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Restaurant Association chief executive Marisa Bidois talks about exploitation in the industry. / Doug Sherring
An Auckland business owner was sentenced to four years in prison for visa violations, worker exploitation and corruption.
Victims faced long hours and underpayment, fearing their illegal status would affect future visas.
Her lawyer argued that, as a fa’afafine, the defendant faced unique cultural pressures that contributed to her poor choices.
An Auckland business owner bribed employees at Immigration New Zealand’s Samoa office to help her illegally recruit overseas labourers whom she later underpaid and exploited.
The defendant, whose identity remains secret pending a hearing next month to determine her application for permanent name suppression, is now in prison after sentencing last week for a slew of visa violation, employer abuse and corruption charges.
Victim impact statements from four of the defendant’s former employees all described how their excitement about earning a better living in New Zealand turned to fear and trepidation upon realising – after they had already arrived – that they were not here legally.
“He states he often felt he didn’t have a choice,” Auckland District Court Judge Jelas said of one victim, who described sometimes working 12 hours at a time seven days a week. “Her control over him made him feel as though he was trapped.”
The judge agreed that each of the workers had suffered daily stress as a result of the predicament the defendant put them in and continue to feel anxiety even now, fearful that their history of illegal work will make it more difficult to obtain visas in the future.
“The significant trust they placed in [her] has been abused,” she said, ordering a sentence of four years’ imprisonment.
Cash hidden in paperwork
The business owner was first charged in 2021 following an Immigration New Zealand investigation into her employment practices, with additional charges filed a year later. Authorities examined a seven-year period, during which she would frequently travel to Samoa.
“As part of the recruitment process, [she] would either directly or indirectly sponsor a worker’s visitor visa; manage the process of applying for visas through Immigration New Zealand (INZ); and pay for their visa-related fees and airfares,” court documents state. “[She] would often use her own extended family or friends to sponsor the workers.”
An Auckland business owner is sentenced in Auckland District Court after pleading guilty to migrant worker exploitation and bribery of Immigration NZ employees in Samoa. Photo / Jason Dorday
What she didn’t tell the recruits was that the visas she had obtained for them didn’t allow employment.
When they arrived in New Zealand, the employees were told they’d be paid a flat rate of $100 per day. The business, meanwhile, charged between $17 and $25 per hour for the workers’ services. She breached minimum wage requirements, although not by enough to result in additional charges, Judge Jelas said.
“I point out any shortfall, for a worker earning a minimum wage, is significant,” the judge added.
But it was lack of holiday and sick leave pay that was the basis of the exploitation charges. Authorities calculated she owed the six listed victims just over $17,000. She came to court with $4000 – all that she could afford, she said.
It is not known how frequently the defendant paid off Immigration NZ employees in Samoa or how much total money was put towards corruption. But one employee recalled her telling him about the bribes as early as 2014. She said in court last week that she would pay $500 or less at a time.
“She would pay money directly to contacts, who would issue visas at her request or otherwise give favourable treatment,” according to the summary of facts for the case.
Sometimes, the cash would be placed inside the paperwork as it was handed over to the Immigration NZ employee.
“While I accept they weren’t substantial payments, in terms of the monetary situation in Samoa they would have been highly valuable to the recipient,” the judge said.
Good intentions, bad execution
Defence lawyer Esther Kim emphasised to the judge that her client’s background was crucial to understanding her mistakes.
Although a New Zealand resident, she was raised as a fa’afafine in a small Samoan village to which she still has many ties. Much more than just gender roles, fa’afafine live with the expectation that they are to take care of their extended family and their community, Kim said.
So when people approached her looking for work during her frequent visits back home, the lawyer suggested that her background made it especially difficult to say no.
“This was driven by her desire, really, to assist her community,” Kim said. “She fully accepts it was not done in the correct way.”
She noted that the workers who stayed with her client were never asked to pay rent.
“There’s a nexus here between these cultural and family factors and how the offending came about – the pressure she felt as a fa’afafine,” Kim said.
Kim noted that her client was assessed as being a low risk of reoffending and a high likelihood of complying if she was to be given a non-custodial sentence.
The defendant also blamed her lack of business experience.
