Are you sure your workers are illegal?

Are you sure your workers are illegal?

Yes, I meant to say illegal? There are two parallel stories here, the ‘Bridging Visa rort’ and the use of undocumented workers in the horticulture industry.

What is the ‘Bridging Visa rort’?

Non-citizens who have overstayed their visas and volunteer their presence to authorities are often provided with a Bridging Visa until their situation is investigated. Further, if a visitor applies for protection or refugee status, the process is usually to automatically provide a Bridging Visa until the request for a permanent visa can be dealt with.

Bridging Visas are intended to be temporary permission to reside in Australia until background checks and other matters are sorted out. The desired result for the applicant is usually to be granted another visa to stay in Australia and often to achieve permanent residency. If their application fails they will need to leave Australia, either voluntarily or by deportation.

Turning illegal into legal

The important factor in this situation is that Bridging Visas almost always come with work rights so that a person who remains living in Australia can support themselves. Work rights on Bridging Visas are included whether the person applying had to right to work in Australia initially or not.

An application for a simple tourist visa does not come with work rights and is limited to a short term, usually 3 months. Tourist visa applications are a relatively simple and inexpensive process, and citizens of some ‘low risk’ countries such as Malaysia, Singapore, and Hong Kong can even apply online.

What people have worked out is that if someone comes into Australia and wishes to work, but does not have the right to do so, by gaining a Bridging Visa they can secure that right. So the simple act of applying for refugee status and gaining a temporary Bridging Visa has the result of providing that person with the legal right to work.

Dragging the process out for years

The system is designed such that the next step in the process is for that application to be assessed, and if a visa is refused the applicant must leave the country. However, the system has appeals mechanisms built-in which take time to be heard, and the applicant can remain in Australia until all avenues of appeal are exhausted – with their work rights intact.

Accessing all levels of appeal can drag out the situation for years. There have been so many people manipulating the system in this way in the past few years that the appeals process now has extensive queues, making the process last even longer. And all the time that the person remains in Australia with that Bridging Visa they can, and do, work. The media has recently reported on paid agents, and even criminal elements, involved in the coordination of people to gain legal work rights in Australia by this method.

The Malaysian connection

Malaysia is a country with access to the easy online visa application system and is geographically very close. Australian wages are substantially higher for unskilled work than in their country, so it is not surprising that nationals from our South East Asian neighbour dominate this method of manipulating visas. As a result, the practice has often been referred to as the ‘Malaysian visa rort’. Even the Malaysian Government has expressed concern about this situation.

What does this have to do with horticulture?

A visa checking process known as VEVO (Visa Entitlement Verification Online) is available on the Department of Home Affairs website. VEVO is free and easy to use, provides an instant response to a request for visa details, and can provide an employer with peace of mind as to the working status of people on their property. Whether employing workers directly, or through a labour hire contractor, knowledge of whether employees are legal to work is assumed in any legal challenge to the grower such as an immigration raid, because VEVO makes it so easy to check.

Services such as Harvest Labour Offices are also available to perform this function on behalf of the employer at no cost.

Whether the manipulation of visas in this way is a ‘rort’ or not is a judgment call. If a visitor to Australia has a legal right to work, however they have achieved that, employing them with the knowledge of their workrights status is a situation with far less risk than not knowing at all.