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Discussion of emerging themes

The following section provides a discussion of the key themes that emerged from the research. The structure of this section follows the chronology of the trafficking process, beginning with themes that emerged from the process of victim/survivors entering their exploitative situations, followed by themes that emerged throughout the period of exploitation and concluding with themes that emerged from victim/survivors’ experiences of seeking help and exiting their exploitative situations. Cultural influences are pervasive across the trafficked persons’ entire experience and are therefore discussed separately.

Do these experiences constitute human trafficking?

These qualitative data highlight the diversity of experiences of some of those women who migrate to Australia as fiancés and wives and are subsequently seriously exploited. The women who participated in this research came from a range of cultural backgrounds, age groups and economic and family circumstances. They met their future husbands in varied ways and revealed a diverse range of reasons for migrating to Australia as fiancés and wives of Australian men. The exploitation experienced by the women also varied considerably, as did their methods of exiting their marriages.

The implications of the women’s stories for preventing and responding to such cases will be considered in detail in the next section. First, it is important to consider whether these women’s experiences constitute human trafficking.

As outlined earlier in this report, the United Nations deems human trafficking to have occurred when an individual is recruited, transported, transferred, harboured or received, by means of the threat or use of force or other forms of coercion, for the purpose of exploitation. The experiences of many of the women who participated in this research meet this definition. Indeed, a number have received support from specialised services as victim/survivors of human trafficking.

Importantly, these women’s stories do not simply reflect instances of domestic violence against migrant women. While domestic violence against migrant women is clearly a serious issue (Quinn 2009; Taylor & Putt 2007) and can result in extreme harm including the death of the victim (Cunneen & Stubbs 2000), the current research contends that in some cases, the experiences of the victim/survivors constitute human trafficking. This is the case for two primary, interrelated reasons. First, the exploitation experienced by some of the women amounts to servitude, which is one of the exploitative purposes identified by the UN Trafficking Protocol and defined as a slavery-like offence under Australian law. ‘Servitude’ refers to practices that are not as severe or serious as slavery (Gallagher 2010), but that seriously limit the freedom and agency of the victim (see Division 270.4, Criminal Code 1995 (Cth).

As described in this section, women in this study variously reported being denied freedom of movement and liberty (eg being locked in their homes, escorted constantly whenever outside the home, having their passports confiscated), being forced to provide services (sexual, domestic and/or reproductive) to their husbands and their husbands’ families, and/or having few genuine opportunities to improve or escape their exploitative situations.

Second, it appears that in some cases at least, the perpetrators of these women’s exploitation had intended to deceive the women into migrating to Australia in order to seriously exploit them. This intention is a critical component of human trafficking offences—trafficking occurs ‘if the implicated individuals or entity intended that the action…would lead to one of the specified [ie exploitative] end results’ (Gallagher 2010: 34; italics in original). While victim/survivors of human trafficking undoubtedly experience numerous other crimes—

they are subjected to threats, to physical and sexual violence, or to being locked up; their passports are confiscated; they are forced to work without any payment (Bales 2005: 129)

—it is this link between the action and the intended exploitation that constitutes human trafficking.

As the then Special Rapporteur on Human Trafficking, Radhika Coomaraswamy (cited in Gallagher 2010: 25) puts it, ‘it is the combination of the coerced transport and the coerced end practice that makes trafficking a distinct violation from its component parts’. ‘Coercion’ here is an umbrella term that includes violence, threats and deceit (Gallagher 2010).

While this study cannot claim without doubt the connection between action and exploitative purpose in the victim/survivors’ experiences because alleged perpetrators were not interviewed for this study and the cases have not been tested in a court of law in Australia, the evidence provided by victim/survivors and the professionals familiar with the victim/survivors’ cases (and other similar cases), strongly suggests a link to human trafficking consistent with the international definition.

Consent in cases of human trafficking involving marriage

The UN Trafficking Protocol stipulates that consent on the part of a human trafficking victim is irrelevant where any of the means elements listed in the Protocol have been used (ie threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability or the giving or receiving of payments). Indeed, as Vijeyarasa (2010: 217) argues, ‘voluntariness is inherent in the majority of trafficking situations’ and understanding the process undertaken by victim/survivors to arrive at consent is therefore vital to understanding the drivers of human trafficking.

As suggested above, all women interviewed for this study had consented to their marriage and to moving to Australia to live with their partner. In most cases, however, the women were deceived about a range of important issues, including:

  • their husband’s character and occupation;
  • the husband’s financial circumstances;
  • the husband’s family;
  • their husband’s existing relationships with other women;
  • what would be expected of them in the relationship (eg whether working outside the home would be expected);
  • the conditions they would be living in; and/or
  • the nature of the relationship.

