There has been an upsurge in temporary workers from the Pacific and Timor-Leste absconding over the last couple of years. The government has counted 1,181 Seasonal Work Programme (SWP) absconders from July 2020 to June 2021 (2020/21), up from 225 the previous year. The dominant explanation is that workers have left their employers due to exploitation or lack of work.
Overlooked has been the fact that many workers have absconded to claim asylum. Government figures indicate that 545 SWP and Pacific Labour Scheme (PLS) workers put in asylum applications in 2021/22. Since there are many more SWP than PLS workers, presumably most of these applications are from the former group.
Why are so many temporary workers from the SWP (and perhaps the PLS) absconding to claim asylum?
It is in fact part of a much bigger (and pre-COVID) problem of temporary migrants to Australia putting in asylum applications in order to improve their working rights and prospects. During COVID-19, Pacific workers have started doing the same.
If anyone in Australia on a valid visa applies for asylum, they automatically get a bridging visa, which typically gives them an unrestricted right to work, as well as Medicare. By contrast, SWP and PLS workers are tied to a single employer, and have to pay for private health insurance.
The value of an onshore asylum application typically depends on how long it takes to make a decision on that application since nearly all decisions relating to onshore applications, when finally made, are negative. There are now so many asylum applications (SWP and PLS applicants are only a tiny minority) that the system has become clogged, and it can take three years or more before the claim is finally rejected. That extended period of unrestricted, Medicare-eligible work rights makes an application for asylum very attractive even if it is almost certain to be rejected.
Since November 2019, data on protection claims have been released monthly and by nationality (but not by visa type). The citizens of the five SWP/PLS countries of Fiji, Solomon Islands, Timor-Leste, Tonga and Vanuatu together submitted 1,200 asylum claims between July 2020 and June 2021, that is, while borders have been closed. Comparing this number with the 545 mentioned earlier suggests that slightly less than half of these claims are by SWP/PLS workers. By December 2021, the total from these five countries claiming asylum since borders closed reached 2,000.
Among these countries, most applications are from Fijians and Tongans, but I focus here on Timor-Leste and ni-Vanuatu applications, since in these two cases there are no records of claims being made in the months before borders were closed in March 2020. We can’t be sure, but it seems likely that most if not all of the citizens of these two countries now claiming asylum are SWP and PLS workers.
From April 2020 to December 2021, 398 Timorese applied for asylum in Australia. There is no change in this number for the last six months. However, the number of ni-Vanuatu claiming asylum continues to grow and reached 327 by December 2021.
The Department of Home Affairs made 164 decisions on the Timorese asylum applications by the end of last year. This is the number of applications received by the end of August 2020, implying that it has taken significantly longer than a year for these decisions to be made. All of the decisions were rejections.
The fact that no new Timorese asylum applications have been made since those rejections were handed down is encouraging. However, 91 of those rejected had applied by the end of December to have their rejection reviewed by the Administrative Affairs Tribunal. It currently takes 119 weeks (p.6) for the AAT to review a typical asylum seeker case, so this gives the appellants another two years to work.
The first ni-Vanuatu application for asylum was received in July 2020, but the first decisions on these cases are not recorded until November 2021. In November and December 2021, 17 applications were decided on; all were rejections.
What has happened here is a problem of contagion. Word has got round that applying for asylum is a good way to improve your working rights and prospects. One might not approve of workers pursuing a legal loophole, but one can hardly blame them for responding to the incentives on offer.
The obvious, and only, solution is for government to speed up processing times. If workers know that their asylum applications, if unfounded, are likely to be rejected quickly, they will be less likely to submit them. This will require more resources in the short term for the Department of Home Affairs (which makes the initial decision) and for the Administrative Appeals Tribunal (to which most rejected by the Department appeal). However, in the longer term, it would save money because it would lead to a reduction in the number of applicants.
The SWP and PLS schemes have got caught up in a much bigger problem. Before borders were closed, more than 20,000 onshore applications for asylum were being made every year, of which fewer than 10% were accepted as legitimate. Even with borders closed, asylum applications have averaged 1,000 a month. The government could prioritise the processing of the asylum applications of SWP and PLS workers, but it really needs to address this much bigger problem. Applying for asylum is a right that should be protected, but unless the processing of asylum applications is speeded up we will continue to see protection visa applications used as a de facto temporary work visa, and the integrity of schemes such as the PLS and SWP undermined.
Encounters with aggrieved workers (noting those that were courageous enough to speak, the majority aren’t), and some that have left their work, raises some serious human rights issues, under both domestic and international legal frameworks, including questionable contractual terms in an environment that seems out of firm oversight mechanisms.
Asylum visa is not an issue, but a result of deeper issues of inequities. Imputations by commentators that Pacific Islanders may have possibly premeditated such strategy is misleading and unfortunately only adds to fueling the patronising views among some quarters.
Speeding up the processing time for such visa, yet knowing fully that the expected outcome would be negative, as the article observes to be the case, may serve primarily as deterrent but that would overlook some of the real issues of inequity embedded in the labour scheme. Contrary to the conclusion, the ‘intergrity’ of the scheme should not come at the expense of serious concerns with its operations, even if those complaints are ‘minority’. Victoria Stead makes some good observations: https://theconversation.com/australia-needs-better-conditions-not-shaming-for-pacific-farm-workers-171404
Research into this is ongoing but I hope to properly discuss in an article/blog soon. I think there are ways this scheme can be better improved for both Australia and the Pacific.
