Intercultural communication in migration law practice

Editor’s note: This article is based on a presentation delivered as part of a plenary panel, ‘Transdisciplinary Approach to Forensic Linguistics’, at the 16^th Biennial Conference of the International Association for Forensic and Legal Linguistics, held at the University of Santo Tomas, Manila.

Questions and comments from our readers and conference participants are welcome.

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Navigating migration procedures in Australia and other countries of the global north can be very challenging. Australian migration law and procedure are incredibly complex and restrictive, and the rules change constantly – some almost on a daily basis.

Processes are also linguistically demanding: making sense of the law itself and then navigating the application process requires a very high level of proficiency in written, legal English, and strong computer literacy. Depending on the type of application, individuals may also need to attend an interview and discuss personal and sensitive parts of their life in great detail, as a way to prove their credibility.

Intercultural communication is a common feature in this setting, in multiple ways. First, and perhaps most obviously, different participants usually come from different national, ethnic, racial and/or linguistic backgrounds. Second, the immigration department and its officials have their own specific bureaucratic culture that, more often than not, will be unfamiliar and challenging for many visa applicants.

This means that while applicants are allowed to apply for a visa on their own, having professional assistance can often be crucial to a smooth and successful application (Jacobs 2022; Reynolds 2020; Smith-Khan 2021c). In Australia, practicing lawyers can assist with visa applications and first-stage appeals. Non-lawyers may also assist. To be authorised, they must complete a Graduate Diploma in Migration Law, pass external examinations, and then register as a migration agent. Together I call these two groups “migration practitioners”.

Despite their importance, there has been very little research about Australian migration practitioners (van Galen-Dickie 2021). My research on asylum procedures found that official texts also pay little attention to how practitioners shape applicant testimony and mediate institutional communication (Smith-Khan 2020). To find out more, my current project explores practitioners’ beliefs and practices when communicating with and on behalf of their clients. I started by examining relevant law and institutional texts and then conducted qualitative interviews with current practitioners, and students training to become registered migration agents. I also observed student practical activities where they role-played migration agents conducting client consultations.

To better understand how intercultural communication is understood in this context, I follow Ingrid Piller’s (2017) approach to examine who makes language and culture relevant, to whom, in which context, and for which purposes. I identified multiple and conflicting discourses about intercultural communication, which emphasise and understand language and culture in different ways, and reflect on the potential impacts of these divergent understandings.

Difficult work

Current practitioners shared insights into the challenges they face in their day-to-day work, particularly emphasising contextual factors. They pointed to the ever-changing and increasingly restricted visa options as a key difficulty: they must carefully balance different professional goals. They must stay up-to-date with changes to migration law, and emphasise their value to their clients. They must also manage their clients’ expectations and clearly communicate the limits of their power within the system. As visas options become increasingly limited, this can be difficult for clients to accept.

Another key challenge is that the channels through which practitioners and applicants can communicate with the immigration department are increasingly inaccessible. Participants explained how in the past, each visa application was assigned an individual departmental case officer who was identified by name, and had a direct email address and telephone number. If practitioners had a question or update about an application, they could easily contact that person. Now instead there are only general contact details for various sections of the department, limiting applicants’ and practitioners’ access and agency. One participant talked about keeping an Excel sheet with old individual contact details she saved in the past and using this to try to reach out to officials directly. What once was standard practice, that list of contacts is now a treasured and rare resource.

Deviance and deficiency

These challenges intersect with another: that practitioners are more tightly regulated now than ever before, leading to stress and in some cases even fear. My analysis of government discourses goes some way to explaining this. In a recent parliamentary inquiry report, migration practitioners are presented as policy problems: they pose a threat in terms of their competence and ethics. Migrant clients are also problems: in particular, “culturally and linguistically diverse” clients are framed as vulnerable and in need of protecting from practitioners. The report opines that they are “socially, legally and financially vulnerable and are open to exploitation from the actions of unscrupulous, unlawful and unethical registered migration agents.”

This institutional discourse zooms in on two groups of actors, presenting particular deficiencies they are said to bring to migration processes. Rather than focusing on the complex legal structures and procedures that exacerbate or even create difficulties and vulnerabilities, this discourse places the spotlight on migration practitioners, justifying tighter regulation. They also make language and culture individually salient for migrants, and present these as individual attributes that apparently create vulnerability (Smith-Khan 2021b).

