Speed v Chief Executive of the Department of Labour HC Wellington Civ-2011-485-1369

[2011] NZHC 1570

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1369

UNDER  the Judicature Amendment Act 1972 and the New Zealand Bill of Rights Act 1990

IN THE MATTER OF     an application for review

BETWEEN  DOMINIC JAMES SPEED Plaintiff

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR First Defendant

ANDTHE ATTORNEY GENERAL OF NEW ZEALAND

Second Defendant

Hearing:         13 July 2011

Counsel:         D A Ewen and J Robertson for Plaintiff

I Carter and J Catran for Defendants

Judgment:      14 July 2011

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 10:30am on the 14th July 2011.

DOMINIC JAMES SPEED V CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV-2011-

485-1369 14 July 2011

[1]      The plaintiff is a qualified teacher.  He came to New Zealand on 27 January

2007 and was granted a work permit.   Various renewals were granted up to and including the last permit granted on 15 May 2009.  The permit allowed Mr Speed to teach at Wellington Girls College.  His employment at that college was terminated in December last year following a lengthy period of suspension.  The formal reason for this was that Mr Speed’s practising certificate had expired on April 2010 and had not been renewed.  The college said it could not lawfully employ him unless he had a current certificate.  Renewal was delayed because various criminal charges had been laid against Mr Speed by the police and information had been provided, by way of complaint, by Wellington Girls College to the New Zealand Teachers Council.  The information related to aspects of his conduct at school.  Backgrounding all of this is extensive allegations of misbehaviour in his work at the college, the details of which need not detain us here.

[2]      All but one of the criminal charges were, it appears, either withdrawn or resulted in Mr Speed’s acquittal.  According to documentation filed by Wellington Girls College in the dispute with Mr Speed under the Employment Relations Act

2000,  the  District  Court  advised  the  college’s  lawyers  that  as  at  1 July  2010

Mr Speed’s pending charges were:

(a)       disorderly behaviour causing violence; (b)      wilfully trespassing;

(c)       common assault;

(d)      intimidation/threatening behaviour/language (x2); and

(e)       unlawfully interfering with a motor vehicle.

I have of course no way of verifying this list, but in the time available Mr Ewen took no issue with it.

[3]      By 31 August 2010 the list had changed somewhat, to the following:

(b)      unlawfully interfering with a motor vehicle; (c)           miscellaneous parking and traffic matters; and (d)      common assault.

[4]      I do not know, but assume for present purposes, that the second list reflects certain of the earlier charges being withdrawn or resulting in acquittals.

[5]      On 15 December 2010, Mr Speed was served with a deportation liability notice under s 157 of the Immigration Act 2009.   The notice included under the heading “Ground for Deportation Liability” the following:

... the work visa granted to you on 15 May 20009, for the purpose of the employment as a teacher at Wellington Girls College, no longer applies as your employment has been terminated.

[6]      On 30 December 2010, Immigration New Zealand determined that Mr Speed had failed to show good reason why deportation should not proceed.  No appeal was brought against that determination but Mr Speed made further submissions in respect of  the  notice.    On  30  December  2010  the  decision  to  issue  the  notice  was nevertheless  affirmed.    Immigration  New  Zealand  recommended  that  Mr Speed apply for a further temporary visa and advised (as did the notice itself) that there was a  right  of  appeal  to  the  Immigration  and  Protection  Tribunal  on  humanitarian grounds.  There was no further appeal or application for temporary visa so Mr Speed was liable to service of a deportation order under s 175 of the Immigration Act 2009 as at 31 January 2011.

[7]      By  email  dated  4  February  2011,  Immigration  New  Zealand  advised Mr Speed that it did not intend to take any action on the deportation notice in light of the fact that he had an outstanding grievance with his employer.  That indication was subject to review in the case of changed circumstances.

[8]      The words used were as follows:

Immigration NZ do not intend to take any action at present due to the fact that you have an outstanding grievance with your employer.

...

We will review our decision on a regular basis depending on any change in your circumstances but we hope you will be able to resolve your outstanding issues before you need to depart New Zealand.

[9]      On  18 April  2011  an  Immigration  New  Zealand  official  wrote  again  to Mr Speed indicating that it would no longer wait till after the employment issues were resolved. The email provided:

As I have discussed with you previously I was prepared to give you some latitude with regard to you leaving New Zealand in order for you to resolve you (sic) employment issue but this matter will not be resolved until at least September and more probably longer and so it is not realistic for you to remain  unlawfully  in  New  Zealand  for  that  length  of  time.     Your employment issues are something that you could manage offshore with representation I presume?

