Sasaki v Chief Executive of the Ministry of Business, Innovation and Employment
[2023] NZHC 539
•27 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-001848
[2023] NZHC 539
UNDER Judicial Review Procedure Act 2016 IN THE MATTER OF
Application for Judicial Review of the decision made under the Immigration Act 2009
BETWEEN
TAKESHI SASAKI
Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Respondent
Hearing:
Further submissions:
16 March 2023
23 March, 27 March and 29 March 2023
Appearances:
M Kim for the Applicant
A Britton for the Respondent
Judgment:
27 June 2023
JUDGMENT OF WHATA J
This judgment was delivered by me on 27 June 2023 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors:
MK Law Barristers & Solicitors, Auckland Crown Law, Wellington
SASAKI v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2023] NZHC 593 [27 June 2023]
[1] In 2020 Mr Sasaki obtained a work visa to work as a head chef of a group of Japanese restaurants. Having received advice that Mr Sasaki was in fact employed as a manager or a higher position than head chef, Immigration New Zealand (INZ) issued a Deportation Liability Notice (DLN) to Mr Sasaki. Mr Sasaki sought a Good Reason Review (GRR) of that notice under s 157(2) of the Immigration Act 2009 (The Act). His matter was then reviewed by a compliance officer who decided that Mr Sasaki was a “restaurant manager” or higher and therefore working outside the conditions of his visa. A Deportation Order was then issued.
[2] Mr Sasaki seeks to judicially review the Good Reason Review decision and Deportation Order on two main grounds:
(a)INZ erred in law when assessing whether Mr Sasaki was working in breach of conditions on his work visa.
(b)INZ acted unfairly by not giving Mr Sasaki an opportunity to comment before issuing the DLN.
Process
[3] At the hearing it became evident that the statement of claim may need to be amended to address two key aspects of Mr Sasaki’s complaint. His counsel advised that the affidavit evidence revealed that information had been supplied to INZ that was adverse to his interests but that this information was not disclosed to Mr Sasaki. In addition, Mr Kim effectively sought to have the DLN decision reversed, but this relief had not been sought in the pleadings. Leave was granted to file a memorandum on the amendments sought within five days of the hearing, with a right of reply five days thereafter.
[4] It transpires that the information was disclosed to Mr Sasaki, so no amendment to the pleadings was necessary. In relation to the DLN decision, the respondent does not oppose amending the pleadings to the effect that there was a failure to inform Mr Sasaki of its investigation prior to issuing the DLN. However, the respondent does not accept that Mr Sasaki should be able to amend the pleadings so that he can challenge the vires of the DLN, because that is a fundamental change of position and
unfairly prejudicial to INZ. It is also submitted that the claim is futile in any event, given the standard for such a challenge is Wednesbury unreasonableness.
[5] I am content to allow the pleadings to be amended as now sought by Mr Sasaki. While the proposed changes are very late, INZ was able to mount an effective case at the hearing, and in subsequent submissions, in respect of the key alleged error namely, the failure to inform Mr Sasaki of the investigation. Given the significance of the outcome to Mr Sasaki, I consider that it is in the interests of justice for the pleadings to be amended to enable challenge the vires of the DLN. I also consider it more efficient and just to deal with DLN claims in light of all the evidence rather than peremptorily.
Background
[6] Mr Takeshi Sasaki and his wife, Ms Akane Sasaki, are Japanese nationals. They each obtained a working visa to work as “chefs” in New Zealand in 2018.1 In January 2021 Mr Sasaki was promoted by his employer, First Pacific Capital New Zealand Limited (FPCNZ), to Head Chef. The employment agreement for this new position records relevantly the following job summary:
Position: Head Chef
Job Summary: You are responsible for leading the kitchen staff to develop and produce dishes to maximise customer satisfaction, and for contributing to generating profit for employer
[7] It also lists a number of key duties and responsibilities including the training and development of kitchen staff, preparation of dishes, direction for all day to day operation in the kitchen, monitoring stock levels, analysing expenses, providing solutions for cost reduction, providing guidance and direction to subordinates, including the setting of performance standards and monitoring performance. The duties also include:
·Reviews staffing levels to ensure that guest service, operational needs and financial objects are met
…
1 Mrs Sasaki was also served with a DLN, but after consideration of her GRR submission, the DLN was cancelled.
·Any other duties the employer may reasonably require.