Testable and valued language skills

Language becomes salient in other ways too, connected with migration practitioners. One rule aimed at controlling and excluding incompetent and unethical practitioners regards English language proficiency. Yet this rule is problematic and potentially discriminatory in its application to different groups (Smith-Khan 2021a), as can be demonstrated with an example of two students in the project.

One student is multilingual and came to Australia as a skilled migrant. He grew up in South India, speaking a family language at home, and a regional language in his community. All of his schooling from the beginning of primary school until the end of university was strictly in English, to the point that the students were punished if they were caught speaking another language even in the playground. He used English during work travel to other parts of India, later when working overseas, and then finally in Australia. Proving his English proficiency through testing was a requirement for his Australian skilled permanent visa. He reports that his migration and travel experiences helped him become aware of different ways of speaking English, and communicating with people from different backgrounds.

Another student is a monolingual English-speaker, born in Australia. He too was educated in English, with fewer opportunities to learn any other languages. He has only worked in Australia. While he speaks fluent English and was friendly and engaging in the role-plays I observed, on various occasions, he used Australian English idioms that his role-play partners did not understand, affecting their interaction.

To become registered migration agents, both individuals must successfully complete the Graduate Diploma and pass two externally-administered written and oral exams. These are specifically designed to evaluate their occupational competencies, including their profession-specific communication skills. However, only the Australian-born candidate is assumed to have sufficient English language proficiency. The other, despite his education and work history, must again sit an IELTS test to fulfil the registration requirements.

Here, language and migration history become salient to who legislators trust as competent and reliable. These rules assume that being multilingual and from a particular country of origin are potential threats to English language proficiency, and further, that ensuring English language proficiency helps ensure competent practice and protect vulnerable clients.

Invisible language work

In contrast to the hypervisibility and importance of English proficiency, other language skills and practices are much less visible in official discourses. Yet in reality, many practitioners use other languages in their day-to-day work. All current practitioners in the study who have English as a second language report using other languages in their work. Some serve almost exclusively clients from the same language background or country of origin, while others have more diverse client groups.

Significantly, the Australian immigration regime is almost completely officially monolingual: law and policy are published in English only, all application paperwork must be completed in English. Applicants must simply manage, regardless of their own linguistic resources, and officials are not expected to know or use other languages in their work. This means that when practitioners use languages other than English, they provide a benefit not only to visa applicants, but also to the department, filling a substantial institution-wide communication gap.

Both monolingual and multilingual practitioners also describe the importance of mobilizing other types of intercultural communication skills in their work. They discuss their awareness and management of linguistic issues when working with interpreters, or when speakers use different varieties of a language. They talk about their strategies to check and address issues with understanding. They also describe strategies like switching between different languages for different parts of their interaction to best suit their clients’ needs, for example providing written advice in English, but supplementing this with an oral explanation using another language. Code choice and switching are also discussed as means of identity performance and rapport building.

Relevant sociocultural knowledge is also valued. Those with a migrant background identify their lived experience and insider knowledge as important assets in interacting with and representing their clients. Practitioners who don’t identify a shared background also value this type of knowledge, but report developing an understanding of their clients’ country of origin, ethnic, linguistic and other social groups.

Navigating different types of interpersonal and power dynamics can also be more challenging and complex than official discourses envisage. For example, one young non-white female practitioner shares her experiences assisting high-powered CEO clients. She must carefully balance her professional duties, with maintaining good relationships with the client companies, who can be very demanding, and satisfying her managers, who closely scrutinize and control every detail of her interactions.

While this diverse range of sociolinguistic resources can influence client-practitioner interactions, and therefore the application process, they are not officially acknowledged or addressed in the way that a “testable” level of English proficiency is. Therefore, I argue that migration practitioners carry out important invisible language work that much of the institutional discourse does not explicitly recognize, and is sometimes even discursively transformed into risk rather than benefit (see also Cho 2023).

Developing counter discourses through education

However, the study also found that practical experience and education can help future practitioners to push back against harmful discourses, and to value their own communication skills.

