Australian Institute of Criminology

Skip to content

Introduction

When I’m asked what makes someone vulnerable to trafficking, I talk about poverty, political instability, natural disasters, lack of education and employment opportunities…Then, when I’ve listed all these factors, I’ll say, ‘And there’s love as well’ (STOP THE TRAFFIK case worker cited in Hayes 2012: 300).

Human trafficking has been identified by the Australian Government as a serious crime and a breach of human rights (Parliament of the Commonwealth of Australia House of Representatives 2012). This report describes exploratory research undertaken by the AIC into an aspect of human trafficking that has recently been identified as requiring further consideration—the role of marriage and partner migration.

Defining the problem: What is human trafficking?

The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol), supplementing the United Nations Convention Against Transnational Organized Crime (also called the Palermo Convention) is the first and the primary international agreement to universally define and address the phenomenon of human trafficking (Bevan & Schloenhardt 2011). Article 3 of the Trafficking Protocol defines human trafficking as:

  • the recruitment, transportation, transfer, harbouring or receipt of persons (action);
  • by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person (means);
  • for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs (exploitative purpose; see Gallagher (2004) for a discussion of the defining characteristics of human trafficking).

For child victims of trafficking (ie those aged under 18 years), only an action and exploitative purpose must exist for trafficking to have occurred, since the age of the child makes the means element redundant to proving the crime.

Australia’s legislative framework relating to human trafficking and human trafficking involving marriage is outlined in Box 1.

Terminology

The terms ‘trafficking in persons’, ‘people trafficking’ and ‘human trafficking’ are used interchangeably in the relevant literature to refer to the United Nations definition outlined above. Recently, the Australian Government made a determination that the terminology of ‘human trafficking, slavery, and slavery-like practices’ should be used in order to capture the spectrum of offences related to human trafficking (AGICHTS forthcoming). This report similarly uses this terminology since it adopted a broad definition of human trafficking and sought to explore related offences, as well as the ‘breeding ground’ of human trafficking (David 2010: 45; see Methodology). However, as indicated by the definition above, human trafficking and slavery are distinct offences that intersect when the exploitative purpose of human trafficking is to enslave the victim. Therefore, a person can be subjected to conditions of slavery without having been trafficked. This report only examines cases where a person has been trafficked into a situation where they have been subjected to various forms of exploitation that meet the international definition.

Box 1 Legal frameworks

Australia became a signatory to the United Nations Trafficking Protocol on 11 December 2002 and passed legislative amendments to the Criminal Code 1995 (Cth) that culminated in Australia’s ratification of the Trafficking Protocol on 14 September 2005. Although previous amendments in 1999 and 2002 criminalised a number of offences relating to human trafficking and slavery, the 2005 amendments provide for a specific legislative framework for combating human trafficking and debt bondage (David 2010; Debeljak et al. 2009; OSCE 2008; ICCLR 2011).

The Criminal Code 1995 (Cth)

In Australia, human trafficking, slavery and slavery-like offences are prohibited under Divisions 270 and 271 of the Criminal Code 1995 (Cth).

Division 270 of the Criminal Code criminalises slavery, which is defined as the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. Slavery-like practices, including servitude, forced labour and deceptive recruiting are also criminalised in Division 270. These offences can apply to the exploitation of a person’s labour or services in any industry, or to exploitation within intimate relationships. Forced marriage is also considered a slavery-like practice and is criminalised under Division 270. The forced marriage offences apply where one or both parties do not fully and freely consent to the marriage because of coercion, threat or deception. For the offence of slavery (s 270.3), Australian courts have jurisdiction over an offence irrespective of whether the perpetrator was within or outside Australian territory at the time the offences were committed. The slavery-like offences in Division 270 have extended geographic jurisdiction and can apply where the conduct occurred in Australia, or where the conduct occurred outside Australia but the offender was an Australian company, citizen or resident. None of the offences in Division 270 require the victim to be subject to an element of movement.