For example, one woman had not been informed that her husband was already in a genuine, long-term de facto relationship with another woman in Australia, that she would be living with 16 members of her husband’s extended family, or that she would have primary responsibility for the care of a number of young children and the household’s domestic chores. Representatives of NGOs interviewed for this research were aware of similar situations in which a human trafficking victim/survivor had married an Australian man who, unbeknownst to her, already had a partner. Similarly, another victim/survivor interviewed for this research was not made aware that her husband had existing relationships with other women in her ‘home country’. This woman was told by her husband that once in Australia, her husband would be ‘caring, loving and responsible for everything in our life’; in reality, however, this woman found she was ‘working full-time in a factory doing hard work all day and then [she] had to do the shopping, cooking, cleaning and personal care for [her husband]’ (victim/survivor). She revealed that she also ‘had to rake the backyard and cut the grass by hand’ (victim/survivor).

Another woman was deceived as to the nature of her husband’s occupation and character. While this man claimed to be a war veteran and to be working as a police officer, this woman discovered (as a result of her attempts to seek help for his mental health problems) that he had never served in the police or defence forces and had previously been convicted of impersonating a police officer. This woman explained how her husband’s occupation influenced her decision to migrate to Australia:

He told me he was a policeman and I thought about how to be secure for my family in a different country…He told me that we would have a normal life and that my daughter could study and I could work (victim/survivor).

Stakeholders provided similar examples that demonstrated how a woman can be deceptively recruited into marriage (see also Quinn 2009). Domestic violence service providers spoke of women being deceived and how they were made to believe:

they were coming to build a family life, with dreams of having a happy marriage, and under the understanding that the marriage was going to be a genuine relationship where they would be active participants and be treated according to what was agreed when they decided to marry, which was to be respected and to be happy, and be equal and have access to a social life. At the end they have not found that in the marriage when they came to Australia (service provider).

Another case worker explained that men:

marry the victim who is of the understanding that it is a genuine relationship and they will come to Australia and have a great life and have all the opportunities that Australia might offer, but when they get here it is none of what they were promised. It’s quite similar to any other kind of trafficking case; whether it’s a job or a marriage they are coerced into believing they are going to come into a certain type of life. There is deception there. So the woman comes here feeling she is going to have a genuine relationship and that she is going to have a family. Then she finds out the husband has another partner and the woman has to look after the family, the house, and do the cooking and cleaning and washing. They can’t leave. They can’t call their family (service provider).

Similarly, Dinan’s (2002: 1115) study of the trafficking of Thai women into the Japanese sex industry found that:

although coercion is central to [the United Nations definition] of trafficking, the process often appears voluntary in its initial stages, as persons agree to offers of lucrative jobs (or marriage offers) abroad, and the coercive nature of the arrangement is not fully apparent until after the destination is reached.

Ray (2006: 914) argues against the dichotomisation of human trafficking victims into ‘innocent victims’ and ‘those who consented’, and suggests that consent exists on a continuum. Like Dinan (2002), Ray (2006: 914) argues that while individuals may agree to migrate for work opportunities (and therefore ‘consent’ to being ‘recruited’), they may be unaware of the ‘exploitative conditions of the work and the brutal nature of the abuse’. Ray (2006: 914) concludes that

the situation on the ground demands that we respect the initial decisions of these women, and take their exploitation and abuse as the criteria for including them within the context of trafficking (see also Vijeyarasa 2010).

This study similarly asserts that although the victim/survivors interviewed ‘consented’ to their exploitative marriages, some should be considered victim/survivors of human trafficking due to the deception of the women about the marriages they were to enter into and the extreme nature of the exploitation experienced by some victim/survivors.

Further, Vijeyarasa (2010: 217) argues for a new approach to human trafficking remedies that views the relationship between victim and offender as similar to a housing or labour contract:

When one enters into a contract to buy a house, or (to better parallel the nature of human trafficking) a labour contract to provide services as a waitress or construction worker, the contract may be rendered void if the conditions of work are misrepresented or if the potential employee is deceived as to the nature of the object of the contract. While the agreement may have initially [original emphasis] been entered into voluntarily, the individual may be recognised as a victim of fraud or deception and entitled to compensation in some circumstances…trafficking should be analysed from a similar lens.

Entering the exploitative situation

Drivers of marriage migration

An important finding of this research is that there are diverse drivers of marriage migration that include economic, personal, societal, cultural, political and familial motivating factors. Understanding these drivers more carefully (including through further research) can help to inform and develop preventative measures to combat human trafficking. Commonly, disparate economic contexts between the source and destination countries contribute to a trafficker’s decision to target a particular victim (or group of victims) as well as a victim’s proactive migration.

