Trafficking in persons

Offences

• Trafficking in persons (adults)

Acts Involved

• Recruitment/Hiring
• Harbouring
• Receipt

Means Used

• Deception

Exploitative Purposes

• Forced labour or services

Keywords

• Transnational trafficking
• Forced labour or services

The Queen v Faroz Ali and Jafar Kurisi

UNODC No.:
NZL003

Fact Summary

Between August 2013 and September 2014, fifteen persons were trafficked to New Zealand.

Mr Ali’s de facto wife, Ms Geeta Chandar (Geeta), operated a travel agency known as Deo’s Travel Agency. Her twin sister, Ms Sanjana Ram (Sanjana) operated another travel agency, known as Ram’s Travel & Immigration Services. Both businesses operated out of premises in the same suite of an office building in Suva, Fiji. At various times, on behalf of their respective agencies, Geeta and Sanjana placed advertisements in the Fiji Sun newspaper. The advertisements were aimed at the vulnerable, and they were designed to excite the interest of people living in Fiji who were prepared to travel to Australia and New Zealand to earn a significantly better income than they could earn in Fiji.

The fifteen complainants responded to those advertisements. Each consulted either Geeta or Sanjana (or one of their respective employees), about travelling to New Zealand to undertake the advertised work. A common theme of their evidence their desire to travel to New Zealand and to work to make more money so that they could provide a better lifestyle for themselves, their families and wider village communities. On the basis of representations made to them, most expected to earn up to seven or eight times more money per week than what they were able to earn in Fiji.

In most cases, a victim would be required to pay a consultation fee before being given any further information. Further costs were incurred when someone at the travel agency filled out visa application forms to enable the victims to travel to New Zealand, and when their passports and visas were available for uplift. In total, those fees varied between about $FJ1500 and $FJ4000. Those amounts were grossly disproportionate to the amount of money that each of the complainants could earn in Fiji. Many borrowed significant sums from relatives, or from communal funds operated in their respective villages, to meet those costs. The fees charged in Fiji were extortionate in nature.

The general thrust of the evidence was that each complainant was asked to sign a visa application in blank. The required information was filled in by Geeta, Sanjana, or one of their employees. In all cases, the applications contained false or misleading information. A visitor’s visa was sought on the basis that the applicant intended to travel to New Zealand to visit friends and family. Those false statements had the effect of concealing from those responsible for approving the application the fact that the applicants intended to work in New Zealand. A visitor’s visa gave no right to work in New Zealand.

A number of complainants noticed, when the visa was obtained, that it was a visitor’s visa, rather than a work visa. A theme of the largely unchallenged evidence was that each complainant was assured by one of Geeta or Sanjana (or in two cases, an employee) that they could travel to New Zealand to work on the visitor’s visa, and/or work permits would be available on their arrival.

Most of the complainants understood that their accommodation and food costs were covered by what they had paid in Fiji. However, in almost all cases, they knew that they had the responsibility to meet the cost of their airfare to and from New Zealand. Contrary to what most understood, costs of food and accommodation for almost all of the complainants were unlawfully deducted from monies paid to each.

Most of the complainants were met at Auckland airport, by Mr Ali and/or an associate. Mr Ali operated a construction business in Auckland. Some of the complainants went to live at his home, a small unit in Papatoetoe, and worked in his business. They slept on the floor, or on a sofa in the lounge area of that unit. On more than one occasion, Mr Ali took a victim to a solicitor in Auckland to ensure documentation was prepared to extend the visitor’s visa. No attempt was made, at any time, to have their working status legitimised.

Others went to work for another man in Tauranga, Mr Jafar Kurisi (also known as “Tauranga Ali”) pruning kiwifruit vines. One particular group, consisting of three women and one man, were housed by him in sub-standard rented accommodation, near Tauranga. All four were given a single room in which to sleep on the floor in a basement area that was originally a garage. All complainants say they were poorly paid.

At the start of the trial, Mr Ali pleaded guilty, before the jury, to 18 charges that he exploited workers by failing to pay the minimum wage and holiday pay. He also pleaded guilty to a further 8 charges that, for a material benefit, he aided or abetted named complainants to breach a condition of a visa; namely, to work whilst on a visitor’s visa. The jury was left to determine the remaining 31 charges, of which Mr Ali was found guilty and convictions were entered on each on 12 September 2016.

Commentary and Significant Features

This is the first successful trafficking prosecution in New Zealand history.

Sentence Date:
2016-12-15

Keywords

Purpose of Exploitation:
Forced labour or services
Sector in which exploitation takes place:
Agriculture
Construction
Acts:
Recruitment
Harbouring
Receipt
Form of Trafficking:
Transnational
Means:
Deception

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Application of the Convention

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Fiji

New Zealand

Investigation

Involved Agencies

• Immigration officials
Comments:
The court commended the means by which the investigation took place.
 

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
High Court
Type of Proceeding:
Criminal
 

1st Instance

Court: High Court of New Zealand

Location: Auckland

Date of decision: 15 December 2016

Reference: CRI 2015-092-6886/ NZHC 3077

 
 

Victims / Plaintiffs in the first instance

???Complainant???:
16 Anonymous
Nationality:
Fiji Islanders
15 were involved in trafficking

Defendants / Respondents in the first instance

Defendant:
Faroz Ali
Gender:
Male
Nationality:
Fiji Islanders
Age:
46
He holds a New Zealand residency
Legal Reasoning:

1)     The judge was satisfied that a jury could find that the complainants were naïve and vulnerable, and could have relied on the false assurances, that they could travel to New Zealand to work on the visitor’s visa, and/or work permits would be available on their arrival. The judge was also satisfied that Mr Ali knew of the poor conditions in which the victims were living and working.