Division 271 of the Criminal Code contains specific offences for human trafficking, fulfilling Australia’s obligations under the United Nations Trafficking Protocol. Division 271 provides for:

  • human trafficking offences that criminalise organising or facilitating the transportation of the victim into, out of, or within Australia, using coercion, threat or deception, or by being reckless as to the exploitation of the victim;
  • child trafficking offences that criminalise organising or facilitating the transportation of a child into, out of, or within Australia, intending or recklessness as to whether the child will be used to provide sexual services or will be otherwise exploited;
  • organ trafficking offences that criminalise organising or facilitating the transportation of the victim into, out of, or within Australia, reckless as to whether the victim’s organ will be removed;
  • an offence of harbouring a victim that criminalises harbouring, receiving or concealing a victim to assist or further the purpose of another person’s slavery, slavery-like or human trafficking offence; and,
  • an offence of debt bondage, to prevent offenders from using unfair debt contracts or other similar arrangements to force victims into providing services to pay off large debts.

In 2013, the Australian Parliament passed the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Slavery Act) amending the Criminal Code. Key amendments to the Criminal Code made by the Slavery Act include:

  • the introduction of new offences of forced marriage and harbouring a victim, and standalone offences of forced labour and organ trafficking;
  • the expansion of the definition of exploitation to include a range of slaverylike practices;
  • amendments to existing definitions to capture more subtle forms of coercion, including psychological oppression, the abuse of power or a person’s vulnerability;
  • the expansion of the existing offences of sexual servitude and deceptive recruiting for sexual services to apply to all forms of servitude and deceptive recruiting, regardless of industry;
  • amendments to ensure the slavery offences apply to conduct that reduces a person to slavery, as well as conduct involving a person who is already a slave;
  • an increase to the penalties applicable to the debt bondage offences to ensure they adequately reflect the seriousness of enforcing an unfair debt contract; and
  • the insertion of provisions to allow a judge or jury to consider factors such as the economic relationship between the victim and the offender, and the personal circumstances of the victim, in determining whether the victim was coerced, threated or deceived, consented to organ removal, or entered into debt bondage.

The Slavery Act also amended the Crimes Act 1914 to improve the availability of reparation orders to individual victims of Commonwealth offences, including human trafficking and slavery.

Application to forced marriage

The Slavery Act defines a forced marriage as a marriage that is not freely and fully consented to because of the use of coercion, threat or deception. A person can be coerced through obvious means such as force, detention or duress, or through more subtle means like psychological oppression, abuse of power or taking advantage of the person’s vulnerability. The offences apply to a range of marriage and marriage-like relationships, including registered relationships and those formed by cultural and religious ceremonies. The offences also apply to both onshore and offshore marriages (ie marriages solemnised within Australia as well as those solemnised outside of Australia that involve Australian citizens). The new offences relate to adults, as well as minors, who are forced into marriage by either their prospective spouse or another person, such as a parent (Australian Human Rights Commission 2012; Gartrell 2011).

The Criminal Code captures causing a person to enter into a forced marriage, as well as being a party to a forced marriage. The latter offence only applies where the person is not a victim of the forced marriage and does not have a reasonable excuse. The offences can therefore apply to any person with a role in bringing about the forced marriage, including families, friends, wedding planners or marriage celebrants.

The forced marriage offences carry a maximum penalty of four years’ imprisonment, or seven years’ imprisonment for an aggravated offence. An offence may be aggravated in several circumstances, including where the victim is under the age of 18 years.

Arranged marriages are not captured by these offences. While an arranged marriage involves the spouse being chosen by a third party or family member, it requires the full and free consent of both parties, who have the right to accept or refuse the marriage arrangement. Servile marriage (where a person is sold or inherited), or circumstances where a spouse is subjected to ongoing exploitation within the relationship are also not captured by the forced marriage offences, but are separate crimes akin to slavery.