As Gallagher (2004: 9) has argued, ‘trafficking, like all other forms of irregular and/or exploitative migration, generally involves movement from poorer countries to relatively wealthier ones’. Similarly, in the context of marriage migration, migrant brides are often depicted as ‘marrying out of economic desperation’ (Constable 2003: 64). The perception that economic factors largely underpin a bride’s decision to migrate for marriage was held by many stakeholders that were interviewed for this study.

A key finding of this study, however, is that women’s decisions and motivations to migrate for marriage are far more complex, multi-faceted and serendipitous than this perspective allows (for general background, see Constable 2003).

Many of the eight women who participated in the research were educated and employed, and in two instances, the women were seemingly targeted for their wealth or ability to work outside the home and earn an income for their husbands. Others identified corruption, war and the difficulty of succeeding in their home country as influencing their decisions to migrate. Importantly, none of the migrant women in this study stated a desire to migrate to Australia specifically. In fact, most did not have a desire to emigrate at all. Further, few of the other women interviewed for this study had specifically sought to find a spouse.

Findings from the current research reflect prior studies that highlight the diverse reasons for victim/survivors of human trafficking and related exploitation to migrate. Constable (2006) also identifies non-material factors, such as the desire to be married, love, compatibility and family expectations, as motivating women to seek foreign marriage partners. In these instances, vulnerability can arise from the emotional nature of the relationships and interactions. Surtees (2007: 40) found that:

while many victims originated from ‘poor’ and ‘very poor’ economic backgrounds, a striking number of victims also originated from ‘average’ or ‘well-off’ families. Similarly, while many victims of human trafficking have low education levels, these were often consistent with educational levels in the population at large and a small number of victims from countries like Ukraine, Moldova, Romania and Bulgaria also had university and college education.

This is not to say that economic disparities between developing and developed countries do not influence women’s decisions to migrate, but rather it suggests that their decision-making processes are more complex than this. Further, it is not only economic disparities that influence a person’s decision to migrate but living conditions closely tied to economic situations, for example war, civil unrest, lack of educational opportunities and gendered opportunities. McSherry and Kneebone (2008: 71) found, for example, that:

many trafficked women…are living in countries where law and order and the authority of central government have broken down so that conditions are ripe for their exploitation.

In addition, while family conflicts have been observed as a common reason for human trafficking victims to leave their country (Omer Demir 2010), few of the women who participated in this study had family members that were not supportive or encouraging of their decision to migrate to live with their partner. Several marriages were arranged by parents or relatives that had chosen a spouse for their daughter, or who encouraged a relationship formed through family connections.

This finding is supported by Surtees’ research (2007: 40) that found that:

while problematic family relations were, in many circumstances, a catalyst for individuals to migrate, many victims also reported positive and supportive family and community relationships. In some cases it may have been precisely these positive relations (and the resulting desire to support and assist the family) that led victims to migrate.

Similarly, research by Blanchet (2005: 310) found that the:

majority of marriages in [the] sample had the assent of parents, who allowed their daughters to be taken away for marriage or else handed them directly to a man who had travelled to marry.

Moreover, stakeholders perceived that being the only or eldest daughter with inborn obligations to support the family was a significant push factor, especially if there were elderly, ill or young family members.

Importantly, the diverse drivers for migration identified through this research clearly demonstrate that while human trafficking and exploitative migration scenarios occur in a particular socioeconomic context, with women migrating from developing to developed countries, economic factors are not always the sole or even the primary motivation underpinning the victim’s choices.

Sham or fraudulent marriages

Sham marriages ‘are entered into purely for immigration purposes with no genuine intention that the two parties continue their relationship once the migrant is in Australia’ (Schloenhardt & Jolly 2010: 678). Entering into a married relationship for immigration purposes that is not intended to be genuine and continuing, and arranging a marriage to obtain permanent residence for someone else, are offences amounting to immigration fraud (Migration Act 1958 (Cth) div 12, sub-div B, ss 237, 240; Schloenhardt & Jolly 2010). In Australia, the Migration Act 1958 (Cth) outlines sham marriage offences that relate to abuse of laws allowing migrant spouses or de facto partners of Australian citizens or permanent residents to obtain permanent residency (Migration Act 1958 (Cth) div 12, sub-div B).

