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University of Technology Sydney Law Research Series |
Last Updated: 21 September 2020
MIGRATION LAW AND WOMEN: GENDERING AUSTRALIA’S MIGRATION PROGRAM
By Sara Dehm and Dr Anthea Vogl
Of the 189,097 people who
migrated permanently to Australia under Australia’s Migration Program in
2014-15, the majority –
some 100,088 people – were women. Similarly,
of the 4.8 million people travelling to Australia on a temporary visa (that is,
as a visitor, a student, a working holiday maker or a temporary work resident),
approximately 2.5 million were
women.[1] At face value, these
statistics reveal little of what scholars of migration have long identified:
that patterns and experiences of
movement around the world are starkly
gendered.[2]
As Hyndman and
Giles note, mobility is political, and examining mobility reveals the
highly ‘disparate access to movement of refugees and other migrant
subjects’.[3] In considering who
has access to mobility and migration programs, gender is critical factor. Gender
shapes migration to Australia,
both in terms of patterns of migration and the
experiences of migrants travelling to Australia on a temporary or permanent
basis.
Australia’s migration intake can broadly be divided into
three main groups, each with distinct legislative and policy frameworks,
enforcement practices and social
implications:[4]
In this article, we use two case
studies – the admission of skilled migrants under the Temporary Work
(Skilled) visa (subclass
457) scheme and the admission of refugees under
Australia’s onshore humanitarian program – to understand the
gendered
nature, operation and effects of Australian migration law more
generally. These two case studies reveal that the gendered nature
of migration
to Australia is evident in even the most cursory examination of particular visa
categories and forms of migration, even
if the experiences of and implications
for women migrants differ across different streams of migration and specific
visa categories.
For example, female temporary skilled migrants are more likely
to be over-represented in low-paid or casualised care industries,
as nurses or
carers, and women asylum seekers face risks of gendered violence when crossing
borders unlawfully. Across both broad
legal categories of migration, migration
amplifies and intersects with social prejudices and economic inequalities to
exacerbate
the risks that women may face. This means that the complex, gendered
nature of migration law is best approached with attention to
the legal,
regulatory and social context of specific visa categories and classes of visa
applicants. That is, as migration scholar
Catherine Dauvergne puts it, migration
statistics do not reveal one story about female migrants but rather,
‘different stories
in different categories of migration, as well as
stories that are racialised and sexualised in different
ways’.[5]
LABOUR
MIGRATION LAW IN AUSTRALIA
Australia’s Skilled Migration
Program is officially based around the principle of
‘non-discrimination’. According
to a Department of Immigration and
Border Protection (DIBP) Factsheet, this means that ‘anyone from any
country can apply to
migrate, regardless of their ethnic origin, gender or
colour, provided they meet the criteria set out in
law’.[6] Yet, as feminist
scholars of migration law have demonstrated, this professed principle of
non-discrimination is at odds with the
very function of migration law. Migration
law is, as Dauvergne writes, ‘an exercise in discriminating’. It
provides a
legal framework for states to select which migrants will ‘best
meet its needs’.[7] For
Dauvergne, Australian migration law is fundamentally gendered as it encodes in
its legal categories and selection processes a
preference for able-bodied,
skilled and economically productive migrants. As she notes, it is
‘predictable that deciphering
the code reveals a preference for men’
as primary applicants in skilled migration
streams.[8]
This gendering of
selection processes can be seen in the operation of the Temporary Work (Skilled)
visa (subclass 457) scheme, soon
to be reformed into the Temporary Skill
Shortage (TSS) visa in March 2018.[9]
First introduced in 1996, the 457 visa scheme has rapidly grown to become a
sizable portion of Australia’s temporary migration
program in the last two
decades. In order to be eligible for a 457 visa, a person must satisfy the
following key criteria:
The
requirement that applicants meet seemingly neutral factors such as educational
qualifications and language skills risks translating
the social and cultural
advantages that men may have in accessing education, employment and wealth in
their home states into the
‘preference grid’ of Australian migration
law.[11] This is demonstrated by the
fact that women make up only 28 per cent of primary applicants to whom visas are
granted under the 457
scheme.[12]
While this gender imbalance varies greatly across sponsoring industries, it
nonetheless demonstrates that in practice temporary labour
migration schemes
like the 457 visa scheme provide more migration pathways for men. For example,
although women constitute approximately
56 per cent of primary applicants in the
healthcare and social assistance industry, women make up as little as 6 per cent
and 9 per
cent of primary applicants respectively in industries such as
construction and mining.[13] In
addition, migrants under the 457 visa scheme are eligible to bring their
partners and dependant members of their families (known
as secondary
visa-holders). Unsurprisingly, statistics indicate that women are
disproportionately represented as secondary visa holders.
