In three weeks time I will be finishing up at the immigration law firm I have worked at for the past 2 and a half years – Clothier Anderson and Associates. During this time, my eyes have become open to the reality of life for many people all over the world, especially those who are fleeing their country of origin for fear of persecution and death, hoping that they will be accepted as a genuine refugee when they arrive. Besides refugee and humanitarian visas, we also do spouse, carer, remaining relative visas, along with citizenship applications. However, it is business and work visas that I find of particular interest – in particular, temporary visas such as the controversial 457 visa.
I did not realise how much this area of immigration law interested me until I decided that this would be the topic of my honours thesis. The human rights of migrant workers, especially temporary migrants who desire permanent residence and do not speak English, are of particular concern, especially as they are the most vulnerable and susceptible to exploitation at the hands of their employers. A few thoughts on this (straight from my thesis!) are dotted below -
Introduction
Labour shortages in industrialised countries and the intensification of the process of globalisation have created a world where reliance on migrant labour is the norm. This can be attributed to rising economic and demographic differences between nation states which have made the transfer of people over borders a ‘natural response’ in a globalising world.[1] While international migration can be a productive experience for some people, many migrant workers suffer poor working and living conditions.[2] This has been evident in an Australian context with the introduction of the Temporary Business (Long Stay) visa scheme (the 457 scheme). This scheme has been the subject of considerable controversy due to the vulnerability of temporary migrant workers to exploitation. This vulnerability, particularly experienced by lower skilled migrant workers arises primarily because of the power imbalance that characterises the relationship between the visa holder and employer sponsor as a result of the workers’ dependence on their employer sponsor for work and Australian permanent residence. Despite the existence of international instruments dealing directly or indirectly with the human rights of migrant workers, there has been a tendency of the Australian Government to overlook the implications of such schemes on the human rights of migrant workers. This has led those opposed to the 457 visa scheme to argue that such visa holders are simply treated as units of labour in Australia rather than as human beings whose rights should be respected.
Conclusion
Australia’s introduction of the 457 visa to deal with labour shortages has been the subject of considerable controversy particularly in relation to the visa holders’ susceptibility to exploitation. The exploitation experienced by lower skilled 457 visa holders raises a number of questions. How will the Australian community balance the desire to sustain its economic success with its obligation to treat vulnerable workers with justice? How can Australia show its gratitude to migrant workers for the vital role they play in the Australian economy?[3] Does the exploitation experienced suggest that 457 visa holders are no more than commodities of labour? Responding to these questions is likely to become increasingly pertinent in the coming decades as cross border movements of workers in search of employment and security increase especially if globalisation fails to generate jobs and economic opportunities where most people live.[4]
The Australia Government’s decision to undertake a review of the 457 scheme, and the legislative changes that occurred as a result, is indicative of its commitment to strengthening and upholding the human rights of migrant workers. However, 457 visa holders remain susceptible to exploitation because of the visa’s temporary nature and their continued dependence on their employer sponsor as well as recruitment and migration agents. The abuse and malpractice experienced is exacerbated by the visa holders’ desire to become an Australian permanent resident.
Despite the standards that have been painstakingly designed to enable migrant workers to lead a more dignified existence when resident and employed abroad, a protection gap continues to exist between the fine rhetoric of international human rights and labour standards and their implementation in practice. There are a range of opportunities available for the Australian Government to fill this gap in order to reduce the exploitation faced by lower skilled 457 visa holders and to thus promote the protection of their human rights. These include, among other things, responding to the recommendations of the review as well as ratifying the CMW and the ILO conventions relating to migrant workers. Such steps are essential if the Australian Government is committed to reducing the exploitation experienced by 457 visa holders and to thus ensuring that they are treated as bearers of human rights rather than commodities of labour.
[1] International Labour Organisation (ILO) Report IV, Towards a fairer deal for migrant workers in the global economy (2004), 92nd session [7].
[2] Ibid [9].
[3] Christopher Saunders, ‘Migrant Workers in Australia: Our Responsibility as Global Citizens’ (Speech delivered at the Feast of St Joseph – Australia Catholic Social Justice Council, Broome, 1 May 2008).
[4] Ryszard Cholewinski, ‘The rights of migrant workers’ in Ryszard Cholewinski, Richard Perruchoud and Euan MacDonald (eds), International migration law: developing paradigms and key challenges (2007) 255, 256.
