The owner of an Indian restaurant in suburban Sydney has been ordered to pay almost $200,000 to an illiterate cook who was trafficked to Australia and forced to slave 12 hours a day, seven days a week, until he finally alerted police.
The Australian, by Nicola Berkovic, 28 March 2015
The case revealed a “grotesque abuse” of the nation’s temporary skilled migration program and raised broader questions about the system’s administration, Federal Circuit Court judge Rolf Driver said.
The cook, Dulo Ram, was recruited from a small Indian village and offered work in Australia. When he arrived, he had his passport taken and was told he could not leave Australia until he had repaid a $7000 debt.
Justice Driver found that Divye Kumar Trivedi, the owner of Mand’s Indian Restaurant in Eastwood, in Sydney’s northwest, had “built a facade upon sham documents to deceive the Department of Immigration and the ATO and attempted to deceive this court”.
Justice Driver accepted Mr Ram, who doesn’t speak English, had worked for 16 months, from August 2007 to December 2008, with only one day off on Christmas Day, and that he had lived in the restaurant storeroom and washed in the kitchen using buckets of hot water.
He said Trivedi’s version of events — that Mr Ram was paid lawfully and lived in the Trivedi family home — “strains credulity to breaking point”.
Instead, the judge found Trivedi had falsified time records, pay slips and information provided to the tax office and Immigration Department, and that he withdrew the money he had supposedly paid into Mr Ram’s bank account.
Justice Driver said the case pointed to a “failure of administration” and raised questions about the 457 visa program.
He said the notion that Trivedi could not find an Indian chef in Australia was “risible” and the obvious purpose for the 45-year-old to be trafficked into Australia was for his exploitation.
“Mr Ram was kept by his employer in conditions akin to slavery,” he said.
“When the Department of Immigration eventually investigated his circumstances, its officials were fobbed off with lies and fabricated documents. It was only when Mr Ram escaped and went to the police that action was taken.
“This points to a failure of public administration and raises questions about the integrity of the class 457 visa program.”
Mr Ram complained to the Fair Work Ombudsman, but remarkably it did not sustain his complaint because it relied on the time and wage records provided by Trivedi and could not identify any underpayment.
Mr Ram — who has been granted a permanent witness protection (trafficking) visa to remain in Australia with his family — told the court he had been threatened that if he did not do as he was told, Trivedi would take his house and property in India and sell it, harm his family and have him arrested when he returned to the country.
Justice Driver ordered Trivedi to pay $186,000 to Mr Ram in back-pay, entitlements and interest. He could also face penalties under the Fair Work Act. Trivedi had earlier escaped with a $1000 fine and 250 hours of community service after pleading guilty to trafficking offences in 2011.
David Hillard, the pro bono partner at law firm Clayton Utz, which acted for Mr Ram, said the facts of the case were shocking but he was thrilled with the decision. “The thing that keeps striking me is that this stuff is happening right now in our community under our noses,” he said
“This was a suburban Sydney restaurant that had a man working 12 hours a day, seven days a week, and living in their kitchen.”
Mr Hillard said it was the first Australian case of which he was aware that a person who had been trafficked for labour purposes had obtained compensation.
He said it was difficult to see how such litigation could be run without the assistance of a large pro bono team.
“It’s a real example of where the Fair Work Ombudsman should have been able to get this resolved and it wasn’t,” he said.