In addition to the human trafficking and slavery legislation, the Marriage Act 1961 (Cth) describes offences related to marriages obtained by duress, and the Migration Act 1958 (Cth) that describes offences relating to sham or contrived marriages. Several international instruments also provide specific protections against forced and servile marriage. These include the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956, the Universal Declaration of Human Rights 1948, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 1964, the International Covenant on Civil and Political Rights 1968, the Convention on the Elimination of All Forms of Discrimination Against Women 1979, the Convention on the Rights of the Child 1999, as well as other international documents such as the Beijing Platform for Action 1995 (Stepnitz 2009).

The relevance of marriage to human trafficking

The term marriage is used throughout this report for convenience; however, the issues that are raised may apply to other intimate partner relationships, including de facto relationships, same sex partnerships and engagements.

Humans are known to be trafficked for a wide range of exploitative purposes (eg sexual exploitation, labour exploitation, domestic servitude; David 2010, 2008) and via a wide range of means (eg force, coercion, deception, abuse of power; David 2010). The recent focus on how marriage and other intimate relationships may be involved in the trafficking of persons reflects growing concern regarding the recruitment, deception and exploitation of humans in new and emerging ways (Immigration and Naturalization Service 1999; Stepnitz 2009). While various modern forms of human trafficking, exploitation and slavery have been identified in many countries including Australia, forced labour and exploitation in the sex industry are most commonly examined in academic studies and research (Cullen & McSherry 2009; David 2010, 2008; Ming Zhao 2003). This is most likely due to the difficulty of detecting forms of human trafficking that occur in the private sphere (ACRATH 2011; GAATW nd; Ray 2006; Stepnitz 2009).

Broadly, there are two ways in which marriage and partner migration relate to human trafficking. First, forced marriages and servile marriages are considered slavery-like practices and therefore may comprise the ‘exploitation’ element of the definition of human trafficking. Second, partner migration can be used as a vehicle to recruit individuals for exploitation that amounts to human trafficking. In these instances, marriages may comprise the ‘action’ element of human trafficking. For example, a marriage visa (Partner or Prospective Marriage visa) may be used by traffickers to bring a person to Australia for exploitation (such as domestic servitude, forced labour or commercial sexual exploitation).

While forced marriage has been the focus of some academic (Burn et al. 2012; Quek 2012) and government (AGD 2010; Parliament of the Commonwealth of Australia House of Representatives 2012) attention, this study reveals that partner migration has been used as a method of recruiting or receiving women into Australia, by means of deceiving the women about the nature of the marriage for the purpose of exploiting them as domestic servants, to provide private or commercial sexual services and/or to be exploited in the home as wives. This form of human trafficking is the focus of this report and is examined in detail in the following sections.

Why research the role of marriage in human trafficking?

While the human trafficking literature has predominantly focused on labour trafficking and the trafficking of women and children into the sex industry (David 2010, 2008; Cullen & McSherry 2009), recently the role of marriage and partner migration has been raised as an important issue to consider and one requiring further research (AGD 2010; AIC 2012; ICCLR 2011; Joudo Larsen et al. 2012; Schloenhardt & Jolly 2010). Research undertaken outside of Australia has demonstrated that marriage and partner migration has been used to facilitate human trafficking into the United States (Hughes, Chon & Ellerman 2007), Europe (Surtees 2008) and Asia (Dinan 2002).

A search of the United Nations Office on Drugs and Crime’s (UNODC) international human trafficking case law database (http://www.unodc.org/cld/index.jspx) also reveals that intimate partner relationships have been used to traffic women and girls into other Western destination countries (see Box 2).

Box 2 International case studies

In the case of United States v Francisco Cortes-Meza and Juan Cortes-Meza, the defendants and a number of other men recruited teenage girls with limited education from rural parts of Mexico to enter the United States, ostensibly to earn money and enjoy a better standard of living. In some cases, the men enticed the girls by ‘acting as if romantically interested in them or promising marriage’ (United States v Francisco Cortes-Meza and Juan Cortes-Meza: 1). Upon arrival in the United States through illegal means, the girls were forced to work as prostitutes to repay the costs of entering the country. The girls were monitored during the day and subjected to physical violence if they refused to obey.

