Centros Regionales

Under international law, there is an emerging obligation on states to quickly identify victims of trafficking.4 Without being formally identified, victims will be precluded from seeking the remedies available to them. In practice, this identification process can be difficult for a number of reasons. Victims may not view themselves as being victimised; the covert nature of the crime makes victims difficult to find; victims often have a strong distrust of authorities, and have often been subjected to high levels of trauma and intimidation.5

Victim identification will almost always be a reactive process. Due to the officially-perceived similarities between human trafficking and other offences such as migrant smuggling, a victim will often be able to be identified only after exploitation has begun. Due to the difficulties in properly identifying victims, there is an emerging trend to give at-risk individuals a presumption of victim status until proven otherwise.6

The identification process should recognise that victims have been through a traumatic experience and deserve to be treated with respect. Often NGOs and other civil society organisations will deliver support to victims; however it is clear that ultimately the state holds the overall responsibility for ensuring the victim’s safety.7

In New Zealand, there is an official path of support that will be made available to certified victims of human trafficking. As yet, this is untested as there have been no formal identifications of victims; however this yet-to-be-tested framework appears to be sufficient. The table below, taken from the inaugural Immigration New Zealand Training Workshop attended by the Author in December 2012 sets out a flow chart detailing the responsibilities of various official agencies for a certified victim of trafficking:8

4 _{As noted in chapter three.}

5 _{H Clawson, N Dutch and M Cummings “Law Enforcement Response to Human Trafficking and the}

Implications for Victims: Current Practices and Lessons Learned” (report submitted to the US Department of Justice, October 2006) at 43.

6 _{Gallagher and Holmes, above n 1, at 330.}

7 _{At 330. See also Controller and Auditor-General “Achieving Public Sector Outcomes with Private Sector}

Partners” (7 February 2006) Report Produced under s 16 of the Public Audit Act 2001, at 8.

8 _{Immigration New Zealand, Training Workshop, attended by the Author (Wellington, New Zealand) 13}

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The main question that this table poses relates to the first stage. How will the police go about certifying a victim of trafficking? The New Zealand Plan of Action to Prevent People Trafficking states that police certification will be based on “an assessment of evidence and witness statements”.9

The police state that certification is awarded on the basis of a “reasonable suspicion” that the individual in question is a victim of trafficking.10

The New Zealand police have a training model which is delivered to detectives and other Criminal Investigation Bureau staff on how to recognise a victim.11 However, this training is geared towards the process of investigation after an identification of a victim has been formally made.12 As noted below however, it is unlikely to be detectives or other specialist staff who have the first contact with a victim of human trafficking. Rather, it will generally fall to the frontline staff in the New Zealand Police, the Ministry of Business, Innovation and

9 _{At 16.}

10 _{Interview with Liam Clinton (Detective Senior Sergeant, holds Human Trafficking Portfolio at National}

Headquarters, New Zealand Police) (the Author, Christchurch, 4 March 2013). The interviewee also described the standard as whether it is “likely” the person was trafficked.

11 _{Plan of Action to Prevent People Trafficking (Department of Labour, Wellington, 2009) [NZ Plan of Action]}

at 8. Interview with Liam Clinton (Detective Senior Sergeant, holds Human Trafficking Portfolio at National Headquarters, New Zealand Police) (the Author, Christchurch, 4 March 2013).

12 _{Interview with Liam Clinton (Detective Senior Sergeant, holds Human Trafficking Portfolio at National}

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Employment, the Ministry of Social Development, or interested NGOs working alongside these departments to make a preliminary identification. Unfortunately, these frontline staff as yet receive no formal training on how to make an identification.13

This table also shows the support that will be made available to victims of trafficking. It has been recognised that victims may have acute health requirements, and victims will be entitled to ACC and other publicly-funded health services.14 In addition, the Housing New Zealand Corporation has committed to using its best endeavours to find immediate temporary housing for identified victims of trafficking.15

Following police identification, a victim will be referred to the Ministry of Social Development who will assess the victim on a case-by-case basis to determine what services are required and coordinate the delivery of those services.16 Finally, the New Zealand Police will provide ongoing protection of the victim, and will communicate where possible with established foreign liaison offices.17 The certification is not irrevocable however. The police have stated that the certification will be withdrawn if there is evidence that the certification has been obtained for the purpose of immigration fraud,18 or if the victim obstructs the police investigation in any way.19

