The first person to be charged with trafficking offences under Division 271 of the Criminal Code (Cth) was Mr Yogalingham Rasalingam of Glenbrook in the Blue Mountains, west of Sydney, NSW. Mr Rasalingam, an Australian citizen, was the owner Yoga Tandoori House Pty Ltd, a chain of four Indian restaurants in the Blue Mountains. He was accused of bringing another man (Mr A R) from his home town in southern India to Australia to work in his restaurants in circumstances amounting to human trafficking. In the employment arrangement between the two men, Mr R agreed to working 365 days a year, without payment for the first year, but that during this time Mr Rasalingam would provide money to the victim’s family each time he returned to India. (Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009 (2009) 69.)
Mr Rasalingam directed his victim to a particular travel agent in India who made all the necessary arrangements, including obtaining a visa to enter Australia. Mr R, however, allegedly never signed a visa application nor any other documentation in relation to his intended travel. The travel agent did instead ask him to sign his name seven times on a blank piece of paper. This piece of paper was found later during a search of one of Mr Rasalingam’s restaurants. The paper had three signatures on it and part of the page had been cut out. Other documents relating to a falsified visa application and work contract were also found. The Department of Immigration and Citizenship (DIAC) found that a visa application and work contract had been submitted to them on behalf of the victim. (Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009 (2009) 69.)
Mr R arrived in Australia on June 1, 2006. In a related application for civil penalties, evidence was submitted that he came to Australia with none of his own money, virtually no English language skills, no appreciation of his legal entitlements and in a position of dependence in relation to Mr Rasalingam in respect of food, money, accommodation and transportation: Fryer v Yoga Tandoori House Pty Limited [2008] FMCA 288, [10]. During the trial, the victim testified that upon arrival his passport, airline ticket, and other documents were taken away from him, he was forced to sleep on the floor, and was told by Mr Rasalingam that he would be deported if he complained to the authorities. He was forced to work seven days a week, sometimes for more than 15 hours a day. Mr Rajendran never received any payment and there was no evidence to suggest that any money had ever been transferred to his family in India. (Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009 (2009) 69; James Madden, ‘Chef was “forced labour”’ (10 Oct 2007) The Australian, 5; David King, ‘Cook made deal to work 365 days a year’ (11 Oct 2007) The Australian, 3; Kim Arlington, ‘Chef told: work like a machine’ (11 Oct 2007) The Daily Telegraph (Sydney), 13; Fryer v Yoga Tandoori House Pty Ltd [2008] FMCA 288).
When Mr R was found, he had been working for approximately one month (Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009 (2009) 69).
Section 271.2(1B) Criminal Code (Cth)
Section 135.1(7) Criminal Code (Cth)
District Court of New South Wales
Official case reports
Fryer v Yoga Tandoori House Pty Ltd [2008] FMCA 288.
R v Yogalingam Rasalingam (District Court of New South Wales, Judge Puckeridge, 10–11 October 2007).
Secondary sources
Arlington, Kim, ‘Chef told: work like a machine’ (11 Oct 2007) The Daily Telegraph (Sydney), 13.
Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009, Canberra, ACT: Commonwealth of Australia, 2009.
Australia, Commonwealth Director of Public Prosecutions, Annual Report 2007–08, Canberra, ACT: Commonwealth of Australia, 2008.
David, Fiona, Labour Trafficking, Research and Public Policy Report No 108, Canberra, ACT: Australian Institute of Criminology, 2010.
Debeljak, Julie et al, The Legislative Framework for Combating Trafficking in Persons, Clayton, Vic: Castan Centre for Human Rights, Monash University, 9 Sep 2009.
King, David, ‘Cook made deal to work 365 days a year’ (11 Oct 2007) The Australian, 3.
Madden, James, ‘Chef was “forced labour”’ (10 Oct 2007) The Australian, 5.
Scheikowski, Margaret, ‘Restaurant fined $18,200 for exploiting overseas worker’ (17 Mar 2008) Australian Associated Press General News (Sydney),.
Schloenhardt, Andreas et al, ‘Human Trafficking and Sexual Servitude in Australia’ (2009) 32(1) University of New South Wales Law Journal 27.
Schloenhardt, Andreas et al, ‘Trafficking in Persons in Australia: Myths and Realities’ (2009) 10(3) Global Crime 224.
The case of Mr Rasalingam was the first prosecution for a trafficking in persons offence since they were introduced in 2005 and thus the offence had never been tested in court before. A point of contention during the trial was whether the circumstances amounted to exploitation as required by s 271.2(1B) Criminal Code (Cth). Fiona David, referring to unpublished court transcripts, states that ‘the Crown case was that the accused had implicitly threatened the complainant with deportation should he leave his employment.’ Key evidence given by Mr R (the victim) suggested that it was his understanding that he had to stay and work for four years on the basis that some money would be sent to his father and that he would get permanent residence in Australia after four years. He said Mr Rasalingam had told him the story of another person who had left their employer and who had then been sent home. (Fiona David, 'Labour trafficking' (AIC Report No 108, Australian Institute of Criminology, 2010) 18 citing transcript of proceedings R v Yogalingam Rasalingam (District Court of New South Wales, Judge Puckeridge, 10–11 October 2007).
Counsel for Mr Rasalingam argued that there was insufficient evidence to support a finding that a threat had been made or implied. The defence characterised the situation as one where the complainant had a concern that he might have to go back to India should he change employers. The defence noted that this concern arguably arises simply as a matter of Australian law (Fiona David, 'Labour trafficking' (AIC Report No 108, Australian Institute of Criminology, 2010) 18 citing transcript of proceedings R v Yogalingam Rasalingam (District Court of New South Wales, Judge Puckeridge, 10–11 October 2007).
Compensation and application for civil penalties
The victim, Mr R, received unpaid wages of AUD 11,560.31 after the commencement of investigation by a workplace inspector. These investigations also resulted in a successful application for civil penalty provisions against the business of Mr Rasalingam of AUD 18,200.00: Fryer v Yoga Tandoori House Pty Ltd [2008] FMCA 288.
This case has also been used for the Australian "Be Careful What You Pay For" campaign in 2011, see poster.