The employment agreement also records :
Requirements:
·Minimum 3-year work experience as a chef in a senior position in a commercial kitchen
·Leadership
·Excellent communication skills and customer skills
Ability to create new, seasonal dishes
·Ability to work under pressure.
[9] It refers to other capabilities required in terms of knowledge, skills, management/improvement, and other responsibilities. The responsibilities include maintaining production or work records, modifying work procedures or processes to meet deadlines, and directing and co-ordinating activities of other staff.
[10] On 14 February, 18 February and 1 March, 9 March, 11 March, 12 March 2020, Mr Sasaki is represented as “General Manager” and or “Operation Manager” in applications for other employees, including a Full Time Chef, a Chef Assistant, and a Chef de partie.
[11] Various organisational charts show Mr Sasaki in the position of General Manager, including the following:
[12] Mr Sasaki did not in fact apply for a new working visa based on his role as Head Chef until February 2021. A copy of his offer of employment dated January 2020 but signed on 11 January 2021, was included with the application. On 17 March 2021 Mr Sasaki was granted a visa based on his job offer as the Head Chef. The conditions of the visa included as requirement that he work only as a Head Chef in Wellington for FPCNZ.
[13] Mr Sasaki then applied for a work to residence visa in April 2021. In follow up correspondence of 17 July 2021, Mr Sasaki records that he was Chef de partie from November 2019 to December 2020, and Head Chef from January 2021 to the present. His application for a Long Term Skill Short List Occupation (work to residency) visa was declined on 5 August 2021.
[14] In October 2021, INZ received an anonymous complaint that Mr Sasaki was in breach of his visa terms. This triggered an investigation by INZ. This was managed
by Ms Tania Johnston, an immigration officer. The investigation included review of background documents, a telephone conversation with an FPCNZ employee, Ms Morimoto, in February 2022, open internet searches, correspondence with the local Council, and a visit to two of the company’s restaurants.
[15] According to Officer Johnston, Ms Morimoto initially advised that Mr Sasaki was her ‘boss” but subsequently rang back and said he was not her boss, but a chef. Officer Johnston also noted that Mr Sasaki was referred to as “General Manager” or “Operation Manager” or “Manager” in the documentation she obtained. Interviews with staff are also said to have revealed that Mr Sasaki was referred to by a staff member, Ms Ono, initially as “general manager” but then, after speaking to Mr Sasaki, referred to him as a “chef”.
[16] Based on the information obtained, Officer Johnston issued the DLN on 17 June 2022. Mr Sasaki responded with a request via his solicitor, Mr Kim, for the GRR on 1 July 2022. Mr Sasaki signalled that the evidence used to support the DLN was flawed. In further correspondence dated 11 July 2022, Mr Sasaki signalled that the signatures attributed to him on company documents did not match his own and appeared to be electronic impressions. However, INZ say nothing further was provided in support of this claim. On 31 August, after an extended period to enable further information to be provided, a Senior Compliance Officer Mr Aiden Rolls made the GRR decision, upholding the DLN.
[17] In the GRR decision Officer Rolls refers to the company structure. He finds that by reference to the FPNCNZ organisational charts Mr Sasaki occupies, as Head Chef, a senior role in the company. He also notes that “Head Chef” is inconsistent with the ANZSCO definition of a chef. He observes that there are no positions above the Head Chef role in New Zealand. He refers to advice received from Mr Kim that Mr Sasaki was asked to assume some senior management responsibilities in 2020 and was promoted to Head Chef position in March 2021. Officer Rolls identifies documentation submitted in 2020 in respect of other persons’ applications specified Mr Sasaki as an “operation manager” or “general manager”. He finds:
The existence of these different organisational titles for Takeshi at this time identify a discrepancy between how he was referred to internally, and how his
position at FPCNZ was represented to INZ in respect of his own visa applications.
[18] Officer Rolls also found that is more likely that Mr Sasaki continues to operate in this capacity. He then refers to a letter dated 3 August 2022 from a FPCNZ administrator which lists Mr Sasaki’s roles and that he works only 25 hours per week in the kitchen, while Mr Kim has stated he is able to also perform his role as Head Chef. This is said to be a variation from the 40 hours recorded in the Head Chef employment agreement that was submitted for his February 2021 work visa application. Officer Rolls found that:
[s]uch a variation lends weight to the contention that Takeshi is not working full-time in the role his visa was approved for and continues to work outside the conditions of his visa.