Thank you Stephen for another insightful and accurate dive into the issues we confront. It’s always important to see all sides of a story, especially one that has and continues to cause so much disruption and has a strong ripple effect throughout our cohorts. We as AE’s and the AEA have long rallied all in power to fix the loopholes that drags these things out.
Thank you also to Mark and Johnathon for providing valuable comment across the spectrum. From our side, as a major AE, we fully support strong governance and a strong cop on the beat who thoroughly investigates and deals decisively with proven issues.
We AE’s also often feel battered and bruised, probably never more so than in recent times. Maybe our mantra of the good and happy stories far, far outweighing those verified sad and injust acts has got a little lost.
In my opinion this article has hit the nail on the head and finally some alternate view which is far closer to my experiences.
What many media, politicians, members of the public don’t seem to understand is that a lot of seasonal worker see absconding as a general option to extend their stay in Australia.
Throughout the years of working with seasonal workers I have been fortunate not to have too many experiences with absconding.
However of the employees who have absconded most were poorly behaved outside of work, drinking alcohol excessively and had poor attendance.
Two seasonal workers (employed through labour hire) were from Timor Leste and were returning workers of three years. When they were at my business they were employed on a five month placement each time and would work a minimum of 38 hours five to six days a week during this placement.
When I got information that they were considering absconding I strongly discouraged them from doing so. At the time they informed that it would be better for them to claim asylum and be in Australia for five straight years rather then keep coming back and forth on individual placements.
I also had two Solomon Island workers this season abscond within two days of arriving in Australia. This was before they even stepped one foot on my business.
Another year I had 14 Vanuatu workers employed under labour hire all abscond during our harvesting season. At this time, which was before COVID 19, they were averaging nothing short of 45 hours per week, hourly paid work. Each one of the workers failed to turn up to work on a regular basis. When they did, they strongly smelt of alcohol. Finally before they absconded they smashed up their accommodation.
It is all too easy just to continually blame the farmer for seasonal workers bad behaviour and absconding. It must be noted that many seasonal workers entered the country with bad and selfish intentions.
Until the Australian government closers this massive loop hole of handing out bridging visas for protection with work rights the problem will only increase not decrease, particularly when the new agri visa comes into action.
Like i said earlier my experiences for most part in the program have been massively positive. I now have a core group of seasonal workers who are highly trained and skilled employees.
Each have used the money earned from their hard work to build houses and start business in their own country. I am a huge believer in the program and proud to be part of it. However I fear that if this growing problem is not fixed the program is doomed.
This is the sad and honest truth.
The analysis here fails to fully explore the situation and other parts of the solution. We have dealt with scores of workers who have left their approved employer. In all the cases we have dealt with it has been because they have had a lack of work. Sometimes it has been no work for six or eight weeks, while still having deductions for accommodation, vehicle rental, health insurance and other charges chewing up their hard earned savings. They are unable to send money home to their families. In many cases they had repeated promises of work that never happened, so sick of failed promises they go and look for work elsewhere.
The pandemic with the border closures has made it hard on employers to keep workers stuck in Australia in work at some times of the year. However, there also appears to be cases of poor management by employers of finding work for the workers, and it is the workers who bear the brunt.
Workers who disengage from their approved employer and go and work elsewhere know their visa can be cancelled, so filing a protection visa is a way of being able to work with a legal visa off the SWP and PLS. What many workers fail to realise is if they file a meritless protection claim that is rejected, they may find they are then banned from being able to return to Australia for three years.
We also have experience of migration agents engaged in illegal activity, actively encouraging workers to file protection claims. One migration agent we were able to report to authorities was encouraging Tongan workers to file meritless protection claims while scamming $5,000 from each worker for filing the claim.
We have spent a lot of time talking to workers who have disengaged from their approved employers and helping them reconnect into the SWP. In the cases we have worked on the Department of Education, Skills and Employment and the Department of Home Affairs have often gone the extra mile to assist workers in the re-engagement and find them work within the SWP.
The solutions to the problem not outlined in the article are:
– Faster processes to allow workers to transfer between workplaces with their existing approved employer;
– Faster processes to allow workers to transfer between employers when their existing approved employer is not able to meet the obligation of providing an average of 30 hours of work per week for several weeks;
– A formal program that actively locates workers who have disengaged from the SWP and PLS and encourages and facilitates them to come back to the programs and drop meritless claims for protection; and
– A greater crackdown on employers and migration agents that encourage workers to leave the programs and file meritless protection claims.
Hi Mark, Thanks for your comment. My blog wasn’t about the problem of absconding in general, but about applications for protection visas as a subset of that more general problem. Your suggestions will help with reducing the total number of absconding workers, but unless protection visa applications are processed more quickly, there will be a strong incentive for workers to apply for protection to get the multi-year, unrestricted working rights and Medicare that typically flow from such an application. We see this happening across the labour force, not only in the SWP and PLS. Even with borders closed, there are about 1,000 applications a month for asylum, with a grant rate of less than 10%, and much less for most nationalities. Regards, Stephen.
Thank you for your honest comments re the seasonal workers. I think that the labor companies be cut out of the process altogether. So many deductions, it really kills them.