it will be interesting to see how that develops over the next 12 months.

Suggested Electives/activities:

Electives:

• LAW5465 Migration and Human Rights

• LAW4690/LAW5651 Human Rights and Migration in Comparative Perspective

• Family Law units can be quite helpful, some notable examples:

  • LAW4177 Introduction to Family Law

  • LAW4330 Family Law Assistance Program (FLAP)

  • LAW5409 Principles of Family Law

• Note: Administration Law is a core subject which can help when working in Migration Law.

• Generally do what you are interested in as this can help you to understand the area you want to work in.

Experience/Activities:

• Volunteer at Asylum Seeker Resource Centre, Refugee Legal, and other community legal centers to gain soft skills relevant to Migration Law and the legal industry generally.

• Retail or any work experience dealing with customer service.

IN THE NEWS

As the Taliban overran Afghanistan, Australia told asylum seekers they should expect to return (The Guardian, September 2021)

For some Afghans, the trauma of watching their homeland descend into civil war has been compounded by the fact they might have to go back.

Link to article

Legal experts have criticised the government's proposed amendments to visa and citizenship laws (SBS News, August 2021)

The Law Council of Australia has called for the proposed amendments to meet the "principles fundamental to a democratic legal system".

Link to article

The Tampa affair, 20 years on: the ship that capsized Australia’s refugee policy
(The Guardian, August 2021)

When a Norwegian freighter rescued 433 asylum seekers from a sinking vessel en route to Christmas Island, it sparked a crisis that led to hardline border policies and indelibly shifted the response to boat arrivals.

Link to article

learn more about MIGRATION LAW

Turning back migrant boats: what does the international law of the sea say?

The UK Home Office has unveiled plans to use “turnback” tactics in the English Channel, with the border force compelling small boats carrying migrants to return to French waters. The move is the latest in a series of strict immigration policies by Home Secretary Priti Patel, following the introduction of a controversial nationality and borders bill in July that seeks to criminalise arrival in the UK without permission.

Link to article

Law Institute of Victoria Migration Law Fact Sheets

The LIV’s Migration Law Committee has produced a series of fact sheets that provide LIV members with succinct and user-friendly overviews of a range of migration law issues.

Link to fact sheets

Australian National University: International Refugee Law

This guide lists the major print and online sources for researching international refugee law.

Link to guide

Law Council of Australia: Migration Law

The Law Council of Australia (Law Council) is the peak national representative body of the Australian legal profession.

Link to page