A SHIELD OR A SWORD? MIGRATION LAW AND POLICY AND MODERN SLAVERY IN AUSTRALIA

Abstract

How might migration legislation and policies contribute to modern enslavement of migrants in Australia? Migration law and policy are a shield in the sense that they have been used and have the potential to be used to shield or protect trafficked individuals and those subject to modern slavery. Nevertheless, the state could be complicit in modern slavery through its migration law and policies exemplified by English language requirements for visas and for entering into certain professions. By placing the English language barrier between migrants and their economic and professional aspirations in obvious cases when a demand for proof of English language proficiency must not be made in the first place, the Australian Government and institutions create the environment conducive for excluding migrants from the professions and exposing them to economic abuse and exploitation. The stated basis of the English language requirements for Australian visas is that English language ‘is critical to getting a job’ and safely practising a profession and participating in Australian society. Yet migrants from non-exempt countries are required to sit for an English test when they apply for permanent resident visas (such as Subclass 186) and temporary visas (such as Subclass 485), even when they are present and already employed in Australia. Educational qualifications in English awarded by Australian and non-Australian tertiary educational institutions that satisfy the Australian study and qualification requirements are not the acceptable proof of competency in the English language. The effect of non-recognition of educational qualifications in English as proof of the English language ability is that visa applicants from non-exempt countries, even those present and working in Australia and/or who have completed a course of study in Australia, have to sit for an English language test. The content of this test bears no connection whatsoever with the English language used in practice. The test has an expiry date thereby tying migrants’ English language ability to the test expiry date, suggesting that once the test expires, so does their competency in English. Failing one component of the test requires resitting all the four components. Whereas an Australian educational qualification in English is required for admission to the legal, medical and nursing professions, the English language competence of migrants from non-exempt countries who hold the qualification is extracted from this qualification. Therefore, migrants cannot rely on the qualification as prove of their competency in English, even though the practice boards accept this same qualification as meeting the standards for admission to practise. The evidence disallowed or required to prove the English language capability both for Australian visas and to enter into the professions thus belies the stated purposes of the English language requirements. English is a global language that is spoken by different nationalities in different parts of the world. Therefore, taking a blanket approach that proficient speakers of English originate in the nations that are exempt from the English language requirements ignores the reality of English language usage. In these circumstances, the English language would seem a disguised legal and policy tool for gatekeeping, exclusion and nationality-based discrimination. The deliberate denial of the English language abilities of certain migrants and the stipulation of absurd and inexplicable evidentiary requirements as proof of the English language competency deprive such migrants of opportunity to enter into professions of their choice, ridicule and expose them to exploitation and modern slavery contrary to Australian values and legislation on equality and fair play.