Have you received negligent migration advice? Not all is lost. We may be able to fix your visa application, and you can also seek compensation.
What can you expect from a migration agent or immigration lawyer?
Although a migration agent can never guarantee a positive visa outcome, you can still expect that they exercise reasonable skill and care when they work for you. At the very minimum, this means they advise you on your available visa options, they give you an honest assessment of your prospects of getting a visa and they make competent and forceful submissions on your behalf to the Department of Immigration. They put the best possible case forward for you. If you receive negligent migration advice, you have options to remedy the situation.
If a migration agent is negligent (or, in other words, they breached their duty of care) what can you do?
Firstly, is there still time to change agents? If your visa application is still being processed, and you are unhappy with your agent, it may be that you can improve your position by finding a more competent agent. You can at any time withdraw the authority which you gave to your current agent to act on your behalf, and you can appoint a new agent. You will need to sign a new form 956, and your new agent can let the department know that they are now acting for you.
Seek financial compensation
If it is already too late, in the sense that your visa application has been refused because of the incompetence of your migration agent, you may be able to claim compensation. It’s important to realise that to be able to make a compensation claim, you need to prove that you received negligent migration advice and have suffered some kind of loss. This is different in each and every case. For example, if you have missed out on a permanent visa and are unable to start a life in Australia and earn Australian wages (they are comparatively high) because of your agent’s negligence, you can claim compensation for your lost earnings. Or a different example may be that because of your agent’s negligence, you miss out on the opportunity to apply for a visa while you’re still onshore, and you have to leave the country and apply offshore. Even if ultimately your application is successful, this may have caused you a lot of additional and unnecessary expense (for example, airfares and overseas living expenses) which you may be able to claim.
On the other hand, it is more difficult to make a claim for compensation if you cannot prove that the agent’s negligence caused financial loss. For example, if, due to the agent’s negligence, you miss out on a visitor visa, that may cause a lot of inconvenience, but it would be difficult to argue that you have incurred significant financial loss as a result. This is because a visitor visa is a temporary visa, which is not designed to give the holders an ability to earn income in Australia, and to stay here long term.
You might be worried that even if you have a good case against the agent, they may not have sufficient funds to pay compensation, or they may be already out of business. Fear not, because migration agents are required to hold adequate professional indemnity insurance, which covers their liability to pay compensation for negligent migration advice. One thing to bear in mind though is some insurance policies have a relatively low coverage limit (say, for example, 250,000) which means that the insurer would not pay an amount above that limit.
When you make a claim for compensation, we can help you with getting a copy of your previous agent’s insurance policy.
Can you still get a visa if you prove your agent gave negligent migration advice?
You won’t get a visa just because you can show to the Immigration Department that your agent was negligent. That said, if a new application can be submitted, you should certainly outline in detail that the previous application was declined largely because your agent was negligent and failed to provide adequate/appropriate in support of your previous application.
How do you minimise the risk of receiving bad migration advice?
While there is no guarantee that the migration agent you choose will not make a mistake, there are some steps you can take to minimise the risks.
Firstly, be aware of the difference between a migration agent and an immigration lawyer. A migration agent is not necessarily legally qualified. On the other hand, an immigration lawyer is someone who is not only a migration agent, but also an experienced lawyer. Immigration lawyers can do everything that a migration agent can, and in addition, they can also represent you before the courts, they are skilled in obtaining and presenting evidence in the strongest possible form, and they can advise you more broadly about how the Australian legal system affects your rights. What this means is if there are factors which complicate your case (for example, character issues, relationship breakdown for partner visa applications etc) then you should consider engaging an immigration lawyer.
Always check that the migration agent you sign up with is registered with the migration agents registration authority (MARA). You can check their registration here.
You should also check your agent’s history. If they have been disciplined before, there is a register which contains the relevant details. You can find it here.
Finally, sometimes it’s best to do a basic Google search on the agent you want to engage.
Why should you contact us if you are unhappy with your current agent?
If your claim has merits, it will be handled by our principal Solicitor, Oszkar Denes. Oszkar himself is an immigration lawyer. He also specialises in compensation claims, and he has a strong insurance background. In other words, he understands all aspects of a compensation claim against a migration agent, and can give you accurate advice at the outset, and strong representation before the courts. He also has many years of experience in negotiating with insurance companies, so if there is any possibility to get compensation from your previous agent’s insurer, Oszkar will negotiate the best possible outcome for you.