As we discuss below,
this embedded inequality between visa-holders has serious implications in
circumstances of family violence or
breakdown.
These gendered patterns
are amplified by the fact that only certain occupations are eligible to
participate in the 457 scheme. Since
April 2017, eligibility for a nominated
skilled position is determined by two lists: the Short-term Skilled Occupations
List (STSOL)
and the Medium and Long-term Strategic Skills List
(MLTSSL).[14] Applicants made under
the STSOL are generally only eligible for two-year visas, while those made under
the MLTSSL may be granted
four-year visas.
While the 2017 reforms
included the immediate tightening of the list of eligible occupations (reducing
it from 651 to 435 eligible
occupations), certain gendered occupations such as
sex work have long been entirely excluded from the 457 scheme. Although there
are no official statistics on the size of the industry, recent studies estimate
that approximately 20,000 people work as sex workers
each year in Australia, a
substantial proportion of whom are women migrant workers from China, Thailand
and increasingly South Korea.[15]
Even though sex work is recognised within the Australian and New Zealand
Standard Classification of Occupations (ANZSCO) under the
category of
‘other personal service workers’ alongside civil celebrants, hair
salon assistants and first aid
trainers,[16] sex workers can only
enter Australia on a working holiday, tourist or student visa and risk working
in breach of visa conditions.
As sex worker advocacy organisation Scarlett
Alliance has pointed out, this legal framework places women in a precarious
situation,
making it more difficult to report violence or exploitation. The
vulnerabilities experienced by migrant sex workers because their
labour is not
recognised as lawful labour migration exemplifies the gendered nature of
apparently neutral labour migration categories
and
pathways.[17]
Despite the
gendered implications of temporary migration schemes such as the 457 program,
law-makers in Australia have largely not
attended to the need for a gendered
analysis of skilled or temporary labour migration to Australia. For example, in
2016, a Senate
report into Australia’s temporary work programs, scathingly
entitled A National Disgrace, documented systemic exploitation and
recommended a comprehensive review of core temporary migration
pathways.[18] Although some
testimony to the Committee mentioned sexual exploitation in workplaces, there
was no explicit consideration of the
position of women temporary migrants in
Australia, or the specific vulnerabilities they face in the context of
employment.
Where it has been addressed, the gendered nature of
Australia’s migrant workforce has been taken up by government in an
inconsistent
and ad hoc manner. A notable example is Australia’s Seasonal
Worker Program, a relatively small scheme that allows people from
nine Pacific
Island states and Timor-Leste to undertake seasonal work primarily in
Australia’s agriculture and accommodation
industries.[19] The Programme has
two stated objectives: to fill seasonal labour shortages in select Australian
industries and to contribute to ‘development
objectives’ in the
Pacific through remittances, employment experience and training. Participation
in the Program has been predominantly
by men, with only 30 per cent of
participants between 2012 and May 2015 being women. A 2016 Parliamentary Inquiry
into the Program
found that women were ‘under-represented and
under-utilised’ and recommended increasing the gender equity of the scheme
on the basis that increasing women’s employment has been shown to
‘contribute to economic growth, development, stability
and poverty
reduction’ in the Pacific
region.[20]
Critically, the
goal of gendering migration pathways should not simply be to increase or
‘equalise’ the places available
for female migrants. Certain
attempts to increase female participation in temporary labour migration schemes
play into broader gendered
and postcolonial relations, including –
perversely – arguments about women’s empowerment that often rely
upon placing
other, non-white women in precarious, exploitable positions. For
example, arguments around women’s empowerment have recently
been used to
call for new migration pathways for ‘unskilled’ nannies from Pacific
Island states to ‘help Australian
women get back to work’ and
address the current childcare ‘affordability crisis’ experienced in
some Australian
capital cities.[21]
So, even as the demand for certain forms of feminised labour are promoted and
create migration pathways, these schemes have gendered
implications for the
people who migrate as well as for the communities where their labour is
required.