For example, one student reflected on how the role-plays helped build her confidence. English is her second language and she describes herself as a nervous person when it comes to public speaking. She was hesitant to participate in the project, and kept her laptop camera switched off when participating in her first role-play. She said that it allowed her to pretend “I’m just talking in the dark to myself.” Turning her camera on during the next round of role-plays later in her study was evidence for her that she had become more confident. But her gain in confidence did more than just increase her class participation. At the end of her study, she passed her external oral exam on her first attempt, and even reported having an enjoyable chat with the examiner afterwards.

Significantly, she reports that her formative experience during her study also broadened her career plans. In her first research interview she said that she could not work with asylum-seeker clients, as she didn’t feel equipped to assist people who may have experienced trauma. But by the time she’d graduated and was awaiting her registration, she’d applied for work experience with an organization that specifically assists refugees.

Student participants also shared critical reflections on migration profession registration rules.

For example, they critiqued assessment design, arguing that time-restricted external exams don’t reflect the nature of the real work environment. Others made similar comments about English language tests, questioning why they needed to take them again, and why Academic IELTS was required for migration practice, when the tests were not actually designed to evaluate the skills needed for their work.

Other students developed a sense of the bad reputation that migration agents have amongst some government departments and policy-makers. While some embraced the idea that more stringent entry requirements would help prevent “dodgy” agents, others regarded this more critically. One suggested an ideological link between attitudes towards migrants and migration agents: “I think they see us as unnecessary… Because I think they are very anti-immigration, and I don’t think they really care for anybody helping migrants whatsoever…I just think that the Government’s deliberately making it difficult for people to get into the profession”.

So where does this leave our understanding of intercultural communication in migration law practice?  Undoubtedly, migration practitioners play complex and important roles in assisting people applying for Australian visas, mobilizing a range of sociolinguistic resources in the process. Yet there is a huge variation in how their contributions are viewed, based on diverging ways of making language and culture salient in this setting.

As I’ve argued, on the one hand, official discourses present intercultural communication with a focus on particular individuals: migration practitioners become risks that need managing, and clients are vulnerable to exploitation.

On the other hand, the research uncovers considerable counter discourses from current and future practitioners, who value their own skills and suggest that legal and procedural structures should be the target of greater scrutiny. Happily, my research suggests that students’ learning experiences can help equip them to have confidence in their own professional capabilities and to develop this critical focus on broader context.

Finally, with a recent change of government in Australia, significant reforms have been announced, acknowledging some of the big structural issues within the migration system. This creates a great opportunity for improvements to be made so that migration practitioners and the clients they serve can have a more positive and empowering experience.

References

Cho, J. (2023). Bilingual workers in a monolingual state: Bilingualism as a non-skill. International Journal of Bilingual Education and Bilingualism (ahead of publication).
Jacobs, M. (2022). The metapragmatics of legal advice communication in the field of immigration law. Pragmatics, 32(4), 537-561.
Piller, I. (2017). Intercultural Communication: A Critical Introduction (2^nd ed), Edinburgh University Press.
Reynolds, J. (2020). Investigating the language-culture nexus in refugee legal advice meetings. Multingua: Journal of cross-cultural and interlanguage communication, 39(4), 395-429
Smith-Khan, L. (2020). Why refugee visa credibility assessments lack credibility: a critical discourse analysis. Griffith Law Review, 28(4), 406-430.
Smith-Khan, L. (2021a). ‘Common language’ and proficiency tests: A critical examination of registration requirements for Australian Registered Migration Agents. Griffith Law Review, 30(1), 97-121.
Smith-Khan, L. (2021b). Deficiencies and loopholes: clashing discourses, problems and solutions in Australian migration advice regulation. Discourse & Society, 32(5), 598-621.
Smith-Khan, L. (2021c). “I try not to be dominant, but I’m a lawyer!”: Advisor resources, context and refugee credibility. Journal of Refugee Studies, 34(4), 3710–3733.
van Galen-Dickie, M. (2021). The Protégé Effect:Learning from the Experience of Graduates in an Online Community of Practice, Doctoral Thesis, University of Southern Queensland.

Video recording of this lecture now available on YouTube (27/12/2023)