Discussion document

The discussion document notes the factors that make people vulnerable to people trafficking and discusses provisions for protecting victims and helping them to re-establish their lives. The document summarises current policies and programmes to protect victims of people trafficking and lists areas where further policies and processes may be required. These include victim identification, privacy, physical safety and multi-agency services. With regard to settlement, the document discusses the key elements for safely returning victims to their countries of origin and notes that victims may need to remain in New Zealand in some circumstances.

Submitters were asked what other protection and settlement measures could be included in a plan of action, how the NGO sector should be involved, and what criteria should balance the decisions about whether victims of trafficking should be returned to their home country or supported to remain in New Zealand.

Protection

There is considerable overlap in submitter comments on the measures required to prevent people trafficking and the measures required to protect the victims of people trafficking.

Prevention and protection are linked in as much as both require ongoing effective awareness raising campaigns warning of the potential dangers of trafficking as well as offering assistance to those already trapped within trafficking. [Salvation Army]

Submissions on the protection measures that should be included in a plan of action identify a need for:

• a national mechanism for identifying victims of people trafficking and referring them to appropriate support services
• outreach services to help identify possible victims and encourage them to come forward
• protection of the rights of victims once they have been identified, particularly while investigations and any court proceedings take place
• access to specialist support and assistance
• access to asylum procedures.

Submitter comments on outreach services and protecting the rights of victims during prosecution are discussed in section 4. Submitter comments on the other protection measures are discussed below.

Identification and referral mechanism

A number of submitters identify a need to develop a protocol or procedure for identifying and responding to possible victims of trafficking. They see early identification as essential to protecting victims of people trafficking and preventing further abuse.

I would suggest that the prompt and accurate identification of victims lies at the heart of successful responses to human trafficking, and that this be articulated in the Plan. Once identified, victims can not only be provided with support, but, as noted in Para 90, vital information can be gathered for the identification of traffickers and trafficking networks. Further, information can be gathered to better target prevention activities. [Individual Submitter B]

Early identification and referral of victims is critical to protecting men, women, and children from exploitation and abuse. [Rebecca Miller]

Amnesty International Aotearoa New Zealand proposes a coherent, nationwide mechanism that involves trained and qualified personnel and ensures the human rights of victims are protected. It recommends that procedures include "assessment of their urgent needs and their ability to participate in questioning or interrogation, as well as referral to appropriately trained professional service providers." It also submits that those suspected of being trafficked for sexual exploitation be entitled to the same best practice procedures from the New Zealand Police as other vulnerable persons such as rape victims. It recommends making use of the expertise built up by specialist police units in other countries, such as the United Kingdom, in developing identification and referral procedures.

Other submitters comment that minimum guidelines for interviewing possible victims of people trafficking should be developed, which should include having a support person present and, for women and girls, ensuring a female is present during the interview. A number of submitters comment that victims need to be informed of their rights, with information provided in their own language. One submitter considers that victims would benefit from a "safe and solid avenue of contact" with an Ombudsman-type authority.^[8]

Some submitters comment that possible victims of people trafficking should not be treated as illegal migrants or penalised in any way. Submitters consider that visas should be issued enabling victims to legally remain in New Zealand for the duration of any legal proceedings and until suitable resettlement measures are agreed.

In order for non-governmental organisations to bring forward evidence of exploitation there need to be a transparent system where migrants and NGOs assisting them are confident the government will protect them from expulsion and victimisation while they bring a complaint, and will provide a right to remain in New Zealand if a complaint is upheld. [New Zealand Council of Trade Unions]

One submitter comments that while the plan of action should proceed on the assumption that trafficking exists, consideration also needs to be given to managing a situation where a person lies about being trafficked.

Access to specialist support and assistance

Many submitters consider that victims of people trafficking should be provided with protection and access to support services and assistance as soon as they are identified. Some comment that the victim's immigration status or willingness to give evidence against their traffickers should not affect their entitlement to protection and support.