Table 1: Australia's Permanent Migration
Program
Table 2: Australia's Temporary Labour
Migration Program
REFUGEE LAW IN AUSTRALIA
In contrast to the area of labour
migration law, scholars, advocates and practitioners have long acknowledged the
gendered nature
of refugee law.[22]
Reforms recognising the particular kinds of private harms women face have
reshaped the very basis of refugee law, even though women
constitute only a
small minority of those able to cross international borders and make in-country
refugee claims. For example, in
2010-11 women comprised only around 30 per cent
of principal onshore applicants arriving by plane, and only 16 per cent of
applicants
arriving by boat.[23]
However, as early as 1991, in response to much transnational feminist
advocacy and analysis of refugee claims, the UNHCR issued its
Guidelines on
the Protection of Refugee Women, which acknowledged the gendered nature of
persecution and of refugee movements, and advocated a gender-sensitive approach.
This
led to the publication of the UNHCR’s Gender Guidelines
(2002), which recognised that gender-related persecution carried out in the
private sphere by non-state actors could amount to persecution and
that women subject to gender-based harms constituted a social group
requiring protection as refugees. Several Refugee Convention signatory
states,
including Australia, followed with their own Gender Guidelines, which sought to
ensure both that refugee law recognised gendered
harms as persecution and
that procedural aspects of determination were sensitive to the fear and
shame that applicants experience in articulating private sphere
harms such as
sexual and other violence.[24]
These developments responded to the previously entrenched gendered
biases in refugee law, which more readily recognised political
acts in the
public realm as persecution, over other forms of violence inflicted by non-state
actors in the ostensibly ‘private’
sphere of the family. As BS
Chimni has noted in his influential critique of the archetypal refugee,
international refugee law has
long normalised a Eurocentric image of the
refugee, as ‘white, male and anti-communist’, and as fleeing
socialist states
that purportedly violated liberal
rights.[25] Nonetheless,
jurisprudential developments since the 1990s demonstrate that international and
domestic refugee law can accommodate
gender-based claims.
Of the five
grounds of persecution in the international definition of a refugee (race,
religion, nationality, political opinion and
particular social group), the
ground of ‘particular social group’ (PSG) has become the most common
for advancing and
recognising gender-based claims. The leading Australian case
is Minister for Immigration and Multicultural Affairs
v Khawar,[26] in which
Gleeson CJ recognised that ‘women’ could constitute a PSG given that
‘[w]omen in any society are a distinct
and recognisable group ... their
distinctive attributes and characteristics exist independently of the manner in
which they are treated,
either by males or by
government’.[27] The applicant
in Khawar was a Pakistani woman who had been subject to serious and prolonged
abuse by her husband and his family.
At stake was the question of whether she
could be granted refugee status on the basis that local police’s refusal
to offer
her protection from domestic violence constituted ‘systematic
discrimination against women which is both tolerated and sanctioned’
by
the Pakistani state. While the High Court remitted the matter to the Refugee
Review Tribunal to make such a finding of fact, the
decision opened the way for
the PSG category to accommodate gender-based claims.
Despite this
jurisprudence, many women asylum seekers continue to face distinct challenges
when articulating gendered-based claims.
