‘Immigration status’ is not a term formally defined in law, but it is commonly used to describe a person’s visa status, including whether they have a valid visa or not, and whether their permission to remain in Australia is temporary or permanent. As a legal category, visa status determines the conditions to which non-citizens are subject to while residing in Australia, including access to work rights and services.

Research shows that discrimination on the basis of immigration status is widespread. Despite this, immigration status is not recognised as a protected attribute under federal or state anti-discrimination law, with the Australian Capital Territory being the sole exception. Existing protections based on race, national origin and national extraction do not adequately capture visa-based discrimination, and claims under these grounds are conceptually and evidentially difficult to establish. This brief analyses gaps in the current legal framework and sets out recommendations for reform. 

Key findings

• In a survey of more than 1,200 migrant workers, 39% reported being denied job opportunities because of their visa type, and 37% had been paid or offered a lower salary on this basis. 
• 43% of international students reported wage discrimination linked to their visa type. 
• Many employers conflate permanent residency with work rights and refuse to consider temporary visa-holders. 
• This pushes international students and skilled workers into insecure, lower-paid or informal work, where exploitation is more likely. 

Recommendations 

1. Incorporate immigration status as a standalone protected attribute under state and territory anti-discrimination law, subject to appropriate statutory exceptions. 
2. Amend sections 772(1)(f) and 351 of the Fair Work Act 2009 (Cth) to include immigration status as an additional ground.