[19]He then observes:
You have submitted that it is not the job title used but it is the real nature of the persons employment that is important in determining whether a person is in breach of their visa conditions. This is a critical point and in consideration of your submission and the supporting evidence, I find that Takeshi’s position is that of a restaurant manager or higher, given the number of restaurants that operate within the FPNZC business and the organisational structure that it has.
[20] In relation to Mr Sasaki’s complaint of unfair process in that he was not given the opportunity to comment on the information supplied to INZ, Officer Rolls finds that sufficient evidence to substantiate the allegation was collected and to meet the threshold for the DLN to be issued. Overall, he finds that it is more likely that Mr Sasaki was working outside the conditions of his working visa and does not accept that there are good reasons why deportation should not proceed.
Affidavit evidence for Mr Sasaki
[21] The following briefs of evidence were filed in support of Mr Sasaki’s application; Affidavits of the Applicant, Affidavit of Shuku Morimoto, and the Affidavit of Kokoro Higuchi.
[22] Mr Sasaki’s affidavit evidence covered his employment history in New Zealand noting his increase in administrative responsibilities due to the COVID-19 pandemic. He notes working in different branches of FPCNZ in their kitchens as well
as “dealing with my management duties”. Mr Sasaki describes how the staff that stated he was the “general manager” were mistaken as he was only the “acting general manager”. He also suggests his signatures were electronically created and used inappropriately. Mr Sasaki notes that it is his view that the officer who issued the DLN did not understand that his job description set out all the duties he was responsible for and that it is common in the hospitality industry for the Head Chef to be in an executive position, reporting directly to the owner of the company.
[23] Shuku Morimoto’s affidavit outlines her view of the phone call she had with Tania Johnston of INZ in February 2022. She notes that she said Mr Sasaki was her boss “because he was my superior, who recruited me in December 2021, and I was new to the company then.” Ms Morimoto noted her surprise at hearing INZ believed she changed her reference to Mr Sasaki from “boss” to “head chef” and said that Mr Sasaki did not ask her to correct what she said about him being her boss. She states that INZ may have misunderstood me.
[24] Kokoro Higuchi’s affidavit outlines his view of Mr Sasaki’s working hours. Mr Higuchi states that Mr Sasaki “was ‘sekininsha’ and head chef”. He noted that Mr Sasaki worked 20 to 25 hours per week mainly on the weekend and that these hours are recorded in the wages and time records. Mr Higuchi notes Mr Sasaki worked at the Cuba and Courteney branches on some weekend days. He notes that Mr Michael Tjahjadi who told INZ officials that he had not seen Mr Sasaki at the Courteney branch was only working part time during the weekdays and that this was the reason why he had not seen Mr Sasaki at the Courteney branch before.
Agreed working visa
[25] In terms of the deportation liability in this case, Mr Britton advises that the visa under scrutiny is the March 2021 “Head Chef” visa and whether Mr Sasaki acted in breach of the conditions of that visa.
ANZCO definitions
[26] Given their relevance to the issues in dispute, I set out here the ANZSCO definitions for “chef” and “restaurant manager”:
(a)Chefs: “Chefs plan and organise the preparation and cooking of food in dining and catering establishments. Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group.”
(b)Restaurant Manager: “Cafe and Restaurant Managers organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.”
Statutory Framework
[27] Section 58 of the Act imposes an obligation on the applicant for a working visa to ensure all relevant information is supplied to INZ and to notify of any relevant fact, including any material change in circumstances.
[28]Section 157 of the Act states:
157 Deportation liability of temporary entry class visa holder for cause
(1) A temporary entry class visa holder is liable for deportation if the Minister determines that there is sufficient reason to deport the temporary entry class visa holder.
(2) The person has 14 days from the date of service of the deportation liability notice to give good reason why deportation should not proceed.
(3)Subsection (2) does not apply if—
(a)the person is the holder of a limited visa; or
(b)the Minister determines that the person is an excluded person.
(4) A temporary visa holder or interim visa holder who is liable for deportation under this section may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal on humanitarian grounds against his or her liability for deportation.
