Friedman v Minister of Labour, Home Affairs and Public Safety and Others

• Jurisdiction: Bermuda
• Judgment Date: 10 December 2004
• Date: 10 December 2004
• Docket Number: Civil Jurisdiction 2003 No. 345
• Court: Supreme Court (Bermuda)

Between:

Ian David Friedman

Plaintiff

and

Minister of Labour, Home Affairs & Public Safety

1^st Defendant

and

The Cabinet Appeals Tribunal

2^nd Defendant

[2004] Bda L.R. 51

Civil Jurisdiction 2003 No. 345

In The Supreme Court of Bermuda

Revocation of work permit — Criminal conviction for using offensive words — Natural justice

The following cases were referred to in the judgment:

Shareef v Commissioner for Registration of Indian and Pakistani Residents [1966] AC 47

Mak Skik Kwong v Minister of Home Affairs, Malaysia [1975] 2 MLJ 175

Russell v Duke of Norfolk [1949] 1 All ER 109

F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295

Marks v Minister for Home Affairs 1983 Civil Appeal No. 12

R v Jahelka (1988) 43 DLR (4th) 111

Jones v Procurator Fiscal [2004] Scot HC 25

Mucklow v Minister of Homes Affairs 1978 Civil Appeal No. 2

Bagga Khan v Secretary of State for the Home Department [1987] Imm AR 543

Mr. M Smith for the Plaintiff

Mr. W Bourne for the Defendants

JUDGMENT of Kawaley, PUISNE JUDGE

Introductory

On August 21, 2003, I granted leave to the Plaintiff to issue an Originating Summons, which was duly issued under the Administration of Justice (Prerogative Writs) Act 1978 on October 10, 2003. I also granted an interim stay of the decisions complained of.

The Plaintiff seeks orders of certiorari, prohibition and mandamus to quash the June 4, 2003 decision of the First Defendant (affirmed on appeal by the Second Defendant) to revoke his work permit, to prohibit the Defendants from enforcing the said decisions and to direct the Defendants to reconsider their decisions in accordance with the rules of natural justice.

He complains in essence that he was not given an adequate opportunity to make representations to the Minister as to why his work permit should not be revoked in partial reliance on certain complaints filed with the Ministry. This is because the letter inviting him to make representations suggested that the only ground for the proposed revocation was his recent conviction for offensive words in the Magistrates Court, when in fact other matters were also relied on.

This narrow point of law, which turns on facts that are mostly agreed, was concisely argued by both Counsel.

Factual Matrix

The following facts are not in dispute.

On June 11, 2002, the Plaintiff was convicted in the Magistrates Court of using offensive words and gestures in a public place contrary to the Summary Offences Act, and fined $900.

By letter dated March 24, 2003, the Minister sent the Plaintiff a letter which stated in material part as follows:

“The Department of Immigration has received information that you were convicted in Magistrate's Court on June 11, 2002 for using offensive words and gestures in a public place namely Burnaby Hill, and fined $900.

As a result of the above information, the Minister…intends to consider revoking his permission for you to reside and work in Bermuda.

You are therefore, invited to submit in writing within fourteen (14) days, any representations you may wish to make to the Minister as to why his permission should not be revoked.

If no representations are received within the period stated above, the Minister will proceed to consider the matter in light of the information then available to him.”

On April 28, 2003, the Plaintiff's then attorneys, Wakefield Quin, responded to the March 24, 2003 letter which was received on April 25, 2003, dealing almost exclusively with the criminal conviction. It was suggested that as Head Chef at the Barracuda Inn, he was of value to Bermuda's tourist industry and a resource for trainee Bermudian chefs. His wife was employed at a prominent exempted company and his daughter was in school in Bermuda. It was hoped that “the Minister may, in this instance, consider that Ian, despite this conviction in the Magistrates Court is a worthwhile individual who…will not have any further encounters with the law of this ilk…”

By letter dated June 4, 2003, the Minister advised the Plaintiff as follows:

“The Minister… has considered the contents of your representations together with all relevant matters available to him and after careful deliberation has decided to revoke his permission for you to continue to reside and work in Bermuda.

Therefore, you are advised that the Minister now directs that you together with your family settle your affairs and leave Bermuda on or before JULY 4, 2003.”

Seven days later, Smith & Co. appealed the June 4, 2004 decision (“the Decision”) by letter addressed to the Cabinet Office. The June 11, 2003 appeal letter expressed the view that the decision was harsh if it were based solely on the conviction for a “relatively minor offence”, and submitted that it appeared from the terms of the Decision that it “may have been based upon further allegations about which we have no specific knowledge”. The Plaintiff's attorneys asked to be informed of what these other matters were so that they might be addressed. Numerous references were attached to the appeal letter.

By letter dated July 9, 2003, the Cabinet Office advised that the Cabinet Appeals Tribunal had refused the Plaintiff's appeal on July 8, 2003.

In his September 29, 2003 Statement in support of his Originating Summons, the Plaintiff asserts that the Decision is both unreasonable and in breach of the rules of natural justice. In paragraph 4 he asserts:

“The statement that “all relevant matters” were taken into account by the 1^st Defendant would seem to be indicative that there was other information that formed the basis of the 1^st Defendant's decision, information which I had not been made privy to. This was of great concern to me as there was no way that I could respond to or address information that has never been disclosed to me. Aside from the 1^st Defendant's statement, my belief that other information-not disclosed to me-was used by the 1^st Defendant in reaching his decision is not mere suspicion or paranoia on my part. On several occasions over the past eighteen months, the complainant in the criminal matter for which I was convicted in the Magistrates Court, has informed me, my employers and my wife that it is ‘his mission’ to have me thrown off the island. In addition, given the relatively minor nature of my conviction, I would be shocked if the mere fact of my conviction was the only basis for the 1^st Defendant's decision to remove my right to work and reside in Bermuda.”

The Defendants responded through the Affidavit of Dr. Martin Brewer, Chief Immigration Officer, sworn on April 21, 2004. In paragraph 7 of this Affidavit, Dr. Brewer deposes:

“The assertion made by the Applicant that, quote ‘The statement that “all relevant matters” were taken into account by the 1^st Defendant would seem to be indicative that there was other information that formed the basis of the 1^st Defendant's decision, which information I had not been made privy to’, is not correct. The Department of Immigration (‘the Department’) received several complaints about the applicant's use of foul language, obscene gestures, inappropriate and unacceptable behaviour in a public place, dating from April 2001. The Department of informed the Applicant about the various complaints made against him…”

After referring to an exhibited example of one such complaint dated April 6, 2001, Dr. Brewer goes on to depose in paragraphs 8 and 12 of his Affidavit as follows:

“The Department views the conviction of a person for the use of offensive words and offensive gestures in a public place together with a history of similar behaviour, as a serious matter…The Department did not consider any information that the applicant was not aware of.”

The Plaintiff's Case

Mr. Smith referred to section 10 of the 1978 Act in support of the submission that English law on the remedies sought applied.

He submitted that on the facts, it was clear (a) from the terms of the Decision itself and (b) from the admissions made in the Brewer Affidavit, that matters other than the Plaintiff's conviction formed the basis of the decision to revoke his work permit.

This was a significant breach of the rules of natural justice with implications not just for the Plaintiff, but generally. It was unsatisfactory that anonymous complaints which work permit holders had no opportunity to refute could form the basis of such...