World Vision New Zealand expresses the view that protection measures should be available to victims overseas, as well as in New Zealand:

People trafficking is a transnational crime, and many victims may not be located in New Zealand; for example trafficked children in forced labour in a New Zealand owned factory overseas, or children forced into underage prostitution and involved in the prosecution of a New Zealand sex tourism offender. We submit that the Plan of Action should also provide for the needs of these victims. We recommend working closely with NGOs that have relevant field operations or experience to help determine what is necessary and appropriate. [World Vision New Zealand]

Access to asylum procedures

Several submitters comment that victims of people trafficking may have a well-founded fear of persecution if they are returned to their home country and therefore require access to asylum procedures in New Zealand. They note that the possibility that a victim of trafficking may meet the definition of a refugee is implicit in Article 14.1 of the Trafficking Protocol, which states:

Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.

Richard Towle, UNHCR, notes that a claim for international protection could arise in a number of circumstances and that each case must be examined in detail to determine whether the harm feared as a result of trafficking amounts to persecution. It comments that:

• trafficking involves acts that are serious violations of human rights and may amount to persecution

Inherent in the trafficking experience are such forms of severe exploitation as abduction, incarceration, rape, sexual enslavement, enforced prostitution, forced labour, removal of organs, physical beatings, starvation, the deprivation of medical treatment. Such acts constitute serious violations of human rights which will generally amount to persecution or breaches of other international human rights obligations. [Richard Towle, UNHCR]

• even if the trafficking was a one-off past experience, it may still be appropriate to recognise a person as a refugee if, for example, "the persecution suffered was "particularly atrocious and the individual is experiencing ongoing traumatic psychological effects which would render return to the country of origin intolerable"
• the victim's cooperation with authorities may give rise to a risk of harm from the traffickers upon return, or reprisals on family members, either of which could amount to a well-founded fear of persecution depending on the seriousness of harm and human rights violations involved
• a victim's willingness, or lack of willingness, to provide evidence against traffickers should not be taken into account in determining refugee status.

Amnesty International Aotearoa New Zealand submits that a fair determination process for victims of people trafficking requires that:

• victims have access to lawyers with training in dealing with trafficking cases
• reference is made to appropriate asylum gender guidelines
• suitable mechanisms are in place for assessing the risk of persecution/re-trafficking in the source country
• staff at Immigration New Zealand, the Appeals Authority and any other agencies involved in the process are trained in dealing with victims of trafficking.

The Human Rights Foundation comments that care needs to be taken not to characterise those who use irregular migration channels as criminals.

While the majority of irregular movements may be accurately characterised as illegal and criminal, international law states that the use of irregular migration channels by refugees cannot incur criminal charges. Blurring these distinctions contributes to the erosion of the right to asylum, in breach of international law. Seeking asylum is not illegal, as the discussion document implies. [Human Rights Foundation]

Other comments

The IGC notes that the United States has recently extended its approach to people trafficking beyond the "three Ps" of prevention, protection and prosecution by adding the "three Rs": rescue, rehabilitation and reintegration.

I would particularly stress the rescue element, there are many instances whereby enforcement authorities simply treat victims as illegal migrants and do not pick up on the trafficking element; hence rescue could often take place at a much earlier stage (suspicious visa interviews, ports of entry, labour inspections, etc.), the new elements of rehabilitation and reintegration (which has to be understood both in the country of origin or the destination country) simply stress that even more needs to be done to take care of the victims once they are discovered. [IGC]

Another submitter comments that illegal migrants should be protected from poor working conditions, for example a lack of protective clothing for horticulture workers and cleaners.

Settlement

Repatriation or resettlement

Many comments on settlement measures focus on the question of whether victims of people trafficking should be repatriated or enabled to remain in New Zealand.

A number of submitters take issue with the discussion document's statement that "a positive outcome for victims is repatriation with a sustainable future." They argue that repatriation should not be assumed to be the best option and that decisions should be made on case-by-case basis, in conjunction with the victim.

I suggest it is not a good starting point for the Plan to be claiming knowledge of what constitutes a positive outcome for the victim. A human rights based response involves working with the victim to agree on what a positive outcome would be. [Individual Submitter B]

Some submitters highlight the risks associated with returning a trafficked person to their country or origin, including re-trafficking, reprisals and ostracism from family and community members. They comment that resettlement in New Zealand or a third country may be preferable in such circumstances.

