Dehm, Sara; Vogl, Anthea --- "Migration law and women: Gendering Australia's migration program" [2018] PrecedentAULA 7; (2018) 144 Precedent 22

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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]

1. The permanent Migration Program that consists of two main streams: skilled and family migration.

2. The Humanitarian Program that consists of onshore refugee status determination (RSD) and of offshore refugee resettlement.

3. A series of temporary visa categories including international students, working holiday makers, skilled temporary residents (457 visa-holders) and temporary residents under other programs.

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:

• have an eligible employer willing to sponsor the applicant in a nominated skilled position;

• satisfy the relevant skills, experience and background for the position, including meeting certain training benchmarks;

• meet English language requirements; and

• meet certain character, age and health requirements.^[10]

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 [e-mail] / [e-mail].

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^[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 (1^st 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).