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Family member exploited in a restaurant

Prishen,   Indian, 43

Name: Prishen*
Age: 43
Country of Origin: India
Visa type: 3 month holiday visa

Why did Prishen come to Australia?

Prishen came to Australia so that he could visit his relatives, and take a break from working in his successful restaurant in his home village in India. He was so excited about seeing a new country. His relatives operated a restaurant in Melbourne and offered to organise his visa, pay for his ticket and let him stay at their house if, in return, he agreed to help out at the restaurant. Prishen though this was a fair bargain. The details of how much he would be required to help at the restaurant were quite vague but he trusted his family members and wasn’t too worried. Prishen did not realise that he would be coming to Australia on a tourist visa which did not allow him to work.

What happened when Prishen got to Australia?

When Prishen arrived, was told that he had to work in the restaurant every day for the length of his visa to pay for the flight and also help pay the rent. He had to work every night from 5pm to 1am (without breaks) and was given about $50 per week to cover his expenses. Otherwise, Prishen was never paid for any of the work that he did. He was allowed to do what he wanted in his hours off but he spent most of the time sleeping so he didn’t get to do much sightseeing. Prishen thought that he was helping out his family, but the situation was not what he agreed to and soon became very exploitative.

How does Australian law see this?

By working in the restaurant, Prishen had breached his holiday visa conditions – even thought he was not paid for the work that he did. Prishen’s family is in breach of sections 245AA to 245AK of the Migration Act 1958 (Cth), which make it an offence to knowingly or recklessly employ or refer for work a person who does not have a valid visa or who is working in breach of their visa conditions.

It is unclear whether any of the trafficking offences in the Commonwealth Criminal Code would apply in Prishen’s case. Establishing whether any offences have been committed would require a detailed analysis of exactly what Prishen was told before he came to Australia, and what was the intention of his family. It is unlikely that his family has committed any slavery offences under the Code. The Code does not have a stand-alone offence of forced labour. For more information about Criminal Code offences, see Fact Sheet #5 What is labour trafficking.

However, Prishen may be able to bring a civil action against his family to recover unpaid wages. His family could also face severe financial penalties or even imprisonment under the Fair Work Act 2009 (Cth) for his conduct. To find out more about civil remedies and remedies under the Fair Work Act, see Fact Sheet #7 - Australia's Legal Response to Trafficking and Fact Sheet #15 - Where can trafficked and exploited people get help.

“I would never have thought that my own relatives would force me into labour. But without any money, I felt I had to work to repay them for allowing me to stay with them.”


*Note: "Prishen" is not his real name

 

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