Crown prosecutor Emma Barnes countered that it clearly wasn’t all misplaced altruism that led to the defendant’s charges. There was also an element of commercial gain, she argued.
“The suggestion of helping the community and having good intentions does slightly conflict with what is outlined in some of the victim impact statements,” Barnes said.
Shame, devastation
None of the defendant’s former employees appeared in court on Friday, during what turned out to be a four-hour hearing.
Three are now in New Zealand lawfully, while the other three mentioned in the charges are back in Samoa but hope to return, the Crown said. Some of them started families while in New Zealand that they would like to return to.
While their victim impact statements weren’t read aloud in court verbatim, Judge Jelas extensively summarised each one before announcing the sentence.
The defendant’s longest-serving employee described working for three months at a time, then repeatedly returning to Samoa to apply for another visitor visa.
“He feels he worked hard for [her] and was exploited by her in return,” the judge noted.
Another employee, referred to by the initials DS, described the stress he felt upon realising how precarious his situation was in New Zealand.
“He feared being deported and the shame this would bring to his family,” the judge said. “He was devastated.”
The worker recalled difficulty getting days off when he worked for the defendant, even when he was sick.
Another worker, GP, described how he “relished the opportunity to come to New Zealand” because he was the sole provider of his parents and four younger siblings and could only find a low-wage job in Samoa.
The judge noted “the complete trust he placed in [the defendant], believing that she was giving him an opportunity to change his life”. But upon arriving in New Zealand, he realised he had no rights and was unfairly paid. He feared getting in trouble if he sought help.
The judge, however, disagreed. Mistreatment, she explained, is implicit in the charge of exploitation, which the defendant pleaded guilty to.
“I understand there was never a disclosure, ‘You’re coming to New Zealand to work illegally and I’ll control your finances’,” she said.
Auckland District Court Judge June Jelas at the sentencing for a small business owner who pleaded guilty to labour exploitation and corruption of Immigration NZ employees in Samoa. Photo / Jason Dorday
The judge agreed with the Crown that there was an element of commercial gain, although noting that the defendant didn’t live a lavish lifestyle. Some of the money she took might be considered equivalent to a management fee, she acknowledged.
While there might have been some additional pressure to help her community, Judge Jelas noted it’s not unique to fa’afafine. Anyone from the Pacific living in New Zealand would feel enormous pressure to support family back home, she said.
At any rate, the judge said, the defendant already fulfilled her obligations to her community with her high-rank volunteer work in a large Pasifika organisation.
The judge acknowledged there had been shame and remorse on behalf of the defendant, but that had to be weighed against the “significantly long period” of offending and the significant level of premeditation that was needed to pull off international employment fraud.
“There was complete disregard and blatant breaches of the Immigration Act” and “long-term consequences” for those she recruited, Judge Jelas noted.
The defendant faced up to seven years’ imprisonment for each of the 12 charges she pleaded guilty to: five counts of aiding and abetting the breach of visa conditions, six counts of exploitation of an unlawful employee and one representative charge of corruption of a public official.
Judge Jelas settled on a starting point of four years for the visa violation charges, with uplifts of 18 months for worker exploitation and two years for encouraging corruption. She allowed credits of 10% for the defendant’s guilty pleas shortly before trial, 10% for remorse and her $4000 reparation payment and 5% for cultural factors that may have contributed to her offending.
She also allowed discounts for the four years she spent on bail and for the unique difficulty a custodial sentence in a male prison will present for someone who is fa’afafine.
The judge did not allow a discount for prior good character, pointing out that the defendant had been to prison before.
The result was a sentence of four years in prison.
Immigration NZ acting general manager Immigration Compliance and Investigation, Michael Carley, said sentencing concludes a five-year investigation that was initiated in 2020 after a complaint was received through Crimestoppers.
He said the sentence sends a clear message that immigration fraud, migrant exploitation and corruption will not be tolerated.
“The callous exploitation of vulnerable migrants and the corruption of public officials, is not just unethical – it’s criminal and we will work with our partner agencies both onshore and offshore to take all necessary action to hold those responsible to account.”
“We encourage anyone with any knowledge of immigration fraud or exploitation to come forward. To make a report, contact the MBIE reporting line on 0800 200 088. To report an issue anonymously, call Crimestoppers on 0800 555 111.”
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
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