Return seems to be the focus in your approach: however, as the greatest number of potential victims of trafficking in your context are young females from South East Asia being victims of sexual exploitation; return might lead to re-trafficking; several reports from IOM the US Trafficking In Persons Reports and other sources show that in the case of sexual exploitation of young South East Asians females close relatives or persons otherwise close were often the persons who established the contact with the trafficker; removing these victims from their familiar circle might greatly contribute to improving their situation. [IGC]

As noted earlier in the report, some submitters express concern that the prospect of being returned home may prevent some victims of people trafficking from coming forward and seeking assistance. They comment that this is neither in the interests of the victim or New Zealand.

Victims will not come forward unless they feel safe in doing so and know that they are not going to be penalised by a forced return to their country of origin. Therefore we recommend that victims be allowed to settle in this country. [Zonta International District 16]

Submitter comments on the criteria that should be taken into account in making decisions about whether or not a victim should be returned home or supported to stay in New Zealand are discussed below.

Support and assistance

Some submitters comment on the support and assistance required to assist the rehabilitation of victims back to a normal life. Submitters suggest that the following support and assistance be provided to all victims of people trafficking:

• restoration of passports, travel documents and their possessions
• access to counselling
• services to respond to the high level of physical, psychological and emotional trauma experienced by victims (discussed above)
• temporary residence and work permits for up to six months to allow for their recovery
• either provision to stay in New Zealand permanently or financial assistance to return home.

Other comments

Some submitters identify a need for greater cultural awareness and understanding. The New Zealand Nurses Organisation comments on migrant settlement generally. It expresses concern about the value of the International English Language Testing System (IELTS) as an indicator of communication skills in the workplace and successful migrant integration, and notes that some workplaces are experiencing an upsurge in racial tension.

NZNO is also aware that, in spite of quite dramatic changes in the nature of immigration in terms of numbers, skill levels and source countries over the past few decades, there has been little attempt to educate or promote cultural awareness between migrants and New Zealanders. New Zealand lacks coherent policy and strategies around the interface between migrant and indigenous workforces and NZNO is increasingly concerned about the racially explosive situations in the workforce and communities which are developing as a consequence. [New Zealand Nurses Organisation]

NGO involvement

Partnerships across spectrum of anti-trafficking activity

Many submitters see NGOS having an integral role in a plan of action to combat people trafficking. Submissions emphasise the development of partnerships and NGO involvement in the full spectrum of activity, including:

• development and oversight of the plan of action
• research and information gathering
• education and awareness raising
• identification and referral of victims
• provision of social services and support
• assistance with return and repatriation.

Some submitters note that a number of NGOs are already working to prevent people trafficking and that New Zealand should make use of existing knowledge, experience and networks.

The new emphasis in Australia is for all agencies to co-operate closely and especially to capitalize on the knowledge of the various NGOs working in this area. An on-going forum is to be maintained for developing Govt policy and keeping an eye on emerging trends in other trafficking areas. A working group will be set up to develop guidelines for NGOs and welfare

groups who work with victims. A parallel implementation of all of these measures should be considered in any New Zealand anti-trafficking system. [Zonta International District 16]

Partnerships at all levels - as indicated in the report. The experience of NGOs in other jurisdictions indicates that NGOs are often the first responders to people who have been trafficked, are the predominant service providers, and are key agencies in providing prevention and re-integration programs. [Sister Anne Phibbs]

Specific suggestions are to:

• enlist the support of community leaders
• encourage ethnic communities to become involved
• consider the use of liaison officers/roles within migrant groups
• support organisations who are likely to become aware of incidents (for example, the Prostitutes Collective and Shakti) to have a key role
• engage existing networks through the New Zealand Federation of Ethnic Councils, Refugee and Migrant Service and ethnic social services.

Some submitters note that funding would be required to support NGO involvement in anti-trafficking initiatives, which could include funding for existing projects. Attendees at consultation meetings commented that there is currently provision for short term victim support by NGOs but that victims require longer term support given the nature of trafficking crimes and their potential involvement in judicial processes.

Comments on specific roles

Standards and training

Some submitters consider that standards should be established to guide NGO activity and ensure that all organisations are working to the same set of principles. Suggestions include clearly defining roles and expectations and establishing a mechanism for vetting potential partnerships. As discussed earlier in the report, submissions also identify a need for training for service providers and others involved in assisting victims of people trafficking.