A sham marriage can be used by traffickers to facilitate migration to a country by deceiving immigration authorities into granting a visa to the victim so that they can enter and remain permanently in Australia to be exploited. Sham marriages may be used as a method of recruitment for human trafficking into various forms of exploitation, such as domestic servitude, exploitation within the sex industry and forced labour. Traffickers either marry the intended victim themselves or to another person as a method of misrepresenting the relationship status of that person to immigration authorities. These marriages are fraudulent in that ‘the woman is not expected to become a “wife” to her husband and indeed might never see her husband after the ceremony’ (GAATW nd: 2); however, the woman may or may not be aware that the marriage is contrived.

While the marriages in this study involved serious exploitation, the majority were intended by both parties to be genuine marriages; that is, the parties intended to live together, have an intimate relationship and in some cases, start a family together. In one case, however, the marriage appeared to be sham or fraudulent because the husband did not genuinely intend to live with his wife as a married couple.

Several stakeholders similarly spoke of sham marriages being used to facilitate legal entry to Australia for exploitation in other cases not examined for this research. The marriages were fraudulent due to the contrived nature of the relationship and because there was no intention for the husband and wife to live together as a genuine couple. One stakeholder provided an example of a sham marriage between an alleged trafficker and a victim that was legally carried out for the purpose of obtaining a visa for the victim:

The woman has never seen that person since. The marriage was used to get her to Australia to help her get a job. The exploitation was not within a family-type relationship setting…it was other exploitation (service provider).

In the case of R v Kovacs [2008] QCA 417, the victim was allegedly ‘aware that the marriage was a sham only for the purpose of securing a visa to enter Australia’ (Schloenhardt & Curley 2011), to work and send remittances to her family in the Philippines. The victim ‘was told that she would need to marry a white Australian man in order to assist in obtaining a visa, but that the marriage would be fake’ (R v Kovacs [2008] QCA 417).

Stakeholders also observed sham marriages being used in human trafficking scenarios in which a trafficker coerces a victim to marry someone they do not have a relationship with but who is paid to do so. This allows ostensible legal entry for the victim and once their exploitation has ended with the repayment of their debt to the trafficker, they are able to remain in Australia because of their Partner visa status. In this scheme, the fake husband receives payment, the trafficker benefits from exploiting the wife until she repays her debt and the wife is able to remain permanently in Australia. Several stakeholders provided examples of these types of sham marriages being linked to cases of human trafficking involving exploitation in the sex industry (interviews 2011). According to stakeholders, sham marriages were needed to give the impression that women from high-risk countries were in a stable financial position and therefore not coming to Australia to work in the sex industry. To pass through this tighter visa regime, traffickers marry the victim to a third party in order to pass immigration processes (stakeholder interviews 2011).

Other stakeholders spoke of cases where women were allegedly trafficked to Australia, but once their exploitation ends they marry an Australian citizen in order to remain in the country so they will not have to face the shame of returning home (stakeholder interviews 2011).

These examples highlight that sham marriages have been used to allegedly traffic women into Australia. Further, they demonstrate that this has occurred with the victim/survivor being both aware and unaware of the sham nature of the marriage. This suggests that being a willing participant in a sham marriage does not operate to protect migrant women from trafficking or related exploitation. Unlike other cases, where the marriage is genuine (albeit used to facilitate serious exploitation in some cases amounting to human trafficking), these cases highlight possible weaknesses in DIBP’s processes for detecting marriages that are not genuine. This raises issues for prevention, which are addressed later in this report.

Period of exploitation

Offenders and patterns of offending

Stakeholders generally identified alleged offenders as being the men who marry the victim/survivor. However, stakeholders and victim/survivors also identified the husband’s family members as being involved in the violence or exploitation (see below) and possibly the recruitment process. For example, one service provider explained:

We did have some cases where the mother-in-law was involved. But it’s hard to know because in other cases I would say the husband definitely perpetrated abuse but the mother-in-law was hand-in-hand with that (service provider).

One victim/survivor also emphasised the controlling nature of her mother-in-law. She asserted that her mother-in-law

[w]anted a young bride so she could bring them [to Australia] and control them. When [the brides] come here they know nothing so they need her and that is the time she can control them in the best way (victim/survivor).

Offenders were most likely to be dual citizens which according to one service provider, is a ‘real selling point’ because ‘there’s a real illusion that if you live in Australia you have money’.

There is little information on perpetrators of human trafficking offences, however, the growth of information regarding offenders reveals that ‘there is considerable diversity in the characteristics and criminal histories of offenders involved in trafficking crimes’ (David 2012: 1). This study contributes to the knowledge base of offenders and patterns of offending in Australia, with particular support for the expanding information on offenders other than organised criminal groups.

Despite stakeholders identifying organised crime groups as typically perpetrating human trafficking offences, interviews with victim/survivors and victim/survivor case file analysis undertaken for this study suggests that alleged offenders who used partner migration to bring women to Australia for exploitation were largely operating on an ad hoc, small-scale basis (see David 2012).

