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Overview
‘Immigration status’ is not a term formally defined in law, but it is commonly used to describe a person’s visa status, including whether they have a valid visa or not, and whether their permission to remain in Australia is temporary or permanent. As a legal category, visa status determines the conditions to which non-citizens are subject to while residing in Australia, including access to work rights and services.
Beyond the powers exercised through migration law to regulate and control non-citizens, ‘immigration status’ as a social category also shapes how people are treated in the labour market and in public life. Discrimination on the basis of immigration status is widespread and is often used to exclude temporary visa-holders from engaging in areas of public life — particularly employment — even where their visa conditions lawfully permit participation. Immigration status is also used to justify mistreatment at work, with employers assuming temporary visa-holders will tolerate poor conditions rather than risk their visa status. Despite this, ‘immigration status’ is not explicitly recognised as a protected attribute under federal or state and territory anti-discrimination law, with the Australian Capital Territory (ACT) being the sole exception.
As a result, migrant workers are often locked out of applying for certain roles, including those they have trained and built experience in. Many employers conflate permanent residency (PR) with work rights and long-term employability and consequently refuse to consider applications from temporary visa-holders. This pushes many into insecure, lower-paid, or informal work, where they are less able to assert their rights and are more likely to be exploited. Such exclusions also undermine the policy rationale of temporary migration program, which is premised on workers being able to participate meaningfully in the labour market.
The harms caused by this kind of discrimination are especially severe for people who reside in Australia for prolonged periods without a clear pathway to PR. Some workers can spend up to five years in Australia on temporary visas, and often longer, before getting permanent status. Others may remain ‘permanently temporary’ indefinitely, with no realistic prospect of resolving their temporary status. They are subject to exclusion for far longer than others, which, over time, compounds the effects of precarity, underemployment, deskilling, and economic insecurity.
Currently, neither anti-discrimination law nor employment law adequately addresses this form of exclusion. Recognising ‘immigration status’ as a protected attribute would give workers a clear legal avenue to challenge this kind of discrimination, while also establishing a normative standard that such exclusion is unacceptable.
Recommendations
- Incorporate ‘immigration status’ as a standalone protected attribute under state and territory anti-discrimination law, subject to appropriate statutory exceptions. Recognition under antidiscrimination law will have flow-on effects for employment law protections.
- Amend sections 722 and 351 of the Fair Work Act 2009 (Cth) to include the additional ground of ‘immigration status’.
