Immigration matters with little or no chance of success
Sometimes we are approached by a client regarding an immigration matter, but we tell the client their matter has little or no chance of success. At Laurent Law we will tell a client if we believe this. This is sometimes not what clients want to or expect to hear. However, it is good, ethical practice to only suggest acting for a client if their matter has at least some arguable basis and some reasonably grounded chance of success. It may be viewed as being unethical and not sound practice, to agree to represent a client in an immigration matter if it has little or no chance of success (‘futile’).
Sometimes it can be difficult to assess whether a matter has an arguable basis or has little or no chance of success. This is where the knowledge, experience and expertise of a Lawyer can play a role. Sometimes we may see an option where others have not.
However, some matters clearly have little or no chance of success. In this situation, it is sound, ethical practice to only agree to represent a client in a matter if they are fully informed the matter has little or no chance of success and they provide clear instruction to proceed. Sometimes a client will want to proceed with a matter despite it having little or no chance of success, because they want to try regardless of the consequences or they just want their case ‘to be heard’ by a decision maker.
The Licensed Immigration Advisers Code of Conduct 2014 states:
9. If a proposed application, appeal, request or claim is futile, grossly unfounded, or has little or no hope of success, a licensed immigration adviser must:
(a) advise the client in writing that, in the adviser’s opinion, the immigration matter is futile, grossly unfounded or has little or no hope of success, and
(b) if the client still wishes to make or lodge the immigration matter, obtain written acknowledgement from the client that they have been advised of the risks.
Contrast, Lawyers, who are not subject to this Code of Conduct.
There is an idea in law called the ‘cab-rank’ rule which obliges a Lawyer to act for a client if the client instructs them to do so. There is reference to this in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. However, the writer would like to say, that what is important for Lawyers too is that if an immigration matter has little to no chance of success, the client understands this and gives informed instruction to proceed.
Recent decision in the Federal Court of Australia
There is a recent decision in the Federal Court of Australia which illustrates the point.
Leo’o Olo v Minister for Immigration and Multicultural Affairs [2026] FCA 10 (decided on 22 January 2026) related to the deportation of a New Zealand citizen from Australia for criminal offending.
The Federal Court was asked to consider by way of judicial review whether a Member of the Administrative Review Tribunal (similar to New Zealand’s Immigration & Protection Tribunal) had displayed bias in being critical of the applicant’s Lawyers for taking on what seemed to be a futile case. The Federal Court decision cites the Tribunal Member as saying:
A non-citizen who commits serious offences in Australia should expect to be removed. Mr Leo’o Olo is a non-citizen who inflicted grievous bodily harm on a stranger, hit his young son so hard it caused welts and bruising, and threw his ex-partner down with such force that she bounced into a wall. He should not expect to remain in Australia.
However, there is money to be made from non-citizens who are desperate to avoid deportation, and whose loved ones are prepared to contribute their savings to pay a lawyer or migration agent to take their case to the Tribunal. There is much less money, but a good measure of integrity, in competently assessing a non-citizen’s prospects of overturning a visa cancellation, and where their prospects are futile, advising them to keep their money. Where a non-citizen’s prospects are not futile, a lawyer or migration agent who takes their case should present an honest case that focusses on matters that favour the non-citizen and carefully deals with matters that do not. Witnesses should be proofed properly to elicit relevant information and drive home their duty to be truthful. Poor proofing leads to contrived or deficient evidence and creates a risk that information that favours the non-citizen will remain unknown unless a curious Tribunal uncovers it.
Mr Leo’o Olo did not benefit from the efforts of his lawyers and lay witnesses to manipulate the Tribunal. The Tribunal is concerned with credible evidence and reasonable inferences. It is not persuaded by lies, speculation or exaggeration. Mr Leo’o Olo is going back to his country of origin. It is not a country that is poor, unstable, war torn, barbaric or oppressive. It is New Zealand.
I am required to explain how I reached my decision. This is an expedited matter, and one of the Tribunal’s statutory objectives it [sic] to deal with matters efficiently. I will not waste time and Tribunal resources, which are public resources, addressing each and every disingenuous utterance made on the Applicant’s behalf. If that results in an appeal, it would create an opportunity for the Federal Court to provide clarity in this jurisdiction about the extent to which the Tribunal is required to engage with material that is obviously lacking in merit, particularly in circumstances where the sheer volume could raise a suspicion that there was an intention to create appeal points.
In the judicial review decision, the Federal Court stated as to the Tribunal:
Nevertheless, the Tribunal’s most scathing criticisms of the applicant’s lawyers’ conduct were quite unjustified. For example, the Tribunal could not know what advice had been provided to the applicant by his lawyers and so there was no apparent basis for the Tribunal’s insinuation that the lawyers failed to advise the applicant that his application was futile and that they acted without integrity by instead taking his money. The Tribunal’s statement that, “a lawyer or migration agent who takes [a non-citizen’s] case should present an honest case”, and its reference to, “every disingenuous utterance made on the Applicant’s behalf”, insinuated that the applicant’s lawyers had made dishonest submissions when there was no basis for such a view. There was also no basis for the Tribunal’s comment that the sheer volume of material could raise a suspicion that there was an intention to create appeal points. The Senior Member made no attempt to explain the basis for these snide comments. A fair-minded observer would reasonably regard the Tribunal as having launched an unjustified attack on the applicant’s lawyers.
The Federal Court concluded that the Tribunal Member had displayed bias and quashed (think ‘cancelling’) the Tribunal’s decision. The Federal Court did not directly address the issue of whether a Lawyer (or Migration Agent/Immigration Adviser) should act in an immigration matter that appears to have little or no chance of success. The Federal Court was concerned with whether the Member had displayed bias, saying the Tribunal’s ‘comment indicates that the Tribunal had itself assessed the case as futile’. However, the Member’s comments (cited) and the Federal Court’s response (cited), suggest some questions about how immigration matters that appear futile should be treated.
Conclusion
Filing an immigration matter which is futile/has little or no chance of success is something that could provoke a negative response from a decision maker. In this case, it was a Member of Australia’s Administrative Review Tribunal. The Federal Court found that the Tribunal Member had displayed bias. However, this does not indicate the Member’s statements to be completely irrelevant and carrying no weight. The Federal Court also stated that bias must be ‘real and not remote’. While bias was found in this instance, it does not mean that bias would be found in every situation where a Lawyer or Immigration Adviser had filed a futile/little or no chance of success matter.
It is relevant to remember that the Federal Court’s decision is a decision of a Court in Australia, not New Zealand – the jurisdictions are separate. However, it is the case that often Court decisions from other jurisdictions that are similar can be relevant in New Zealand, as is the case in other common-law jurisdictions too (this includes Australia and the United Kingdom).
The focus of representation in an immigration matter should be where the matter has some arguable basis and reasonably grounded chance for success. There might a justified basis in acting in an immigration matter that has little or no chance of success, as long the client is told the matter has little or no chance of success and agrees to proceed. It likely is unethical to accept instruction to act in matters with little or no chance of success, where the client has not been told this. Filing a futile immigration matter could provoke a negative response from a decision maker.