Work visas: Students Often Forced To Breach Conditions, Lawyers Say

The Australian government could significantly reduce migrant worker exploitation by being more lenient to students who are coerced by employers into breaching their visas, according to immigration and employment lawyers at community legal centres.

Solicitors from the Redfern Legal Centre have asked the minister for immigration and border protection, Peter Dutton, to reform the conditions where international student visas can be revoked, providing a second chance for students who have been pressured or misled by exploitative employers, and encouraging them to come forward.

International students are now allowed to work only 40 hours a fortnight. Redfern Legal Centre’s Sean Stimson and Linda Tucker said unscrupulous employers forced students to breach this cap, then used the threat of penalties to prevent them from reporting underpayment and poor treatment.

“We see clients every week who report serious underpayment or non-payment of wages and other entitlements. But a depressingly regular feature is that our clients, fearing repercussions for their visa status, do not press for entitlements claims,” they said.

Stimson said: “We found there was a business model that targets migrant workers and international students. And what is enabling this exploitation always comes back to the visa. There are laws that protect international students but, if you exceed your 40 hours, then the department of immigration under the Migration Act are entitled to cancel your visa. That is a big enough deterrent to not actually proceed.

“As soon as we outline the potential consequences of visa breach to our clients, we are instructed by them to discontinue. They are instructed to step back into the shadows. The situation has happened that people have come forward but they have been deported before their claim finished and the employer got away with it.”

A 2016 Senate report into worker exploitation described the penalties for visa breaches as “draconian”.

Redfern Legal Centre is asking Dutton to issue a ministerial direction that would allow warnings to be issued in the first instance of a visa breach.

Under the proposed wording, it would direct the department to cancel visas only in cases of “serious non-compliance” and to take into account the relative bargaining power of employees, socioeconomic and cultural factors, and whether the breach was a result of coercion.

Section 499(1) of the Migration Act allows the immigration minister to provide written directions to people or bodies with powers granted under the act.

“There’s enough legislation there, that if we can access it, it will deter exploitative employers and will turn this epidemic around,” Tucker said. “It has to. The deterrents are substantial for employers – we just need to access it”.

Sohoon Lee, the president of Korean Working Holiday Youths, welcomed the proposals.

“For people who are new to Australia and not familiar with Australian laws, having committed an unlawful act already produces insecurity and fear, even if they are coerced into it. I have seen many workers in restaurants who had no other option but to be paid cash-in-hand $12 per hour. Although it is clearly the employers that violated the Fair Work Act, workers still worry that they may have committed something unlawful.

“Revoking the visas of students who have been subject to exploitation is not only cruel and inhumane, but also violates one’s basic human rights, such as the right to due process, fair wages and justice.”

Stimson and Tucker said the proposal had “unanimous support”.

“We have taken this proposal to many individuals and organisations working in this field. In addition we have submitted the proposal to the federal government’s migration review taskforce and discussed the proposal with the taskforce chair, Allan Fels.”

“All the inquiries, reviews, reports and recommendations into protecting vulnerable migrant workers will not strike at the heart of this shameful workplace abuse as long as employers can wield threats of deportation against those who dare to complain.”

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