As Arbel et al note, significant high
level case law and guidance has failed to significantly shift gendered
assumptions and stereotypes
at lower levels of
decision-making.[28] Indeed, Baillot
et al have carefully documented how significant protections for sexual assault
victims within criminal justice systems
are not replicated in the assessment of
claims made by refugees fleeing sexual violence. Sexual assault victims within
RSD are still
treated with suspicion, disbelieved because of the lack of early
and full disclosure, and questioned without sensitivity to culture
or shame in
the context of sexual violence.[29]
Ethnocentric stereotypes also continue to shape decision-making in relation to
gay and lesbian applicants, as well as those seeking
protection on the basis of
gender identity, who are frequently assessed as lacking
credibility.[30]
When
assessing the substance of gendered refugee claims, it is also the case that the
law has frequently failed to ‘hear narratives’
that do not conform
to racist and colonial assumptions about the kinds of harm women of colour
experience. Connie Oxford has documented
that refugee women are most likely to
succeed when presenting claims as gendered victims, rather than as political
actors. She details
cases where ‘exotic’ and racialised harms such
as female genital mutilation may be recognised, while more ‘prosaic’
forms of harm (such are forced marriage) are not deemed to amount to
persecution.[31]
For women
asylum seekers awaiting determination of their claims, Australia’s
punitive regional detention and processing arrangements,
reintroduced under the
Labor government in 2012, have also given rise to new gendered harms and
vulnerabilities. These regional arrangements
have separated families and led to
increased violence against women and children, including sexual violence.
Between 2012 and 2015,
33 sexual assault incidents against asylum seekers on
Nauru RPC were reported, including three cases of
rape.[32] Further, the Australian
government has failed to provide meaningful avenues to report or redress this
violence.[33] Finally, the failure
to provide adequate healthcare has had a significant impact on women’s
reproductive rights and health.
For example, in Plaintiff S99/2016 v Minister
for Immigration and Border
Protection,[34] Bromberg J held
that the Minister had breached a duty of care to procure a ‘safe and
lawful’ abortion for a refugee who
had been raped on
Nauru.[35]
IMMIGRATION,
DEPENDENCY AND FAMILY VIOLENCE
The gendered nature of immigration law
benefits from a visa-by-visa analysis and attention to the differential effects
of gender in
each category of migration. At the same time, Australian
immigration law recognises the gendered nature of family violence and its
impact
on dependent visa-holders (who are typically migrant women) across
certain visas categories.[36] The
Family Violence Provisions (FVP) are primarily restricted to migrants on
temporary partner visas who would have been eligible
for permanent residency had
family violence not caused the relationship to end. To be eligible, a person
needs to prove both that
the relationship was genuine and that the family
violence occurred during the relationship. Meeting the evidentiary standard is
often
onerous and expensive.[37]
While the language of the FVPs is gender-neutral, referring simply to
‘victims’ and ‘perpetrators’, research
suggests that it
is primarily women who make use of the
FVP.[38] In 2015-16, for example,
the DIBP granted 403 visas to women under this family violence exemption (out of
a total 529
applications).[39]
There is
no such equivalent protection for women migrants who are on a range of other
temporary visas that are not attached to a sponsoring
partner visa and that may
not lead to permanent residency. A 2017 study on temporary migration and family
violence in Australia concluded
that in such situations, women’s
precarious migration statuses can actually provide additional and significant
‘leverage’
for family violence and intimate partner
control.[40] While a 2012 Australian
Law Reform Commission’s inquiry into family violence recommended expanding
the family violence exception
to cover a wider range of visa subclasses, it
stopped short of recommending the broadening of the exception to secondary
holders
of temporary visas.[41]
Instead, the Commission suggested creating a new temporary visa to allow victims
of family violence ‘to access services and
make arrangements to return to
their country of origin or to apply for another visa’. In effect, this
means that women on temporary
visas may face a choice between remaining in a
violent relationship or leaving the country. Community organisation, the
Immigrant
Women’s Speakout Association, has called for the family violence
exemption to be extended to 457 visa-holders to allow for
women on secondary
visas to access independent pathways to permanent
residency.[42] As with
gender-sensitive and feminist-driven reforms within refugee law, some of the
greatest barriers to women accessing the family
violence protections relate to
evidence and procedure, and mirror the well-documented difficulties women face
in proving domestic
violence in the criminal justice
system.