Part of the support that should be given to victims of human trafficking is the option to remain for a period of time in the country they have been trafficked into. Repatriation of the victim to their home country potentially exposes that victim to revictimisation from their former traffickers.20 The Immigration New Zealand Operational Manual has a section dealing with victims of trafficking. An applicant under the rules may be granted a work visa that is valid for 12 months. In order to obtain this visa, the victim must obtain certification from the New Zealand Police that they are believed to be a victim of human trafficking.21 There is a prescribed manner for applying for a work visa, however immigration officers who have been given specialist training in dealing with victims of human trafficking22 have the discretionary ability to waive the required application fee; evidence of funds or sponsorship; and the

13

Interview with Liam Clinton (Detective Senior Sergeant, holds Human Trafficking Portfolio at National Headquarters, New Zealand Police) (the Author, Christchurch, 4 March 2013).

14 _{Plan of Action to Prevent People Trafficking (Department of Labour, Wellington, 2009) [NZ Plan of Action]}

at 18.

15 _{At 19.} 16 _{At 20.} 17 _{At 21.} 18

Statement of Certification (obtained under Official Information Act 1982 request to the New Zealand Police).

19 _{Interview with Liam Clinton (Detective Senior Sergeant, holds Human Trafficking Portfolio at National}

Headquarters, New Zealand Police) (the Author, Christchurch, 4 March 2013).

20 _{N Boister An Introduction to Transnational Criminal Law (Oxford University Press, Oxford, 2012) at 44.} 21

Immigration New Zealand Operational Manual, at [WI16].

22 _{At [WI16.10]. It appears that this represents implementation by Immigration New Zealand of the}

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requirement to provide police certificates.23 An applicant under this part of the Operational Manual will be given priority processing.24

Despite the risk to victims of trafficking of revictimisation, many states will repatriate victims to their home countries. In circumstances where the victim is able to demonstrate the risk of revictimisation, a claim for non-refoulement under refugee law may be available.25 Although it does not specifically mention victims of trafficking, it would appear that victims are entitled to apply for protected person status under the Immigration Act 2009. Section 131 of the Act implements New Zealand’s obligations under Articles six and seven of the International Covenant on Civil and Political Rights (ICCPR) to implement the non- refoulement principle – that is, not to deport a protected person to a country where they would face “arbitrary deprivation of life or cruel treatment.”26

Although the ICCPR is not the ideal framework within which to view claims made by victims of human trafficking, there appears to be some room in which to do so.27

Despite these plans, no victims have ever been officially certified in New Zealand, and it appears that the certification process has never been used.28 Evidence presented in chapter two points to the apparent existence of human trafficking. Authorities are aware of crew members of fishing vessels who have lodged formal complaints, and yet no steps have been taken to investigate, or certify them as victims.29 In the National Plan of Action to Prevent People Trafficking, the New Zealand government adopted a “whole-of-government” approach, balancing the “three Ps” in order to combat human trafficking.30

In order to implement the “protection” element, it is necessary to identify victims to protect. It is suggested that the most appropriate method of doing this is to seriously investigate claims of human trafficking made by those alleging abuse, and civil society organisations acting on behalf of those individuals. Training must also be provided to frontline staff. It has been suggested that the most effective way to deliver this training is via e-learning, or during pre- shift briefing sessions of police officers.31 This would involve computer-based training, which can be delivered quickly to a large number of staff.

23 _{At [WI16.5].} 24 _{At [WI16.10].}

25 _{J Rodger “Defining the Parameters of the Non-Refoulement Principle” (LLM Thesis, Victoria University of}

Wellington, 2001) at 2-3.

26 _{Immigration Act 2009, s 131(1).}

27 _{U Jayasinghe and S Baglay “Protecting Victims of Human Trafficking Within a ‘Non-Refoulement’}

Framework: Is Complementary Protection an Effective Alternative in Canada and Australia?” (2011) 23 IJRL 489, at 489.

28 _{Interview with Liam Clinton (Detective Senior Sergeant, holds Human Trafficking Portfolio at National}

Headquarters, New Zealand Police) (the Author, Christchurch, 4 March 2013).

29 _{See chapter two.} 30

NZ Plan of Action, above n14, at 3.

31 _{Interview with Liam Clinton (Detective Senior Sergeant, holds Human Trafficking Portfolio at National}

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When compared to other jurisdictions such as Australia, the United Kingdom and the United States of America, New Zealand appears to have provided for a similar level of support to be given to victims of trafficking. The real test of this support will come if – and when – authorities begin to issue victim certification to individuals. Until that time, these support mechanisms will continue to be formal, but not substantive.