Kenneth Dill JR v The Chief Immigration Officer

• Jurisdiction: Bermuda
• Judge: Hellman J
• Judgment Date: 18 November 2016
• Neutral Citation: [2016] SC Bda 95 Civ
• Docket Number: CIVIL JURISDICTION 2015: No. 348,CIVIL JURISDICTION 2016: No. 192
• Court: Supreme Court (Bermuda)
• Date: 18 November 2016

[2016] SC (Bda) 95 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2016: No. 192

Between:-

Kenneth Dill JR

Appellant

and

The Chief Immigration Officer

Respondent

Mr Shawn G Crockwell, Chancery Legal, for the Appellant

Mr Philip Perinchief, Attorney General's Chambers, for the Respondent

Whether work permit violations — ss 57 and 71A Bermuda Immigration and Protection Act 1956 — whether Appellant employed persons to engage in gainful occupation when they did not have a work permit — whether, if they were employed, Appellant was culpable — whether person was employed when not remunerated — meaning of ‘person's first violation’ within s 71A(3)

(In Court)

Introduction

1 This is an appeal against a Decision Notice issued on 20 ^th April 2016 by the Respondent against the Appellant pursuant to section 71B(3) of the Bermuda Immigration and Protection Act 1956 (‘the Act’). The Decision Notice imposed a civil penalty of $35,000 upon the Respondent for four violations of section 71A(1)(c) of the Act. The violations consisted in employing persons, namely Nadine James (‘Ms James’) and Donovan James (‘Mr James’), to engage in gainful occupation when they did not have a work permit. The appeal is by way of Notice of Originating Motion dated 11 ^th May 2016. It is brought pursuant to section 71C of the Act.

Background

2 The Appellant was the proprietor of Changes Beauty Salon (‘Changes’), which he had successfully managed for more than 15 years. In 2012 he employed Ms James as a nail technician to develop the nail care section of Changes. She was a Jamaican national who was employed on a work permit. The Appellant stated that Ms James was constantly advising him to be careful of immigration laws and would not even answer the phone at Changes because this did not form part of the job description on her work permit.

3 The nail care section flourished, and in 2015 the Appellant and Ms James decided to spin it off into a separate business at separate premises, to be called Bella Bella Nail Salon (‘Bella’). They entered into a written partnership agreement dated 19 ^th September 2015 to operate the business, and by a contract of employment dated 1 ^st October 2015 the partnership hired Ms James to manage Bella.

4 Also on 1 ^st October 2015, the Appellant wrote to the Respondent requesting that the company name on Ms James' work permit be changed to Bella, and that her new position as partner with managerial duties be added to her job description. The work permit application, together with a couple of others which he had submitted for Bella, was returned as incomplete. He instructed one Barbara Tannock at Catalyst Consulting (Bermuda) to resubmit the completed applications, which she did. He assumed that their grant would be a formality.

5 Subject to the grant of work permits, Bella was due to open for business on 1 ^st February 2016. The Appellant understood that until a work permit was granted for Ms James she would continue to work at Changes.

6 Meanwhile the Appellant became unwell. He was in hospital intermittently from September through November 2015 and was readmitted to hospital in December 2015. In January and February 2016 he was at home convalescing, although he did visit his business premises from time to time.

7 Ms James was also in ill health. In January 2016 she advised the Appellant that she had to travel overseas for medical treatment. She provided him with a letter from her doctor dated 18 ^th January 2016 which stated:

‘ This is to certify that the above-named patient is being referred abroad for medical assessment and treatment not available in Bermuda. Mrs James will be off island from January 20th, 2016.

She will be required to remain off work for a period of up to six weeks postoperatively.’

8 Bella opened for business on 4 ^th February 2016. The Appellant appears to have understood that in the absence of Ms James and himself the sole person working there during that time would be a senior nail technician/supervisor named Marsha Finegan. She had been employed at Changes and the Appellant had obtained a work permit for her to work at Bella. Her job description included supervising daily operations in the absence of Ms James.

9 On 3 ^rd February 2016 Immigration Officers, acting on information received, had visited the premises of Bella and questioned Ms James about her presence there. Mr James was also present. When questioned by Immigration Officers, Ms James stated that she and her husband were preparing the salon in order for Bella to open for business, and that on the previous day she had trained a potential employee regarding acrylics and tools, and watched how she set up a nail station. Ms James stated that she believed that she was able to continue to work as manager of the business as Ms Tannock had submitted her application for a work permit. The Immigration Officers told Ms James that she should not be on the premises and should not be working there.