In the case of R v Prasert Decha-Iamsakun, a Thai national brought a Thai woman to Auckland, New Zealand ‘under the pretence of being his wife’ (R v Prasert Decha-lamsakun 1993 1 NZLR 141). The victim’s passport was confiscated and she was sent to work in a massage parlour and then a bar. Most of the victim’s earnings were confiscated and the defendant offered to sell the victim to the owner of the bar, who notified authorities (R v Prasert Decha-lamsakun 1993 1 NZLR 141)

Other relevant cases include United States v Lynda Dieu Phan, Justin Phan & Duc Cao Ngyen, United States v Louisa Satia Criminal Case no. 00 590, R v Ng 2007 BCPC 0204.

While no research has been undertaken on the role of partner migration in human trafficking to Australia until now, the issue has been raised in a range of forums. For example, the serious exploitation of migrant spouses and fiancés was raised as an issue of concern at a series of human trafficking information sessions held by the AIC in both metropolitan and regional locations around Australia in 2011. Similar concerns have been raised in the media and demonstrated through a small number of legal proceedings that show that Australia’s Partner visa system has been misused for the purpose of human trafficking or related exploitative scenarios (see Box 3). Although R v Kovacs is the only case prosecuted using slavery and human trafficking legislation under the Criminal Code 1995 (Cth), these cases nonetheless demonstrate how marriage and partner migration can be misused to enable the trafficking of humans and similar exploitative scenarios to occur in Australia.

Box 3 Australian case studies

In a case reported in the Australian media, a 24 year old woman moved from India to Canberra to enter into a marriage arranged by her parents after spending about one week with her fiancé, ‘all the time closely chaperoned by his parents’ (Hand 2010: 13). The woman arrived in Australia on a Prospective Marriage visa and was married within two months. Once married, the woman discovered that her husband ‘was not the man she thought he was and his parents, with whom they were living, turned on her’ (Hand 2010: 13). She became a victim of domestic violence and reported that she ‘was kept in the dark and used as a slave’ (cited in Hand 2010: 13).

R v Kovacs

The case of R v Kovacs [2008] QCA 417 is frequently cited in the human trafficking literature (David 2010; Schloenhardt & Jolly 2010; APTIC 2009) and is usually considered a case of labour trafficking (David 2010). As Schloenhardt and Jolly (2010: 671–672) argue, however, R v Kovacs also highlights ‘how the institution of marriage can be used to facilitate [human trafficking]’.

In R v Kovacs, heard in the Supreme Court of Queensland, the Crown alleged that Zoltan and Melita Kovacs arranged and paid for an Australian citizen to travel to the Philippines to marry a woman with the intention of bringing her to Australia to work in their takeaway shop and in their residence as a child minder and domestic helper. Once in Australia, the woman worked in the shop for 12 hours each day for five and a half days per week. For this she received very little pay. When not working, she was required to provide child care for three small children and perform household duties (APTIC 2009). She tried to escape her situation, but was effectively enslaved by the Kovacs through ‘a combination of unpaid labour, continuing sexual assaults, verbal threats and abuse, exploitation of her situation of vulnerability, control over her movement and confiscation of her passport’ (David 2010: 19). Following a retrial in the Supreme Court in 2010, Zoltan and Melita Kovacs were found guilty of slavery offences under s 270.3(1) of the Criminal Code 1995 (Cth) (APTIC 2011), and were sentenced to four and eight years of imprisonment, respectively (Schloenhardt & Jolly 2010).