A number of experiences described by stakeholders and victim/survivors for this research also raise concerns about serial sponsorship and women being treated as exchangeable or disposable commodities. One of the husbands who brought his wife to Australia after meeting via an online dating site would regularly email a male friend to express his feelings about his wife. The emails ‘made it sound like his wife was a commodity, that he was not happy with the product and that he was going to return her and get another one’ (service provider). Another husband who met his wife through internet dating tried to find a new wife online when he decided he no longer wanted to be with his current wife.

Role of the husband’s family in perpetrating the exploitation

The Family Violence Provisions specify that in order for a victim of family violence to access the provisions, the violence must be perpetrated by their spouse. However, a number of the women interviewed for this study identified abuse or exploitation that was also perpetrated by the spouse’s family, such as extreme surveillance, control and manipulation. For instance, one woman was continuously threatened with deportation by her mother-in-law who told her that ‘no-one could send [her] back to [her country] but [her mother-in-law]’ (victim/survivor). Stakeholders largely reported the mothers-in-law as the instigators of and main contributors to the control of the women in this sample, as well as other cases they had knowledge of.

Stakeholders, however, also spoke of the ambiguity of the role of the husband’s family in recruiting and exploiting a wife, as well as the difficulty in proving their involvement. One case worker acknowledged that it was often ‘unclear’ whether ‘the husband is influenced by a second or third family member’ and how in some cases, even a distantly located relative seemed to be involved:

the grandmother overseas has had influence…It gets quite convoluted (service provider).

Power imbalances

Human trafficking is characterised by victim–offender relationships that are influenced by power imbalances between individuals, communities and countries in relation to gender, class and ethnicity (GAATW nd).

In relation to human trafficking involving marriage, power imbalances are often attributed to:

  • the victim/spouse having a lower level of education compared with the offender/spouse;
  • a significant age difference between the victim/spouse and offender/spouse (between 10 and 20 years);
  • the victim’s lack of English language skills, unfamiliarity with Australian culture and lack of knowledge of rights under Australian law;
  • the victim’s isolation from family and friends; and
  • the victim’s dependence on the offender/sponsor for legal immigration status (ALRC 1994; Schloenhardt 2009b).

This shows that vulnerability can stem from personal characteristics as well as the vulnerable context in which the victim is positioned.

In the current study, the significant power imbalances between the migrant women and their husbands and his family were evident. Indeed, the findings showed that dependence on spouses extends to emotional, social and financial support and this made it very difficult for victims to leave their situation.

It is clear from the victim/survivors’ stories that they lacked English language skills, were unfamiliar with Australian culture and laws, and experienced extreme isolation. What also emerged is the substantial age difference between the husband and wife. Seven women who participated in an interview provided their age and their husband’s age at the time they were married. Women were aged between 18 and 49 years at the time they married; with husbands being aged between 23 and 60 years. The smallest age difference between partners was five years, with the greatest being 19 years. Notably, there was a 10 year or greater age gap between the husband and wife in half of the eight cases. In contrast, the findings show that education level was not a considerable risk factor for vulnerability, with the majority of women completing secondary or tertiary level studies.

While some of the women did not share the same vulnerable characteristics or personal circumstances as a typical victim, the victim/survivors were still deceived into situations that enabled their exploitation.

Power imbalances also resulted from the short duration of most of the relationships prior to marriage. Because couples often met in person for the first time at the wedding or shortly prior to the wedding, women had limited knowledge about their husbands, such as his previous or existing relationships, family background, criminal record and financial situation. DIBP representatives interviewed for this research expressed similar concern over marriages that were solemnised by proxy, in which the couple had not met in person as adults. In these situations, it is DIBP’s policy to refuse the migrating spouse a visa to reside in Australia; however, there have been instances where the Migration Review Tribunal overturned DIBP’s decision (see Box 5). This discrepancy in policy creates two problems. First, it can increase the risk of exploitation and abuse for the migrating spouse. Second, it can increase the risk of visa fraud where couples have no intention to be in a genuine relationship and are using a marriage visa as a means to gain entry to reside in Australia. Aligning the Migration Act 1958 (Cth) with DIBP’s policy can go some way to addressing these problems.