(5) For the purposes of subsection (1), sufficient reason includes, but is not limited to,—
(a)breach of conditions of the person’s visa:
(b)criminal offending:
(c)other matters relating to character:
(d)concealing relevant information in relation to the person’s
application for a visa:
(e)a situation where the person’s circumstances no longer meet the
rules or criteria under which the visa was granted.
[29]As Edwards J stated in Singh:
[16] The scheme set out by s 157 states that a temporary entry class visa holder is liable for deportation if there is “sufficient reason” to deport. Then, under subs (2), the visa holder has 14 days from the date of the service of the deportation liability notice to give “good reason” why deportation should not proceed. If an officer determines there is good reason, deportation liability may be cancelled under s 172 of the Act.
[17] Section 157 is in pt 6 of the Act, which deals with deportation. The purpose of pt 6 is:2
… to support the integrity of New Zealand’s immigration system and the security of New Zealand by providing for the deportation of certain persons from New Zealand.
[18] Immigration instruction D3.70 sets out the process to be undertaken when a person provides reasons why they should not be deported in accordance with s 157(2). Those instructions provide that consideration of any submissions must be done by a different officer than the officer who served the DLN. The officer must also take into account the objective of the Immigration instructions, which is to maintain the integrity of New Zealand’s immigration law and other immigration requirements.
[30] It is common ground there must be a “sufficiently strong factual basis” to deport Mr Sasaki in order to uphold a DLN.2
Threshold for review
[31] This is an application for judicial review. To succeed Mr Sasaki must identify a material error of law, failure to have regard to relevant considerations, regard to irrelevant matters, procedural unfairness, or irrationality.3 It is not an opportunity to test the merits of a factual evaluation, provided there was some proper evidential basis for the decision.4 While the law is not entirely settled on the nature of the review exercise in this context, I am content to proceed on the basis stated in Hu, namely that
2 Taito v Minister of Immigration [2014] NZHC 1897 at [24].
3 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); and Peters v Davison [1992] 2 NZLR 164 (CA) at 180.
4 Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2954 at [62].
a “decision may be unreasonable if it is not supported by any evidence, or if the evidence is inconsistent with or contradictory of it, or if the only reasonable conclusion contradicts the determination.”5 Overall, I must be satisfied that INZ met the statutory and procedural pre-conditions for making the GRR decision, and upholding the DLN.6
Error of law
Argument
[32] Mr Kim submits that INZ has an obligation to consider a person’s arguments and evidence presented and to make a fair and impartial decision based on all relevant factors and that it must adopt a balanced approach that aligns with the dual purposes set out in the Act. He says INZ must also act fairly and in accordance with principles of natural justice,7 and that this requires a party to be given an opportunity to respond to allegations which might be effectively refuted.
[33]He identifies what he considers is relevant information, including:
(a)timesheets showing an average working week of 27 hours in the kitchens only of FCPNZ in Wellington between 28 February to August 2022; and
(b)evidence of his attendance to other non-kitchen duties such as planning menus and reviewing recipes.
[34] He challenges INZ’s finding that Mr Sasaki worked outside of his work visa condition referring to WK3.20.2 which states:
WK3.20.2 Assessment that employment substantially matches an ANZSCO occupation
a. When assessing whether an offer of employment substantially matches a particular occupation in the ANZSCO, an immigration officer must be satisfied that the duties and responsibilities in the employment offer match the description of that occupation as set out in the ANZSCO.
5 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [30].
6 McGrath v Accident Compensation [2011] NZSC 77, [2011] 3 NZLR 733 at [31].
7 Referring to Ali v Deportation Review Tribunal [1997] NZAR 208.
b. Where related occupations are described by the same task list in the ANZSCO, an immigration officer may disregard tasks not relevant to the occupation that most closely matches the employment offered.
[35]He contends:
(a)INZ did not undertake a fair and impartial assessment as required by WK3.20.2.
(b)INZ was wrong to assume because he was recorded as having only worked 25 hours per week in the kitchen, he was not otherwise performing a full-time role as Head Chef.
(c)INZ failed to give due consideration to the actual duties and responsibilities of Mr Sasaki and or identify the specific tasks that he performed outside his job description.
(d)INZ failed to properly address his claim that the signatures on the Employment forms were electronic signatures.
(e)INZ relied on statements by persons who were not familiar with Mr Sasaki’s duties or who gave ambiguous information about Mr Sasaki.8
(f)Doing additional duties is not a breach of the working visa conditions.