10 On 5 ^th February 2016 Immigration Officers returned to the premises and found that Ms James was working there again, servicing a client's nails.

11 Ms James and Mr James were both interviewed by Immigration Officers under caution. Mr James explained that for two years he had ordered and imported products for use at Changes, for which the Appellant had reimbursed him. He did so using the Appellant's CAPS Trader ID number, which is an identification number which the Customs Department allots to a trader. When Bella was formed, he applied for and obtained a separate CAPS Trader ID number for the new business, as Customs had advised that this was necessary.

12 Ms James admitted in interview that she did not have a work permit to work at Bella although she stated that she was aware that a work permit application authorising her to do so had been submitted.

13 Mr James stated in interview that he helped and advised his wife generally on business matters related to Bella. He had set up an email account for the business, and provided the password to the Appellant and Ms James so that all three of them would have access to the account. He had drafted at least one email on behalf of the Appellant and signed it in the Appellant's name. This was most likely an email to the Department of Immigration regarding Ms James' work permit application. Mr James also emailed the Department about her application in his own name. It emerged at trial that while the Appellant was unwell Mr James did various odd jobs for his businesses on an ad hoc basis such as putting up shelves.

14 Although still not fully recovered, the Appellant visited the premises of Bella on 6 ^th February 2016. He was surprised to learn from Ms Finegan that Ms James had been working at the premises on several occasions during the past week. On 12 ^th February 2016 Immigration Officers interviewed the Appellant under caution.

15 The Appellant and Ms James fell out. In March 2016 she left Changes — whether of her own volition or because she was dismissed is not clear. On 16 ^th March 2016 her work permit application in relation to Bella was refused and the Department of Immigration directed her to settle her affairs and leave Bermuda on or before 29 ^th April 2016.

16 Meanwhile, on 13 ^th April 2016 the Respondent issued a Warning Notice to the Appellant pursuant to section 71B(1) of the Act. The Notice stated that pursuant to section 71A(1)(c) of the Act the Respondent proposed to impose on him one civil penalty of $5,000 in relation to his first violation of the Act and three civil penalties of $10,000 each in relation to three subsequent violations. The Appellant had seven days within which to make representations to the Respondent.

17 Under section 71B(1)(b) the Warning Notice was required to give the Appellant notice of the reasons for imposing the penalty. The reasons given in the Notice were that on two separate occasions he had employed Ms James to engage in gainful occupation when she did not have a work permit, and that on two separate occasions he had employed Mr James to engage in gainful occupation when he did not have a work permit. Although this point was not taken by the Appellant, in my judgment the statement of reasons did not adequately inform the Respondent of the case he had to meet. It should have specified the date and type of work allegedly undertaken on each occasion.

18 The Appellant made representations to the Respondents by emails dated 13 ^th April 2016 and 18 ^th April 2018. He sought a meeting with the Respondent. She declined his request, but agreed to speak to him by telephone. He did not take up her offer.

19 By a Decision Notice dated 20 ^th April 2016, which was issued pursuant to section 71B(3)(b) of the Act, the Respondent informed the Appellant that his representations had no merit:

‘ In respect of Nadine James, your representations have no merit for the following reasons:

• • that you carelessly entered into a partnership arrangement with Ms. James for the establishment of Bella Bella Nail Salon but this is no excuse for your lack of awareness of the set-up of the business, including submissions of work permit applications to the Department of Immigration;

• • that as a partner of Bella Bella Nail Salon, you had a duty to ensure that Ms. James obtained a work permit before she undertook work functions at Bella Bella Nail Salon on February 3, 2016 and February 5, 2016; and

• • that as partners of Bella Bella Nail Salon, you are fixed by the activities/happenings in relation to Bella Bella Nail Salon.

In respect of Donovan James, your representations have no merit for the following reasons:

• • that for approximately 2 years (dating back to 2014) you entered into an agreement with Mr. James that permitted him to undertake work duties for Changes Beauty Salon, the establishment where you are the sole licensed operator, for example Mr. James ordered and...