Box 5: Case studies in which Partner visas have been granted when the spouses had not met in person as adults

Example 1: A 22 year old Abu Dhabi-born Australian citizen applied to sponsor an 18 year old Somali visa applicant. The applicant was the cousin of the sponsor’s mother; however, the sponsor and the visa applicant had never met in person. They were married by proxy in Kenya four months before applying for a visa. The DIBP decided to refuse to grant the visa on the basis that it was a marriage of convenience rather than a genuine committed relationship with a mutual commitment to a shared life as husband and wife. The Migration Review Tribunal overturned the decision to refuse the Partner visa after ruling that the sponsor and applicant had a genuine intention to live together as husband and wife and were commitment to make their marriage a success.

Example 2: A 23 year old Australian citizen from Sudan applied to sponsor a 27 year old visa applicant also from Sudan. The sponsor and visa applicant were cousins, but had not seen each other since they were teenagers. They married by proxy approximately one year before applying for a Partner visa. At the time of application and decision (approximately 2 years apart), both parties were living in separate countries. The DIBP refused to grant the visa on the basis that there was not enough evidence to prove the sponsor and applicant were in a genuine married relationship. The Migration Review Tribunal ruled that the sponsor and applicant did have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship was genuine and continuing, and that the parties did not live separately on a permanent basis.

Exiting the exploitative situation

Responses to help-seeking behaviours

The community organisations, domestic violence shelters and state or territory police from which the victim/survivors in this study sought assistance did not appear to recognise the women’s exploitation as related to human trafficking, but rather as domestic violence. Consequently, cases were most likely to be reported and treated as domestic violence and dealt with under the Family Violence Provisions.

This finding highlights the need for these sources to be aware of the indicators of human trafficking and related exploitation involving marriage to assist with correctly identifying victim/survivors and referring them to the appropriate services and authorities (discussed below). Specifically, education and awareness-raising initiatives can:

  • help authorities and service providers understand that cases may first present as domestic violence;
  • ensure that authorities and service providers are aware of additional indicators that might signal that it is a human trafficking situation;
  • ensure that authorities and service providers use these indicators in their initial assessment so that victim/survivors of human trafficking are correctly identified;
  • identify potential points of intervention; and
  • assist victim supports to identify the appropriate services and needs of this group.

If domestic violence support personnel are not aware that ‘elements of marriage can rise to the level of trafficking or servitude’ (service provider), then the case may never proceed as the more serious human trafficking offence. If someone ‘knows about trafficking within the service then they might think to call a more specialised service’ (service provider). However, stakeholders believed that ‘there are probably many women across the country in domestic violence services who have experienced situations of servitude’ and that ‘there are trafficking victims being supported by services that wouldn’t think that it was trafficking’ (service provider). Stakeholders explained that human trafficking is rarely identified correctly because there is no ‘mainstream network like domestic violence. It is not like standard assault or people coming out of prison where there are refined mechanisms and support systems. [Human trafficking] does not have that collective network’ (service provider). Therefore,

if a person comes to the attention of a domestic violence service initially, that service is checking the domestic violence boxes. That’s the boundaries around their work. Most places do not have the resources and the hours that it takes to build someone’s story (service provider).

However, even if domestic violence workers are aware of the indicators of human trafficking and suspect that a case may be more than migrant domestic violence or a bad marriage, stakeholders believed that:

Sometimes there is no point going into the depths of [seeking a remedy through human trafficking provisions] if we know the most effective remedy for that person is domestic violence or family violence provisions…we’re about trying to meet the most immediate needs of the individual…their visa is probably going to expire or someone is going to withdraw sponsorship (service provider).

As such, stakeholders reported that:

Sometimes the angle we come at with cases is thinking the best remedy for this person is through the family violence provisions. While we do think about what are the servile-like or slavery-like indicators, they are not strong enough to support that remedy, so they end up filtering in to that domestic violence setting. I think that’s what’s really hard because a lot of the time the elements of domestic violence are much higher and are much easier to be the most effective remedy for that person…And for some women it’s quicker, it’s less traumatic, it allows them to just file an application and that be it…there are a lot of subtleties involved in marriage than in trafficking at large (service provider).

Moreover, stakeholders believed that accessing critical services for their clients was easier through the family violence provisions as a victim/survivor of domestic violence as opposed to pursuing those avenues as a victim/survivor of human trafficking:

Access to property or houses is much more accessible because it’s quite clear there is family violence. We have a pretty specific response to domestic violence. It’s very hard to get other people to see this as more than just domestic violence and how do we have state police look further at ‘this is a migrant woman, this is her situation and how is it more than domestic violence?’ Because the domestic violence realm is so well-defined they just go ‘oh, right, this is domestic violence’ (service provider).

Research literature on human trafficking more generally has also highlighted the comparison between human trafficking and domestic violence, and as such, ‘[i]t is possible that cases…may also be treated as incidents of serious domestic violence or sexual assault rather than trafficking’ (Schloenhardt & Jolly 2010: 687; see also Kleemans 2011).

