Sukhdeep Kaur’s home in Melbourne’s north-west is almost empty. 

Most of the kitchen cupboards are bare, and her clothes are folded into suitcases.

At 48 years old, she’s preparing for the worst — deportation.

But she doesn’t know what to do about the dog.

The six-year-old black pug-cross, Tuffy, leans against her legs when she sits down to rest and falls asleep at her feet. 

“We can’t afford to bring him back to India with us,” Ms Kaur said.

Ms Kaur arrived in Australia with her family in 2015 on a temporary work visa as a cook, a job on the short-term skilled occupation list, by a company called Bracken Gem at the Richmond Hill Hotel.

But things quickly unravelled.

In 2018, Australian Border Force sanctioned Bracken Gem for breaching sponsorship obligations. The ABC understands the sanctions were related to Ms Kaur and another worker being underpaid and the business failing to provide records.

The sanctions meant the business was barred for three years from sponsoring migrant workers. And Ms Kaur’s visa was automatically cancelled.

The business had also failed to properly nominate Ms Kaur for permanent residency.

The Administrative Appeals Tribunal (AAT) upheld the cancellation and, since then, Ms Kaur and her husband Jaswinder Singh lived in limbo, renewing a bridging visa every few months while they awaited ministerial intervention.

In their application to the Home Affairs minister, the couple submitted four letters of support from state and federal local politicians and a letter from another former employer.

Ms Kaur had been waiting for a decision on her ministerial intervention request for over a year. 

Last week, a letter from the Home Affairs department said Ms Kaur’s plea for permanent residency had failed. 

The Department of Home Affairs told the ABC it could not respond to questions about Ms Kaur’s case specifically.

Permanent residency application a ‘perverse feature’ of migration system: lawyer

Under Australia’s migration regulations, an applicant for a permanent residency visa must be nominated by the business that sponsored them, they cannot do it themselves.

Human rights lawyer Sanmati Verma said this established an imbalance of power and could put workers at risk of exploitation.

“Sponsored workers shouldn’t be tied to their employers in this way. It leads to a fundamental imbalance of power,” Ms Verma said.

Ms Verma said she did not believe there was a clear reason why the government tied a migrant’s permanent residency application to an employer.

“This is a perverse feature of our migration regime,” she said.

“Employers continue to hold that key and that’s a design feature of our migration regime we really need to address.

“Our migration system needs to be rebuilt with worker’s interests in mind because they’re the ones that are here, they’re the ones that do all the work, they’re the ones that we rely upon.”

Accommodation, food services top industries for FWO disputes from migrant workers

In 2019, the federal government’s migrant workers taskforce published its final report, saying “the underpayment and exploitation” of temporary visa holders was “a significant problem”.

The Fair Work Ombudsman’s (FWO) 2022-23 annual report said migrant workers made up around 7 per cent of Australia’s workforce but accounted for 17 per cent of formal disputes and 19.5 per cent of all anonymous reports.

The most common industry the FWO helped lodge a dispute on behalf of migrant workers was accommodation and food services.

In response, the federal government repealed section 235 of the Migration Act in July. The change meant it was no longer an offence for a visa holder to breach work conditions — a change that meant to encourage people to report migrant worker exploitation.

It also introduced a two-year trial of the Workplace Justice Visa, allowing migrant workers to stay and work in Australia for up to a year while they pursue a workplace claim.

Because Ms Kaur’s application for permanent residency was refused by the department and the AAT, she is ineligible for a justice visa. At the time, she did not know the FWO existed to be able to lodge a claim.

“We are hard workers,” Ms Kaur said. “Why are we treated like criminals, like prisoners?”

Barbara Nixon, the former employer who has written to the minister on Ms Kaur’s behalf, employed both Ms Kaur and her husband at her Sunbury winery.

Ms Nixon said Ms Kaur had been “a valued member of staff who is well-liked and respected” and was “efficient and well-organised”.

“She was such a good and honest worker and very much loved and enjoyed by other staff,” Ms Nixon said.

Ms Nixon said she could not offer the couple sponsorship because she couldn’t provide them with enough hours.

“They are the kind of people that we want here and [Ms Kaur] was always so honest and humble,” Ms Nixon said.

Ms Kaur said she tried desperately to find someone else to sponsor her within the 60-days — as required by the government — but struggled to find someone who would offer her ongoing, stable work.

Ms Kaur was also about to turn 45 – limiting her visa options.

The cost of speaking up

Thomas Costa from Unions NSW said despite the measures taken by the government, many migrant workers remained hesitant to report mistreatment, fearing that complaining could jeopardise their shot at permanent residency.

“People are upset about how they’re being treated, but they hold off from lodging any claim until they get permanent residency. It’s the sunk cost — they’ve often been underpaid for years. Why would they risk all that?” Mr Costa said.

Migrants usually have to work for the same employer for two to three years before being eligible for permanent residency. If they apply for protection under the new system, they need to find a new employer to sponsor them and start the process from scratch.

Ms Verma echoed Mr Costa’s concerns and said that while the new visa was a step in the right direction, it did not change the core issue: employers still control the pathway to permanent residency.

“If your livelihood depends on your employer, your ability to demand what you’re owed is absolutely zero,” Ms Verma said.

‘We came here with dreams’

Since Ms Kaur’s bid for permanent residency was denied, she has been transitioned to a tourist visa, with work rights, that will expire in April 2025.

Ms Kaur has been advised by her lawyer that the only way she can remain in Australia is through a parent visa.

The government only grants 8,500 parent visas a year. Last year there were almost 150,000 people on the waiting list.

A permanent parent visa costs about $50,000 and Ms Kaur would need to be out of the country while her application was assessed.

“[We] wanted to buy another dog so Tuffy had a companion, now we don’t know what we will do with her. There’s a lot of fear,” she said.

“We love it here, we came here with dreams. That’s why we worked hard.”