Xiao 'made up a reason' to apply for asylum to 'buy more time' to work in Australia. He's not alone

Experts warn that the number of temporary residents claiming protection will increase due to the federal government's tightening conditions for other visa types.

Protection visas are being seen as an attractive way to 'buy more time' to work in Australia, say migration experts. Credit: Jason Edwards/Getty Images

Key Points

• Some migrant workers are applying for protection visas to extend employment in Australia, experts say.
• There is a concern that the visa might become more attractive following tightening of visa policies from 1 July.
• In 2022-2023, the top five countries for nationals seeking protection visas in Australia were India (12.45 per cent), China (8.5 per cent), Vietnam (6 per cent), Indonesia (5.7 per cent), and Malaysia (5.5 per cent).

Chinese 'Valentine's Day' on 20 May should have been a happy occasion for Xiao* and his wife.

Instead, he said the day was spent "worrying" about whether he would be forced to leave Australia.

The 34-year-old arrived from Malaysia in 2016 on a visitor visa, which subsequently expired.

He then spent three years without a visa, working on a remote farm in Victoria.

In 2019, after two colleagues were arrested by immigration officers for overstaying their visas, Xiao said his then-employer encouraged him to apply for a protection visa to obtain legal residency.

"As long as you submit the visa application, you will be safer," he reflects on the advice he was given at the time.

"They will not arrest you when the officials come to check."

Xiao then hired an Australian migration agent to help him "make up a reason" to submit a protection visa application.

His initial application was rejected and his appeal is now one out of a backlog of 40,683 asylum cases before the Administrative Appeals Tribunal (AAT) as of the end of May.

Arriving in Australia from Malaysia in 2016, Xiao* said he lodged a protection visa application in 2019 to make himself "safer". Source: SBS

Migration experts told SBS Chinese that it is common for non-genuine asylum seekers to lodge protection visa applications to "buy more time" to stay in Australia for work purposes.

However, these workers were likely "working in the shadows of society" and therefore vulnerable to labour exploitation and mistreatment, experts said.

Xiao said he was paid $13 an hour and sometimes worked 13-hour shifts.

He lived next to the farm he worked on, in a tiny, demountable building with another labourer for three years.

Abul Rizvi, former deputy secretary at the Department of Immigration, believes some migrant workers made illegitimate asylum claims because "they had no other choice", and may not have understood the parameters of the asylum application as it contained "dense English".

He said these elements have created "a large and growing cohort" of people in Australia who did not have savings or even the money to pay for flights to go home but couldn't get permanent residency.

"They're stuck in no man's land," he said.

Xiao* worked on a farm for three years, earning $13 an hour (stock image). Source: AAP

Following tightening restrictions on visa-hopping from July 1, visitor visa and temporary graduate visa holders will no longer be able to apply for student visas onshore.

Experts say these changes might funnel more people into making illegitimate asylum claims to access protection visas to extend their work opportunities here.

The increased limits on visitors applying for student visas onshore will narrow the range of options visitors have. For many, the only option of extending (their) stay with work rights will be asylum.

Abul Rizvi, former deputy secretary at the Department of Immigration

According to the department's data, there were 18,738 protection visas lodged onshore in the financial year 2022-23, up over 77 per cent on the previous financial year (10,564).

The lead source countries for these asylum applications were India (12.45 per cent), China (8.5 per cent), Vietnam (6 per cent), Indonesia (5.7 per cent) and Malaysia (5.5 per cent).

Although visitor visa holders signalled the largest portion of protection visa applicants, there had also been an increase in the portion of student visa holders applying for asylum compared to visitors, Rizvi said.

"In terms of application fees, an asylum application costs nothing compared to a student visa application," he said.

While a protection visa application costs just $45, international student visa application fees more than doubled from $710 to $1,600 from 1 July.

In addition, as the asylum backlog grew and processing times slowed, the attraction of applying for asylum had increased, Rizvi added.

The latest figures from the AAT show a backlog of over 40,000 asylum cases, with 95 per cent of these taking more than six years to finalise.

Sean Dong, senior lawyer and director at ProActive Legal in Melbourne, agreed that a protection visa provided another option for those who could not apply for a student visa onshore.

He explained that after applying, applicants were granted a bridging visa, allowing them to stay and work in Australia lawfully and get access to Medicare.

You need a lot of evidence if you want to be granted the protection visa ... But if you're trying to buy more time, you aren’t necessarily (going) to provide any documents.

Sean Dong, immigration lawyer

Migration lawyer Sean Dong said disingenuous protection claims were becoming popular because they were cheap and allowed the applicant to buy themselves more time to work in Australia. Credit: SBS Chinese

But he pointed out that it was becoming more difficult for tourists intending to work to later seek protection in Australia if they had not yet obtained their visitor visas.

Australia's visitor visa grant rate was 78.1 per cent in the final quarter of 2023, the latest data shows, down from 84.6 per cent in the same period in 2019 before the COVID-19 pandemic outbreak.

"People without strong financial resources are unlikely to get a 600 visa (visitor visa) unless agents help them to fabricate background documents," Dong said.

Dong warned migrant workers not to make fake claims to remain in Australia, particularly if they had the opportunity to build a legitimate case for permanent residency.

If you start it wrong, it will be much more difficult to correct these mistakes.

Sean Dong, immigration lawyer

Data shows only 13.6 per cent of protection visas were approved in the financial year 2022-23, with the rate even lower for applicants from China (8.4 per cent) or Malaysia (1.9 per cent).

A Department of Home Affairs spokesperson told SBS Chinese the government was taking action to remove incentives for non-genuine protection applications and increase visa-processing resources.

According to the department, most new protection visa applications are being decided almost eight times faster than in recent years, with those that didn't meet the required criteria being quickly refused.

Migration experts said it was challenging for the government to manage ineligible asylum because it took "enormous amounts of time and resources".

"There are too many of these claims and the government’s resources are very limited," Dong said.

Department of Home Affairs data estimated there were 69,900 people living in Australia unlawfully as of 30 June, 2023, but Rizvi said the number could be far higher.

Locating, detaining and removing unsuccessful asylum seekers in Australia is hard to do.

Abul Rizvi, former deputy secretary at the Department of Immigration

"Australia is a big country ... You just don't know where they might be and the ability to find them is very, very difficult," he added.

Xiao is now awaiting a hearing date from the AAT, but he said he anticipated the appeal would fail.

He said his next step was to appeal to the Federal Court to "buy himself a few more years", although he had no idea what the future held.

"I should have made the right choice to apply for a student visa when I had the opportunity," he said.

"I would tell everyone to never apply for a protection visa. There's no fall back once you (do)."

*Name changed to protect identity.