(g)INZ undertook an open source, but misinformed, investigation into Mr Sasaki’s previous employment.
[36] He also notes that a “Head Chef” as described in the Restaurant Association includes managerial responsibility and in discussion with me was happy to adopt the proposition that it was necessary for INZ to properly identify what a Head Chef did and did not do this.
8 Referring in particular to the statements made by Haruka Ono and Michael Tjahadi.
[37] Taken together, these factors are said to show that INZ erred in terms of the GRR decision, and that the decision reached was not open to INZ on the evidence and to a fair and reasonable decision maker.
[38] Mr Britton for the respondent submits that INZ enjoys a broad discretion to deport in this context and that there need only be a “sufficient reason”. He says there was plainly sufficient reason available to INZ to issue the DLN and to decline to cancel. There was evidence that he had failed to inform INZ of his actual role, that is as a restaurant manager or higher; and that his actual role was inconsistent with the definition of “chef” set out in the Australia and New Zealand Standard Classification of Occupation (ANZSCO) and it was open to INZ to find that Mr Sasaki failed to displace it with a sufficiently strong factual basis.
[39] Mr Britton submits INZ is not required to go beyond the ANZSCO definitions to identify the specific tasks that Mr Sasaki performed outside the job description before concluding that he was working in breach of his work visa condition. He says there was no misunderstanding, cultural or otherwise, about the conditions of his working visa, namely that he was to be a chef and not a restaurant manager. He also contends that Mr Sasaki is effectively seeking to challenge the factual findings made by the INZ Officer.
Analysis
[40] I address issues of alleged procedural unfairness below, but as a preliminary point, I see nothing on the face of the GRR to suggest that Officer Rolls failed to discharge his responsibilities impartially.
[41] In terms of alleged error of law, the key issue in this case is whether Officer Rolls assessed compliance with the working visa conditions against the correct legal standard, namely the work visa condition that Mr Sasaki work as a “Head Chef” as that role is described in the working visa application. In this regard, the Officer’s main findings were:
(a)Officer Rolls identified that Mr Sasaki was working as a Head Chef, with managerial responsibilities.
(b)He referred to evidence that Mr Sasaki only worked about 25 hours a week in the kitchen, not 40 hours per week as head chef as stipulated in his application.
(c)He identified the role and functions performed by a “chef” which is limited to largely kitchen duties.
(d)He referred to evidence that suggested that Mr Sasaki worked as a “restaurant manager” or higher given the number of restaurants that operate within the FPCNZ business and the organisational structure that it has.
[42] I am satisfied that the Officer turned his mind to the correct legal standard. While he placed some emphasis on the definition of “chef” in the ANZSCO and did not give a blow by blow analysis of the visa application, he plainly benchmarked his assessment by reference to the visa application description of Head Chef. Moreover, whatever the precise definition of the role of “Head Chef” in the working visa application, it did not involve the higher level of managerial responsibility that Officer Rolls found Mr Sasaki undertook.
[43] As to Officer Roll’s assessment of Mr Sasaki’s position, based on the available evidence, it was plainly open to him to come to the conclusions that he did. There was clear evidence before the Officer that Mr Sasaki was performing a high-level managerial role while claiming to be a Head Chef with relatively limited kitchen related managerial functions. This included employer reference letters signed in Mr Sasaki’s name referring to him as occupying senior management positions as well as statements from former employees referring to him as a “general manager”. Mr Kim’s complaint that the letters were signed with “electronic signatures” is uncorroborated by expert evidence. There was therefore nothing unreasonable in the Officer’s conclusions as to the role played by Mr Sasaki based on the information before him.
[44] I have considered whether there is cultural dimension to this case that might cast a different light on the available evidence. The case for Mr Sasaki is that he was
a “sekininsha” and that this translates to first in charge/manager, but this fact is not inconsistent with his role as Head Chef. Mr Kim says that this explains why staff may have referred to him as general manager without meaning to suggest some more elevated role. I accept there is room for this cultural misunderstanding. There is the evidence of the employees that supports, in part, a finding that they may have misdescribed his role. But, even with the evidence of what the employees said stripped away, on the available evidence as a whole, it was clearly available to INZ to find Mr Sasaki was performing a high-level general restaurant managerial role in breach of the conditions of his working visa.