It is important that a mechanism be established to vet potential partnerships to ensure that agencies cooperating in the NPA adhere to a common set of standards and principles. [Lance Bonneau]

Criteria for immigration decision-making

Focus on human rights and best interests of the victim

As noted above, many submitters address the question of whether victims of people trafficking should be repatriated or supported to stay in New Zealand. A number of submitters consider that the emphasis of decision-making should be on the rights and best interests of the victim.

It is important to weigh the victim's interests in returning home as opposed to staying in NZ, but the emphasis should always be on the best interest of the victim. [Shakti Community Council]

For some submitters, a human rights approach to decision-making means that the primary consideration should be whether the victim is able to return safely to their home country, without any fear of reprisal or risk of re-trafficking. They consider that victims should not be returned home in such circumstances. Some submitters note that women and children are particularly vulnerable to further exploitation or re-trafficking.

The fundamental criterion of human rights should underpin all decisions and service provision. A trafficked person has experienced grave violation of her/his human rights and these should not be further violated by the government processes, nor should a person be repatriated if there is any possibility of further violation or of re-entry into the trafficking scene. [Sister Anne Phibbs]

Others focus on the views and preferences of the trafficked person. While a number of submitters identify the victim's wishes as a factor to be taken into account, others consider that victims should be empowered to make their decision and have the right to choose whether they return home or stay in New Zealand regardless of their circumstances.

In our view, humanitarian and compassionate considerations must balance this decision, as required by the Trafficking Protocol. Some victims may well wish to return to their home countries, and as far as possible, they should be provided with assistance for that purpose. However some victims may well be so traumatised, or face threats to their lives or wellbeing in their own country, that it may be inhumane to take steps to return them. [Anglican Action]

Victims of trafficking to New Zealand should receive a choice of staying with support or returning to their own country with safe provisions as set forth. For people who have lost their rights and been denied power, it is very important to restore these as soon as possible. [Catholic Social Justice Group, combined Catholic parishes of Rotorua]

Factors to be taken into account

Submitters identify the following range of factors as relevant when deciding whether a victim should be repatriated or supported to stay in New Zealand:

• the wishes of the victim

All victims should be consulted, with due weight given to age and maturity, as to whether they want to stay in New Zealand, go back to their home community, or be relocated to another community. [World Vision New Zealand]

• the level of support available in the home country and in New Zealand
  • family and community support if repatriated
  • reintegration assistance and support networks
  • any ongoing health care needs, and where that care is best provided
• family circumstances
  • any New Zealand born children
  • number of dependents
• the nature of the trafficking experience
  • the circumstances that led to the person being trafficked, including any debt
  • the extent/seriousness of their exploitation in New Zealand
• consequences of return home
  • likelihood of being returned to the power of the person/s who exploited them and/or re-trafficked
  • possibility of reprisals
  • impact on their social status
  • employment prospects

  The victim's ability to reintegrate into their original society should be taken into account. E.g. prostitution may mean victims are excluded from normal society in their country of origin. [Zonta International District 16]

• protection afforded by the home country
  • stability of the home country, and any threats to security
  • whether authorities willing and able to protect the victim
• age of the victim

  Children may be less able to understand what has happened to them, care for themselves and resettle into their home communities. [World Vision New Zealand]

• ability to settle in New Zealand
  • adaptability and ability to fit in to New Zealand society
  • links to their own ethnic community
  • English language skills
  • potential to enter labour force and become self-supporting
• New Zealand's international obligations
• other factors
  • ability to pass a security and criminal check
  • the apprehension of the traffickers.

Other comments

A few submitters note that resettlement in New Zealand is not the only alternative to repatriation and that consideration should also be given to temporary residence in New Zealand while the victim recovers or is given skills training, and to relocation in a third country.

One submitter expresses concern that providing an avenue for victims to stay in New Zealand may create a "loophole" that could be exploited by others. Other submitters, on the other hand, comment that victim numbers are likely to be small and that enabling them to stay will have little impact on the settlement resources required of New Zealand.

Given the low number of likely victims overall, provided Immigration New Zealand is satisfied no fraud is involved, giving victims the choice to stay is unlikely to have a major impact on the country. [Andre Anderson]

One submitter suggests that being allowed to stay in New Zealand could be made dependent on the victim's full cooperation with the prosecution process. Other submitters, however, are strongly of the view that victims should not be required to participate in investigations and judicial proceedings.