A man kept for 16 months in 'conditions akin to slavery' in a Sydney restaurant has been awarded $186,000 in unpaid wages. But why is his 'employer' the only person successfully convicted of a labour trafficking charge in Australia for orchestrating this 457 visa scam?
Dulu Ram left his wife and two children in India to travel to Australia to begin work as a cook in a restaurant in Eastwood in Sydney in August 2007.
He spent the next 16 months working 12-hour days in the restaurant. He had just one day off in all that time – Christmas Day, when the restaurant was closed. He slept on a mattress in the dry storeroom, and bathed using water from a bucket.
As far as the Department of Immigration was concerned, this was a legitimate work contract facilitated through a 457 visa. But Mr Ram was kept as a slave.
“Mr Ram was effectively held against his will, he was held as a chattel basically. He was a thing which was under the control and possession of his employer... He was trapped,” says David Hillard, Pro Bono Partner with Clayton Utz, the firm which represented Mr Ram in court.
“And while that trafficking debt and the threats associated with it hung over his head, there was really nowhere for him to go. He was horrendously exploited."
Mr Ram had no access to his passport - this was later discovered at his 'employer' Divye Trivedi's home in a police search, and he believed he could not leave the restaurant until the cost of bringing him to Australia had been repaid.
“And while that trafficking debt and the threats associated with it hung over his head, there was really nowhere for him to go. He was horrendously exploited in a way that Australian law just does not permit for anyone,” says Mr Hillard.
Mr Ram was functionally illiterate and could not speak English. Despite a site visit by Department of Immigration officials to the restaurant, Mr Ram’s plight went unnoticed – he had said only what he'd been told to say.
Mr Ram finally found the courage to leave 16 months later. He explained this decision in evidence given in court: “When you put too much water in a glass, it spills over.”
He made his way, with the assistance of a co-worker, to the local police station and the Australian Federal Police (AFP) took up his case.
Mr Ram's lawyers say what makes this case unlike so many others is that there was a clear avenue available in order to pursue charges against Mr Trivedi and to seek a financial remedy.
“For many people who are trafficked into Australia it’s not apparently clear as to who the defendant would be in those proceedings. Often there are shadowy figures somewhere overseas who’ve arranged and organised the trafficking situation,” says Mr Hillard.
Mr Ram had signed a formal employment contract outlining a $42 000 base wage. It was drafted by his 'employer', restaurant owner Mr Trivedi, in order to scam the 457 skilled employment visa program.
'This points to a failure of public administration and raises questions about the integrity of the class 457 visa programme.'
In the 16 months that Mr Ram worked non-stop 12-hour days, payments totalling less than $7 000 had been made to his wife in India.
Last Friday, Judge Rolf Driver handed down the Federal Circuit Court decision in an unpaid wages case against Mr Trivedi.
Judge Driver found 'Mr Ram was kept by his employer in conditions akin to slavery' and ordered payment of $186 000.
This figure is made up entirely from calculations of hours worked, overtime, leave entitlements and superannuation payments owed – and interest on that amount. It does not include any compensation for the ordeal suffered.
“Bringing it within the Fair Work arrangements presented in one way a much more straightforward and attractive way of obtaining some money for what Mr Ram had been through,” says Mr Hillard.
In his judgement, Judge Driver criticised government failure to recognise the exploitation: 'When the Department of Immigration eventually investigated his circumstances, its officials were fobbed off with lies and fabricated documents. It was only when Mr Ram escaped and went to the police that action was taken. This points to a failure of public administration and raises questions about the integrity of the class 457 visa program.'
Mr Ram is now living in Australia with his family, after a witness protection visa allowed him to stay in Australia in order to give evidence against his former employer.
Mr Trivedi's 2011 conviction, after he plead guilty, makes him the only person to date to have been successfully convicted of a labour trafficking charge in Australia.
While the Indian restaurant in Earlwood has since closed, how confident can we be there aren't other hundreds of other cases happening right now around Australia?
Slavery in our communities
In the decade since the AFP's human trafficking unit was established in 2004, it has investigated 558 cases of human trafficking, slavery and slave-like conditions.
There have been 17 successful convictions.
John Tanti, AFP's Acting Manager of Crime Operations, says Mr Ram's case is not unique but a major challenge the AFP faces in securing convictions is the reluctance of people who've endured slave-like conditions to be involved in criminal prosecutions.
“And they can't be compelled to be made to be a witness for the prosecution and in fact there's a whole run of sensitivities about exacerbating some of their health and wellbeing by causing them to be involved in the prosecution,” says Mr Tanti.
“I'm not confident that 558 is all. I'm confident that we're in the ball park.”
“In some of those recent cases none of the farm workers were interested in proceeding with, assisting with a prosecution process. So immediately there was no capacity to pursue a trafficking charge.”
There are also other challenges in securing convictions.
“One case that comes immediately to mind that we very recently dealt with failed to win the support by the Commonwealth prosecutors because the victim had agreed to the terms of his exploitation prior to coming to Australia,” says Mr Tanti
“I'm not confident that 558 is all. I'm confident that we're in the ball park.”
Professor Jennifer Burn, Director of Anti-Slavery Australia, believes there's significant underreporting of cases.
“We know that it’s really difficult to estimate the number of people who are experiencing these kinds of crimes and human rights abuses because trafficking and slavery are unlawful... they are clandestine activities.”
Anti-Slavery Australia works to prevent forced labour, human trafficking and new forms of slavery such as forced marriage.
“Unless there’s the law enforcement connection, a visa won’t be available and that’s an issue that’s considerable concern."
“Forced marriage is considered in international law to be a slavery-like offence. So the conditions of servile marriage or forced marriage are the conditions of slavery where there is such control exercised over a person’s life that there is no freedom,” says Professor Burn.
“Most of our cases reflect the national experience that most have been exploited in sexual exploitation, often with a debt contract – a debt bondage. There’s an increasing number of labour trafficking cases,” Professor Burn says.
A main issue for Anti-Slavery Australia is that specialist protection visas are only offered if there's an agreement to participate in a criminal investigation. This means many people don't have the option to remain in Australia.
“Unless there’s the law enforcement connection, a visa won’t be available and that’s an issue that’s of considerable concern, because some people have been trafficked or have been in forced labour and we don’t have a visa that will provide them with support,” says Professor Burn.
“The trafficking visa framework is currently being reviewed at the moment. We’ve certainly submitted that there should be a pathway for people who have been trafficked and enslaved and who can’t help the police but where there are compassionate circumstances.”
And beyond governmental responses, Professor Burn says there's a collective community responsibility to ensure this isn't happening around us.