2)     The acts of deception were carried out in Fiji by (or on behalf of) either Geeta or Sanjana. It was they who induced each of the complainants to travel to and enter New Zealand on the basis of false representations as to good pay and working conditions, and an ability to work legally in New Zealand. Mr Ali’s role was to make arrangements for the reception of the complainants into New Zealand; including the provision of some accommodation and work. On that approach, the acts Geeta and Sanjana carried out in Fiji, when taken together with the acts carried out in New Zealand by Mr Ali, completed the offence of trafficking people by deception. For those reasons, the Crown could close on the basis that Mr Ali was a principal offender. Section 66(1)(a) is the foundation for that liability.

3)     The aggravating factors relevant to the sentencing of Mr Ali are:

(a)   The vulnerability of the victims

(b)   The number of the victims

(c)   The duration of the offending

(d)   The circumstances in which the offending came to cease; namely only when law enforcement officers became involved

(e)   The nature and degree of deception practiced upon the victims in Fiji

(f)    The nature and degree of exploitative conduct; including the extent to which each victim was treated in a manner that fell below acceptable working conditions in New Zealand

(g)   The extent and method of control exercised over the victims

(h)   Any psychological and financial harm caused to the victims

(i)     The premeditated nature of the criminal activity and the way in which it was co-ordinated between Fiji and New Zealand

(j)     Attempts to have the period during which each victim was in New Zealand extended, or arrangements made for them to return to New Zealand to continue exploitative work

(k)   The extent to which the victims were asked to lie to authorities to avoid detection of Mr Ali’s offending

(l)     The degree of manipulation that occurred

(m)  The motive of a financial nature that lay behind the offending and the lack of remorse Mr Ali has shown for what he did.

According to the Court, the offending committed by Mr Ali sits around the middle of the range for offending of this type. Taking account of the aggravating factors mentioned above and the maximum available sentence of 20 years imprisonment, the Court took a starting point of 10 years imprisonment. For the prior good character of Mr Ali and the reparation, the court gave him a total credit of six months. That leaves a total end sentence of nine years and six months imprisonment.
Defendant:
Jafar Kurisi
Gender:
Male
He had pleaded guilty to lesser charges involving exploitation of employees. He was taken to Tauranga Hospital the morning of the sentencing in an emergency situation. Mr Kurisi’s sentencing was adjourned to 2 February 2017. Mr Kurisi was remanded on existing terms for sentence on that date.

Charges / Claims / Decisions

Defendant:
Faroz Ali
Verdict:
Guilty
Charge / Claim:
15 charges of Trafficking in Human Beings by Deception
Legislation / Statute / Code:

Section 98 D (1) and (2) of the Crimes Act 1961

98D Trafficking in people by means of coercion or deception

(1) Every one is liable to the penalty stated in subsection (2) who—

(a) arranges the entry of a person into New Zealand or any other state by one or more acts of coercion against the person, one or more acts of deception of the person, or both; or

(b) arranges, organises, or procures the reception, concealment, or harbouring in New Zealand or any other State of a person, knowing that the person’s entry into New Zealand or that State was arranged by 1 or more acts of coercion against the person, 1 or more acts of deception of the person, or both.

(2) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.

Section 66 of the Crimes Act 1961

66 Parties to offences

(1) Every one is a party to and guilty of an offence who—

(a) Actually commits the offence; or

(b) Does or omits an act for the purpose of aiding any person to commit the offence; or

(c) Abets any person in the commission of the offence; or

(d) Incites, counsels, or procures any person to commit the offence.

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

Verdict:
Guilty
Charge / Claim:
15 charges of Aiding and Abetting Unlawful Entry into New Zealand
Legislation / Statute / Code:
Section 343 (1)(b) of the Immigration Act 2009

343 Aiding and abetting

(1) Every person commits an offence against this Act who,—

...

(b) whether in or outside New Zealand, and whether or not the other person in fact enters New Zealand, aids, abets, incites, counsels, or procures any other person to unlawfully enter New Zealand …,—

(i) knowing that the other person’s entry into New Zealand is or would be unlawful; or

(ii) being reckless as to whether the other person’s entry into New Zealand is or would be unlawful; or

...
Verdict:
Guilty
Charge / Claim:
One charge of Aiding and Abetting a Person to Unlawfully Remain in New Zealand
Legislation / Statute / Code:
Section 343 (1)(a) of the Immigration Act 2009

343 Aiding and abetting

(1) Every person commits an offence against this Act who,—

(a) for a material benefit, aids, abets, incites, counsels, or procures any other person to be or to remain unlawfully in New Zealand or to breach any condition of a visa granted to the other person; or
Term of Imprisonment:
9 years 6 Months
 
Compensation / Payment to Victim:
Yes  28167  NZD  (10,000-50,000 USD)
On 3 February 2017, the judge varied the reparation order by subsituting the sum of $NZD25,487, due to an error of inclusion of a reparation payment for a complainant who did not ultimately give evidence at trial and in respect of whom no conviction has been entered.
This sum excludes victims who were victims of both Mr Ali and Mr Kurisi. That has been done because Mr Kurisi has made an offer for reparation which should cover those victims to the same, if not more, extent.
Defendant:
Jafar Kurisi

Court

High Court of New Zealand

Sources / Citations

http://www.courtsofnz.govt.nz/judgments/high-court

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