R v Foad Ali Solaiman

In the case of R v Foad Ali Solaiman [2008] NSWDC 53, a 20 year old Egyptian woman was brought to Australia following an arranged marriage in her home country to an Egyptian-born Australian citizen. The man and woman did not know each other prior to the marriage. The woman had never travelled outside of Egypt, could not speak English and had no family, friends or contacts in Australia. By virtue of Islamic law and customs in Egypt, the victim considered herself bound to obey her husband. Within two weeks of her arrival in Australia, the husband ‘made arrangements for her work and to be recruited into the services of a brothel’ (R v Foad Ali Solaiman [2008] NSWDC 53). The victim stated her opposition to the work and expressed her fear of being arrested by the police as prostitution is illegal in Egypt; however, it was alleged that he forced her to work at the brothel for a period of nearly two years to repay the cost of her visa. She ‘continued to work in the brothel in response to physical threats her husband made against her, and her fear that she would be deported to her home country where she would face Islamic law’ (David 2008: 6). The offender, who had sponsored her travel to Australia, also kept her passport and Medicare card. She was made to give her earnings to her husband and did not have access to bank accounts or ATM card to access the money. The judge conceded ‘she did not have those funds for her own use but rather they seem to be for either the offender’s use or for onward transmission to his family in Egypt’ (R v Foad Ali Solaiman [2008] NSWDC 53). The offender was convicted of procuring the victim, by threat, for the purposes of prostitution, but was acquitted of causing the victim to remain in sexual servitude and intending to cause, or was reckless as to causing, that sexual servitude. He was sentenced to three years imprisonment.

Columbia & Columbia

Although the case of Columbia & Columbia [2009] FamCA 311 was dealt with as a custody matter in the Family Court, it raises concerns relevant to human trafficking. Mr Columbia travelled to Thailand where he met his sixth wife. Once in Australia, Ms Columbia was forced to carry out a ‘tremendous amount of labouring work’ in their market garden due to her husband’s immense size and immobility (Columbia & Columbia [2009] FamCA 311). For this she was given $40 to $50 a month. Ms Columbia also carried out ‘onerous, personal and perhaps somewhat disgusting tasks’ relating to his physical care (Columbia & Columbia [2009] FamCA 311). There was also evidence of violence perpetrated upon their children by Mr Columbia and of verbal violence towards Ms Columbia (Columbia & Columbia [2009] FamCA 311).

Yap & MIMIA

In the case of Yap & MIMA [Minister for Immigration and Multicultural Affairs] [2006] AATA 510, Mr Yap, an Australian citizen, appealed to the Administrative Appeals Tribunals of Australia after his fiancée, a Thai national, was refused a visa to enter Australia after being deemed to be of ‘bad character’. Mr Yap’s fiancée had previously lived in Australia and worked in the sex industry in Sydney and Melbourne. Initially, she had voluntarily entered Australia to work in the sex industry, but once in Australia, found herself in a position of debt-bondage, under which she was ‘enslaved to a number of sinister people who withheld her passport, kept her detained and exploited her for their financial gain’ (Yap & MIMA [2006] AATA 510). Mr Yap’s fiancée was deemed to be of ‘bad character’ as she had entered Australia ‘by making false declarations and upon a false premise’. Part of this false premise involved a sham relationship with a Singaporean man, which Mr Yap’s fiancée had been instructed by her ‘travel agents’ (known as Mr Tik and Aa) in Bangkok, would improve her chances of gaining entry to Australia (Yap & MIMA [2006] AATA 510). In her evidence, Mr Yap’s fiancée stated:

Aa arranged for a Singaporean man to be included on my visa application as my boyfriend. I was told by Mr Tik that if it was said on my application that I had a Singaporean boyfriend it would assist grant of my visa. About two to three weeks before lodging my application, I travelled to Singapore for a holiday. I was told…this man’s name was Stewart Tan. We spoke together on a number of occasions to prepare for any questions we may be asked about my application. I first met the Singaporean man in Bangkok after I had known Mr Tik and Aa for a short time. We talked about our interests and personal details and took photos to give with the visa application (Yap & MIMA [2006] AATA 510).

For reasons that are not made clear in Yap & MIMA, Mr Yap’s fiancée was accompanied by a Thai man, not her sham boyfriend Stewart Tan, when she travelled to Australia. It is unclear from the transcript of this case how the fabrication of a Singaporean boyfriend may have assisted her application to enter Australia. Nonetheless, this case again highlights an attempt to use an intimate partnership to facilitate what ultimately appears to be a case of human trafficking.