CONCLUSIONS
Women migrant experiences are diverse
and multifaceted, and cannot be reduced to singular categories or
generalisations. As US scholar
Joan Fitzgerald has observed, gender is an
‘organising principle, not a simple variable’ in migration and
migration law.[43] And yet, there is
limited detailed, qualitative research addressing the experiences of temporary
and permanent female migrants in
Australia, and very limited gender-specific
data across visa categories. A landmark 2017 report into temporary migrant work
in Australia
has begun this important work, revealing disturbing and endemic
underpayment across all temporary migrant workers, with workers in
low-paid
‘feminised’ professions such as childcare and nannying especially
susceptible to wage
theft.[44]
While much
Australian migration law appears to be formally ‘gender neutral’,
insofar as categories of migration are not
designed or defined according to
gender, a cursory study of any visa category reveals migration policy is in fact
deeply gendered
in both its operation and effects. Tracing the gendered impact
of migration policy is a necessary exercise, both to unpack the apparent
‘gender neutrality’ of certain migration programs, but also to
ensure that gender-sensitive protections are put in place
for migrants or
refugee applicants who may be at risk of particular harms or
exploitation.
Sara Dehm and Dr Anthea Vogl are lecturers in
law at the University of Technology Sydney, and experts in refugee and migration
law. EMAIL Sara.Dehm@uts.edu.au
/ Anthea.Vogl@uts.edu.au.
[1] Statistics taken from DIBP,
Australia’s Migration Trends 2014-15 (2016) 114
<https://www.border.gov.au/ReportsandPublications/Documents/statistics/migration-trends-14-15-full.pdf>.
[2]
See E Kofman and P Raghuram, Gendered Migrations and Global Social
Reproduction (Palgrave, 2015); A Boucher, Gender, Migration and the
Global Race for Talent (Oxford University Press, 2016).
[3] J Hyndman and W Giles,
‘Waiting for what? The feminization of asylum in protracted
situations’ (2011) 18 (3) Gender, Place & Culture
online.
[4] The legislative
framework is set out in the Migration Act 1958 (Cth) and the Migration
Regulations 1994 (Cth). The Regulations stipulate different sub-classes of
visas and the associated conditions.
[5] C Dauvergne,
‘Citizenship, Migration Laws and Women: Gendering Permanent Residency
Statistics’ [2000] MelbULawRw 11; (2000) 24 Melbourne University Law Review 280,
282.
[6] DIBP, Factsheet:
Australia’s Migration Programme (online)
<https://www.border.gov.au/about/corporate/information/fact-sheets/01backgd>.
[7] Dauvergne, above n 5,
292.
[8]
Ibid.
[9] In April 2017, the
Turnbull government announced the abolition of the 457 visa program and the
introduction of a new TSS visa in
March 2018 designed to address
‘genuine’ domestic skill shortages.
<https://www.border.gov.au/Trav/Work/457-abolition-replacement>.
[10]
Migration Regulations 1994 (Cth), Schedule 2, ‘Subclass 457’.
[11] See above note 5,
298.
[12] In 2014-15, 51,125
visas were granted to primary applicants under the 457 visa scheme (36,644 to
men, 14,481 to women).
[13] See
above note 1.
[14] DIBP,
‘Fact Sheet One: Reforms to Australia’s temporary employer sponsored
skilled visa program – abolition and
replacement of the subclass 457
visa’ (April 2017); Migration (IMMI 17/060: Specification of
Occupations–Subclass 457
Visa) Instrument 2017
<https://www.legislation.gov.au/Details/F2017L00848>.
[15]
Antonia Quadara, Sex workers and sexual assault in Australia: Prevalence,
risk and safety (Australian Centre for the Study of Sexual Assault, 2008)
<https://aifs.gov.au/publications/sex-workers-and-sexual-assault-australia>;
B Donovan et al, The sex industry in New South Wales: A report to the NSW
Ministry of Health (Kirby Institute, University of New South Wales, 2012);
Lauren Renshaw et al, Migrant sex workers in Australia (Australian
Institute of Criminology, Research and Public Policy Series 131,
2015).
[16] Australian Bureau of
Statistics and Statistics New Zealand, Australian and New Zealand Standard
Classification of Occupations (1st rev ed,
2009).
[17] Scarlett Alliance,
Submission to the 457 Visa Integrity Review Committee’, 30 April 2014,
2.
[18] Commonwealth Senate, A
National Disgrace: The Exploitation of Temporary Work Visa Holders (March
2016).
[19] Participants are
issued a Temporary Work (International Relations) visa (subclass 403), formerly
a Special Program (subclass 416)
visa.