Obstacles for reporting and prosecution

The impact of consent on substantiating evidence

Despite the consent of a victim being irrelevant in cases of human trafficking where coercion, threat or deception have been used, stakeholders still expressed concern about the effect that consent has on investigating and prosecuting cases involving marriage:

I think it does play a really big role in how cases are investigated or prosecuted…I think it has a huge effect…Some people may argue that it’s not any different to any other marriage in terms of marrying someone in Australia and they could be totally the person that they’re not, and that all comes out afterwards…But we always consider here the element of bound consent: what does consent mean, what are the different elements of consent and where was the deceit to get that consent? Whether it be marriage or whether it be employment, what kind of position has that person been in to give that consent, or coerced into giving consent and what other choices did they have? The vulnerability and the other higher risk factors for migrant populations are what make it distinctly different. They are probably putting a lot more at risk in terms of coming to a new country (service provider).

Another agreed that:

People don’t need coercion, threat or force because they are in such poor conditions in their home country that they are consenting or willing to come to Australia despite not knowing their husband’s character because their life in exploitative or servile conditions is still better than in their home country (immigration stakeholder).

Stakeholders clarified that consent that appears to be given freely creates difficulty in securing prosecutions for law enforcement because technically the means element (threat, coercion or deception) of human trafficking is absent. Although coercion includes psychological oppression, abuse of power and taking advantage of a person’s vulnerability (Division 270.1A, Criminal Code 1995 (Cth), the apparent absence of overt (or physical) ways used to obtain consent remains problematic for establishing, prosecuting and obtaining a conviction for human trafficking and slavery offences.

From a law enforcement perspective, allegations need to be corroborated, which can prove difficult in a domestic setting where the offending husband may be the only witness to the circumstances. These factors appear to often result in cases being assessed as domestic violence or a form of exploitation that is unlikely to meet the legal definition and evidentiary requirements to be prosecuted as a human trafficking offence.

The perspectives of stakeholders lends support to Vijeyarasa’s (2010: 217) argument that ‘[any] agency exercised by the individual is seen by the courts, police and others as rendering their victimhood impossible’. However, as Vijeyarasa (2010: 217) concludes, ‘agency and voluntariness should not be a barrier to prosecuting traffickers’. The recent legislative amendments to the Criminal Code 1995 (Cth) aim to rectify this perspective by stipulating that a victim/survivor’s consent or compliance is not a defence to conduct constituting any element of a human trafficking or slavery offence (Division 271.11B and 270.11, Criminal Code 1995 (Cth)).

Establishing intent

In addition, it can be difficult to establish the intent of the husband and whether they sought to use marriage to traffic a person to Australia for exploitation, or whether they intended the marriage to be genuine but where domestic violence was perpetrated within that relationship. One service provider, for example, expressed the challenge of determining intent:

Who knows what the intention of the trafficker is. Was it always their intention to do that? Who knows how to decide that? Are they just generally abusive? If you have two women and they have both filed family violence applications and he is trying to sponsor a third, that plays into the intention. But sometimes it does beg the question about what the intention was of that person. That’s the hard thing because you can’t really prove that; you can’t really prove that that was always that person’s intention to exploit them (service provider).

Law enforcement representatives articulated that distinguishing between visa fraud with the intention to traffic a person and visa fraud for the purpose of gaining permanent residency can also be difficult. Likewise, stakeholders expressed that it is equally as difficult to establish human trafficking from a genuine marriage situation involving domestic violence:

What was the intention of the man in the first place? Was it to bring her out to Australia for exploitation, or was it a genuine relationship to begin with and then it changed? (law enforcement stakeholder)

Although women who migrate for marriage are at an increased risk of domestic violence (Schloenhardt 2009a), human trafficking involving the exploitation of a wife is distinguishable and significantly more serious than a bad or abusive marriage. Stakeholders have identified that one of the key factors that distinguishes human trafficking involving the exploitation of a wife from migrant domestic violence is the presence of servitude or slavery-like conditions. Indicators of servitude and slavery-like conditions include significant loss of freedom, loss of personhood and where the consent of the wife was obtained by coercion, threat or deception.

While Australian legislation states that the crime of human trafficking can be committed if the perpetrator is reckless as to whether the victim will be exploited, the United Nations Trafficking Protocol states that to criminalise conduct associated with human trafficking, the act must be committed intentionally.