Research on violence against migrant spouses

Finally, the broader literature on violence against migrant spouses, particularly those without permanent residency, suggests that the topic of human trafficking involving partner migration is an important area to research. While the literature generally identifies violence against migrant spouses as a gendered phenomenon, it should be recognised that men may also be victim/survivors.

Research has demonstrated that women who are sponsored to enter Australia as wives or prospective spouses are more likely to be at risk of violence, including lethal violence, than women who are Australian citizens or permanent residents (Constable 2003; Cunneen & Stubbs 2000; Iredale 1995; NCRVAWC 2009). Quek (2010: 2) argues that migrant wives are especially vulnerable because they are:

commonly placed in a position of dependency on their husbands due to their tenuous legal status once they have migrated, which usually requires the continuation and success of their marriage (see also Orloff & Sarangapani 2007).

Such circumstances:

create conditions in which women have little choice but to submit to the will of their husbands, and are made especially vulnerable to sexual and physical abuse, particularly if they should refuse men’s demands (Quek 2010: 2; see also Poljski 2011).

In Australia, research by Cunneen and Stubbs (2000) found that Filipino women were six times more likely to become the victims of homicide compared with all women in Australia. In documenting all known deaths or disappearances of Filipino women and their children in Australia over the 1980 to 1995 period, Cunneen and Stubbs (2000: 6) identified 27 cases of homicide, which they acknowledge is ‘likely to underestimate the total number of [suspicious] deaths of Filipino women’. In all but one of the cases for which information about the offence was available, homicides of Filipino women were committed by their intimate partner, who in almost all cases was an Australian male citizen (Cunneen & Stubbs 2000). In several of these cases, evidence showed that there had been escalating domestic violence perpetrated against the women in the period leading up to their death. Importantly, Cunneen and Stubbs’ (2000: 8) study highlighted that in many cases the perpetrators of these homicides had alleged histories of violence and abuse:

In two cases there was evidence that the man’s previous wife had sought legal protection due to his domestic violence. In another case, the man convicted of murder had also faced previous allegations of the attempted rape of two girls aged 13 and 14 years. In a further two case studies, the same suspect emerged in the deaths of two Filipino women. This suspect also has a de facto relationship with a third non-Filipino woman who had disappeared. His two children also alleged that he abused them. In two further cases, men in the study had previously been married to non-Filipino women who had died or disappeared in suspicious circumstances.

In another case, an Australian man with an outstanding domestic violence order by a previous wife and whose two children had been removed by child protection authorities had been able to sponsor and marry a young Filipina girl (Cunneen & Stubbs 2000).

Similarly, Quinn’s research (cited in Quinn 2009: 1–2) found that

between 80%–85% [n=403] of Russian speaking female settlers who came to Australia for romance [between January 1997 and January 2007] found themselves in violent relationships and/or in a position of exploitative domestic and/or sexual servitude.

Similar issues have also been identified in other Western countries such as the United States, where there have been ‘cases of women being abused and/or murdered after marrying a man they met through “marriage agency” correspondence’ (Hughes 2004: 50).

Instances such as these, in which partners migrate to Australia and experience violence at the hands of their Australian sponsor/partner are not in and of themselves human trafficking (Schloenhardt 2009b) and many such cases do not meet the United Nations’ definition of human trafficking. This broader context of violence against migrant spouses is nonetheless important to understand, as it forms part of the ‘breeding ground’ for human trafficking and related exploitation.

Research objectives

Within this context, the current research project sought to understand:

  • whether and how marriage and the Partner visa system are used for the trafficking and related exploitation of migrant women to Australia;
  • the risk factors that increase vulnerability to human trafficking for migrant women entering Australia under the Partner Migration program;
  • the protective factors that reduce vulnerability to human trafficking for migrant women moving to Australia under the Partner Migration program; and
  • possible implications this criminal activity has for Australia, including for prevention, detection, legislation, prosecution and victim services.

The findings are intended to assist relevant government and non-government agencies prevent, identify and respond to human trafficking involving partner migration by providing a preliminary insight into this crime.