[20] Parliament of the
Commonwealth of Australia, Seasonal change: Inquiry into the Seasonal Worker
Programme (Report of the Joint Standing Committee on Migration, May 2016).
Another trial scheme, Pacific Microstates – Northern Australia
Worker
Pilot Program, has been introduced, to address perceived labour shortages in the
profitable tourism industry in Australia’s
north. In contrast to the
Seasonal Worker Programme, it is estimated that up to 80 per cent of
participants may be women. Australia’s
Microstate Visa Brings in Kiribati
Workers’, Pacific Periscope, 16 January
2017
<https://pacificperiscope.wordpress.com/2017/01/16/australias-microstate-visa-brings-in-kiribati-workers>.
[21]
N Khadem, ‘Bring in Nannies from the Pacific Islands to Help Australian
Women Get Back to Work, Says Diane-Smith Gander’,
21 April 2017, Sydney
Morning Herald
<http://www.smh.com.au/business/workplace-relations/bring-in-nannies-from-the-pacific-islands-to-helpaustralian-women-get-back-to-work-says-diannesmith-gander-20170420-gvoiyv.html>
.
[22]
See E Arbel, C Dauvergne and J Millbank, Gender in Refugee Law: From the
Margins to the Centre (Routledge,
2014).
[23] Department of
Immigration and Citizenship, Asylum Trends 2010-11,
<https://www.border.gov.au/ReportsandPublications/Documents/statistics/asylum-trends-aus-annual-2010-11.pdf>.
These statistics are dated as the Department has not provided detailed,
gender-disaggregated statistics available in more recent
years.
[24] Administrative Appeals
Tribunal Migration and Refugee Division, ‘Guidelines on Gender’
(1996, updated 2015).
[25] B S
Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’
(1998) 11(4) Journal of Refugee Studies
350.
[26] [2002] HCA 14; (2002) 210 CLR 1. Note,
subsequent jurisprudence has been divided as to whether ‘women’ as
an unqualified category constitute a PSG. In
most cases a narrower category is
articulated.
[27] Ibid,
[35].
[28] See above note 22,
6-7.
[29] H Baillot, S Cowan and
V Munro, ‘Seen but Not Heard? Parallels and Dissonances in the Treatment
of Rape Narratives across the
Asylum and Criminal Justice Contexts’ (2009)
36 Journal of Law and Society 195,
201.
[30] L Berg and J Millbank,
‘Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum
Claimants' (2009) 22(2) Journal of Refugee Studies
195.
[31] C Oxford,
‘Protectors and Victims in the Gender Regime of Asylum’ (2005) 17
National Women’s Association Studies Journal
18.
[32] T Allard,
‘Somalian refugee Abyan becomes a political pawn after abortion request on
Nauru’, Sydney Morning Herald, 4 October
2015.
[33] See, eg, Australian
Human Rights Commission, The Forgotten Children: National Inquiry into
Children in Immigration Detention (2014)
<https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/forgotten-children-national-inquiry-children>.
[34]
[2016] FCA 483.
[35] See S Tully,
‘An Emergent Duty of Care Owed by Australia to Asylum Seekers?’
(2016) 23 LSJ: Law Society of NSW Journal
84.
[36] Migration Regulations
1994 (Cth) Pt 1, div 1.5.
[37] K Viegas and Victoria
Stevenson, ‘Family Violence – The Immigration Law Context’
(2016) 23 Law Society of NSW Journal
77.
[38] M Selgrave, Temporary
Migration and Family Violence: An analysis of victimisation, vulnerability and
support (Monash University, September
2017).
[39] Ibid,
2.
[40] Ibid,
1-2.
[41] ALRC, Family
Violence and Commonwealth: Improving Legal Frameworks (2012), Chapter
20.
[42] P Sinha, ‘The need
to apply family violence provisions to subclass 457 visas’, SBS
News, 13 June 2016.
[43] J
Fitzpatrick, ‘The Gender Dimension of US Immigration Policy’ (1997)
9 Yale Journal of Law and Feminism 23,
24.
[44] L Berg and B Farbenblum,
Wage theft in Australia: Findings of the National Temporary Migrant Work
Survey (November 2017).
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