Supporting victims through criminal justice processes

Assistance and support plays a key role in a person’s decision to speak with police and be a witness at a criminal trial. Assistance is provided through the Australian Government’s Support for Trafficked People Program, as well as a small number of NGOs that specialise in providing tailored assistance to trafficked people. In the opinion of victim support providers, victim/survivors of human trafficking or related exploitation involving marriage have similar support and rehabilitation needs as victim/survivors of other forms of human trafficking, mainly because ‘they are still a vulnerable and marginalised group’ despite specific circumstances. Primarily, victim/survivors required income support, accommodation, assistance with finding work, rectifying their visa status and caring for their children, medical care, advocacy and legal assistance. Specific needs included assistance with divorce or annulment, applying for an apprehended domestic violence order and applying for permanent residency through the family violence provisions. However, of greatest importance was ensuring that victim/survivors were able to access psychological treatment as this was considered to have the most influence over a person’s capacity or willingness to participate in an investigation. One of the greatest challenges in providing the most effective treatment for victim/survivors is the cost and availability of services to meet individual needs:

Psychological services are probably the hardest to get for people who don’t have an income to pay for them and people from culturally and linguistically diverse backgrounds may be less likely to engage in mainstream health services. So we need to find psychologists who are willing to work for no money and provide alternative therapies, like art therapy, recreation because people from culturally and linguistically diverse backgrounds may be confronted by the thought of mental health or trauma interventions, especially when it comes to family violence because they shouldn’t be talking about what happened in the home. They are very ashamed…and it takes a significant amount of time before that person is able to start verbalising. If I have to identify one specific thing that I think is required it would be access to psychological assistance because that then plays into their capacity to or willingness to participate in any investigation. Those two definitely go hand in hand. I think we are finding a lot of the time the kind of investigation request comes before the other stuff. So they might get their 45 days of settling down time, but 45 days in my opinion as a social worker is not enough for somebody to be able to get to the point of being ready. I understand there are those restraints around being able to collect particular types of information or evidence within a time period, but I think psychological services need to be prioritised more heavily because that definitely does influence somebody’s capacity.

Cultural influences

Cultural disparities between the countries of origin and destination, and cultural perceptions about gender and the institution of marriage can contribute to every aspect of a person’s trafficking experience. It contributed to how the victim/survivors in this study entered the exploitative situation, it contributed to the exploitation that they suffered and it inhibited their ability to leave or even identify their situation as exploitative or abusive.

This research highlights the perceived differences between the victim/survivor’s motivations and the husband’s motivations for seeking an immigrant spouse, which in most cases, involved a man seeking a woman with seemingly traditional values towards the institution of marriage and who is ‘interested in fulfilling traditional family roles’ (Hughes 2004: 51). Further, it is evident that cultural norms are also played out in-country and replicated elsewhere to facilitate human trafficking and associated exploitation. As Seyhan (2009: 36, 39) has argued ‘cultural practices concerning gender, ethnicity, and marriage create an ideal setting for becoming a trafficking victim’ as some behaviours or activities that define human trafficking might also be regarded as ‘customs or rituals by various cultures or nations’. Specifically, Seyhan (2009: 36) draws on literature by Long (2004) to determine that some ‘cultural practices provide preconditions of contemporary sexual trafficking’. However, such practices can also lead to conditions of domestic servitude, servile marriage and other slavery-like conditions involving non-sex labour. For example

in southern Vietnam the exchange of gifts at the time of marriage is a common place. In return for this payment, the women are expected to move to their in-laws and provide labor for them (Seyhan 2009: 36).

Research conducted by IOM and the Association of Southeast Asian Nations in Indonesia concluded that ‘cultural factors can lead to under-reporting by family members, to protect their reputation and avoid legal consequences for their acts’ (IOM cited in Seyhan 2009: 37). Often there are family members involved and women may not wish to prosecute their family. Therefore, they may not reveal all the details of their exploitation or lie to protect a partner or family members. Further, if a victim/survivor has had their trust betrayed by someone close to them, then it may be difficult for them to trust a stranger from a different country and who holds a position of authority. Fear of reprisals may also play into their willingness to report and provide evidence as a witness.

Service providers spoke about typical responses of victim/survivors to pursuing legal action against offending family members:

they usually don’t want to pursue anything further. They just want to be safe, they want to be divorced and they want to start a new life. It’s difficult because while legislation can’t hurt, I know what the ramifications can be in pursuing an investigation and potential prosecution. That is what we struggle with in general trafficking cases and is the reason so many trafficking cases don’t get counted or get prosecutions (service provider).

It is therefore recommended by stakeholders (interviews 2011) that if a case proceeds to court, cultural experts become involved in court processes to assist with providing cultural knowledge and to explain the mindset of a person from a particular culture or country of origin. This could assist the jury to understand the victim’s background and how it might influence their attitude and behaviours.