[45] Accordingly, Officer Rolls’ finding that Mr Sasaki operated as a restaurant manager was plainly available to him. It was also available to him to find that Mr Sasaki did not comply with his work visa condition to work as a “Head Chef” as described in his working visa application.
[46]This ground of review is therefore dismissed.
Unfairness
[47]Mr Sasaki claims:
(a)He should have been informed of the case against him and given the opportunity to comment on adverse information supplied or obtained by INZ prior to the DLN.
(b)He was not given an opportunity to comment on it, even though the issuance of the DLN removed his right to appeal to the Immigration Tribunal.
(c)The DLN decision was and is reviewable, notwithstanding that he has now exercised his GRR rights of review.
(d)The information obtained by the INZ was flawed, for example:
(i)Mr Sasaki alleges the signatures on the applications were effectively forged and should not have been relied upon at any stage, and
(ii)the information received through investigations was obtained from ill-informed or confused people.
(e)Information obtained by INZ prior to the DLN decision about previous work was also flawed (Officer Johnston wrongly assumed that his previous employment did not have a restaurant when it did).
(f)INZ should have at least interviewed Mr Sasaki.
[48] Mr Britton accepts that a DLN is reviewable, and Mr Sasaki could have exercised his right of review instead of seeking a GRR. However, he maintains that the GRR process cured any prior breach of natural justice. Mr Britton objected to the statement of claim being amended to enable a direct challenge to the DLN. For the reasons already noted, I am content to assess the claimed reviewability of the DLN and more broadly, the alleged unfairness.
Analysis
[49] Edwards J noted in Singh, “[n]atural justice requires a party to be given an opportunity to respond to allegations which might be effectively refuted.”9 As a general proposition, that basic point is trite. But the availability of relief by way of judicial review for breach of natural justice will depend on context.10 In this case there is a purpose-built procedure for challenging flawed DLN decisions prescribed by s 157 of the Act in the form of the GRR process. While judicial review of a DLN decision is not expressly precluded by the statutory scheme, the GRR process was triggered in this case. Any prior breach of natural justice was capable of being addressed in that review process, and the key points of concern were also put to the reviewing Officer who found that there was sufficient evidence to issue the DLN. It does not accord with this statutory scheme to entertain, on these facts, review of the DLN on breach of
9 Singh, above n 4, at [36], citing Khalon v Attorney General [1996] 1 NZLR 458 (HC) at 466.
10 Dotcom v United States of America [2014] NZSC 24; [2014] NZLR 335 at [120].
natural justice grounds where, as here, those grounds were ventilated through that GRR process. I therefore dismiss the direct challenge to the DLN.
[50] For completeness, nothing I say here should be taken to infer that failure to consult the affected visa holder prior to a DLN may give rise to reviewable error. I simply proceed on the basis that the GRR process addressed any alleged failure of this kind.
[51] Turning to the merits, I agree with Mr Britton that Mr Sasaki had ample opportunity to respond to the allegations about him through the GRR process. As Mr Britton helpfully noted in his submissions:
(a)The DLN set out the reasons why INZ considered he was working outside his work visa conditions, including documentation that showed he had been named as “General Manager or Operations Manager” and that staff referred to him as the “General Manager”.
(b)Mr Sasaki’s counsel sought copies of the materials referred to Mr Sasaki as general manager.
(c)Mr Sasaki took the opportunity through the GRR to deny the allegations contained within the DLN.
(d)Mr Sasaki, on 11 July 2022, informed INZ of his concerns that the signatures had been used without his consent, but nothing further was provided.
(e)After receiving Mr Sasaki’s GRR submission, INZ wrote to him requesting further information and provided a further opportunity to respond. INZ requested a letter referred to in the GRR submission. There was no response.
[52] Overall, I am not satisfied that there has been any breach of natural justice. Mr Sasaki was given ample opportunity to put his case, including to identify potential flaws in the information supplied to INZ.
[53] I note as a final matter, the Officer has removed the five-year period of prohibition that would have applied. He noted that this decision is based on the environment the business was operating in at the time and the promulgated value of Mr Sasaki to the business. That would seem a proportionate approach and nothing in this judgment should be seen as derogating from this aspect of the decision.
Result
[54] I am satisfied that INZ did not err in law or procedurally when deciding to confirm the DLN.
[55]The application for review is therefore dismissed.
Whata J
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