David Ryken: Lawyers don't need licence to deal with immigration

COMMENT

In his comments on the Government's planned regulation of immigration consultants Aussie Malcolm unfairly criticised lawyers practising immigration law.

The Law Society has a rigorous disciplinary system if members behave unethically or unfairly in their dealings with a client or the Government. If Mr Malcolm has documentary evidence of improper, unethical or unlawful behaviour, he should refer it to the district law society for a full investigation.

Additionally, a number of changes since Mr Malcolm was Minister of Immigration have addressed some of the abuses of the past. Access to legal aid in the immigration area has been significantly tightened.

The Legal Services Agency quite properly requires information for it to be satisfied that a case has merit. Manifestly unfounded refugee claims are not awarded legal aid. The Judiciary, too, has not been silent about the occasional unmeritorious case that comes before the courts. Costs can be awarded against counsel should this happen repeatedly.

A system now also requires lawyers to receive supervision before they can obtain legal aid on refugee matters, as is also the case in areas of the law, such as mental health and family law.

The vast majority of abusive claims in the refugee area are lodged by consultants who are neither members of the legal profession nor the Association for Migration and Investment.

One consultant has allegedly filed repeated refugee claims for people involved in the building industry, mainly from Thailand (which is not normally a country from which people seek asylum). The behaviour of that consultant (not a member of the Association for Migration and Investment) is carefully recorded in a number of decisions in the Refugee Status Appeals Authority.

Entry into the legal profession is also carefully scrutinised. The Auckland District Law Society refused entry to a man who had practised as an immigration consultant for a number of years (also not a member of the association) and had presented repeated abusive and templated cases to the Refugee Status Appeals Authority. He outrageously (and stupidly) thought the members of the authority would not notice that the statements of his clients were all the same.

He took the district law society to court because of its refusal to register him. Justice Harrison, in the High Court, upheld the refusal in April 2002.

Mr Malcolm's suggestion that the backdoor immigration system based on false passports and false claimants is driven almost entirely by lawyers is totally unfair.

It is correct that those who claim refugee status have legal rights and that these are recognised in our legal system. Lawyers are, by reason of their profession, concerned with the legal rights of such people. There is nothing dirty about obtaining refugee status for a genuine claimant.

A question of whether a person is a refugee can sometimes be a question of degree and evidence. It is because our system of refugee determination is both robust and fair that false claimants will inevitably be exposed. This is both healthy and necessary.

The regulation of consultants will be a step in the right direction in preventing people who abuse the system from practising. But given that the scrutiny of lawyers in practice, and would-be lawyers at the time of entry into the profession, is thorough and robust, there is no need for the legal profession to be included in the regulatory system involving immigration consultants.

The code of ethics to which legal professionals are subjected is far more detailed and onerous than the Association of Migration and Investment's code, or any code likely to be promulgated by a consultant regulatory body.

Mr Malcolm's suggestion that immigration consultancy should be franchised also needs scrutiny. The work of an immigration lawyer, and for that matter an immigration consultant, must be independent from the Government, particularly if that work involves challenging the initial decision of a Government official.

Licensing or franchising of the type suggested by Mr Malcolm would inevitably lead to the demise of free enterprise, and healthy competition.

* David Ryken, an Auckland immigration practitioner, is the New Zealand representative of the Immigration Lawyers Association of Australasia. He is responding to the view of immigration consultant Aussie Malcolm that lawyers should be included in any regulation of consultants.