[10]     By email on the morning of 6 July 2011, Mr Speed advised Immigration New Zealand  that  the  Complaints  Assessment  Committee  of  the  New  Zealand Teachers Council had dismissed the complaint against him.  Meanwhile he advised he was continuing to pursue his personal grievance claim against Wellington Girls College.   Later that same day, Mr Speed was taken into custody pursuant to  a deportation order issued that day.  It seems Mr Speed was arrested for shoplifting on

6 July and that triggered the foregoing steps.

[11]     A letter from the Police to Immigration New Zealand also dated the same day confirmed that the Police would  not be proceeding  with the shoplifting charge, “under the proviso” that Mr Speed was deported.

[12]     According to the affidavit of Mr John Lyde of Immigration New Zealand, it has not been possible to deport Mr Speed up until this point because he has refused to advise the whereabouts of his UK passport, and refuses to complete an application form for travel documents from the British High Commission.

[13]     Mr Lyde also advises Immigration New Zealand expected that Mr Speed will abscond within New Zealand if not deported because:

(b)he only came to the recent attention of Immigration New Zealand because of an unrelated police matter;

(c)      he advised that he was changing address but declined to give a new address;

(d)      he currently refuses to cooperate by completing travel documentation; (e)     he does not wish to return to the UK;

(f)       he has a history of evading police and breaching bail.

[14]     Mr  Speed  seeks  judicial  review  of  the  deportation  notice  and  order  and interim orders in the meantime.  He relies on three grounds of review:

(a)      he is not in breach of any visa conditions and cannot therefore be deported;

(b)deportation would deny his right to be present at the hearing of his employment dispute;

(c)      Immigration  New   Zealand  created  a  legitimate  expectation  by promising  it  would  take  no  action  in  respect  of  Mr  Speed’s immigration status and then breaching that promise without consultation.

[15]     The respondent on the other hand argues that the relevant statutory decisions are now unreviewable because:

(a)       any rights of review or appeal are out of time and/or statute-barred;

(b)Mr Speed failed to help himself by lodging appeals in time or seeking a further temporary visa;

(d)he need not be present in New Zealand to prosecute his employment case;

(e)       he   has   been   uncooperative   and   is   likely   to   abscond   within

New Zealand if he is not deported.

[16]     It is common ground that the standard to be met at this interim stage in the special context of immigration cases has been accurately set out by Hammond J in Esekielu v Attorney General[1]:

I would have thought there must be a real contest between the parties, and that the applicant has a respectable chance of succeeding in that contest.

[1] (1993) 6 PRNZ 309 at [313].

[17]     I do not on reflection consider that the case mounted by Mr Speed reaches Hammond J’s standard except in the very limited respect I allude to at the end of this judgment.

[18]     Mr Ewen’s first ground is that it is not a condition of Mr Speed’s work permit that he work as a teacher for Wellington Girls College in terms of s 157(5)(a) of the Immigration Act 2009.

[19]     The Immigration New Zealand visa printout provides (inter alia):

This permit expires when the holder leaves New Zealand.  The holder may work as a teacher for Wellington Girls College in Wellington.

[20]     Immigration  New  Zealand’s  work  permit  approval  letter  reflects  that

language.

[21]     I  agree  that  working  at  Wellington  Girls  College  is  not  expressed  as  a condition of Mr Speed’s work permit.  That is because it is the entire point of the permit.  The permit was granted only for the purpose of enabling the Mr Speed to work at Wellington Girls College.  He was let into the country to work as a teacher

and he is allowed work nowhere else.  This is more apt in my view to be considered

under s 157(5)(e) providing that it will be sufficient reason for the Minister to deport a work permit holder:

Where the person’s circumstances no longer meet the rules or criteria under

which the visa was granted.

[22]     It must surely be a sufficient reason to cancel the work visa and deport the visa holder if the underlying purpose for the visa has been subverted due to his dismissal.

[23]     Mr Ewen’s rejoinder is that although Mr Speed is no longer employed at Wellington Girls College and no longer has a teacher’s practising certificate, he is engaged in a personal grievance against that school and the Complaints Assessment Committee of the New Zealand Teachers Council has dismissed complaints against him.

[24]     That is true (I have no independent verification in respect of the Complaints Assessment Committee but will assume it is so), but the undeniable facts are that Mr Speed is unemployed and currently unemployable as a teacher.   Whether the court should step in to protect his right to test crucial decisions affecting his employment and employability is a matter of discretion at best.   In this case Mr Speed is on thin ground because he has done so little to help himself in that regard.  I would have been sympathetic to his circumstance if Immigration New Zealand had issued a deportation order in the face of its clear statement of 4 February 2011 that it would take no action on the deportation notice.  But on 18 April Immigration New Zealand expressly advised Mr Speed that it would now be seeking his deportation.

[25]     Mr Speed did not look to the remedies that might have been available to him. He  did  not  appeal  to  the  Immigration  and  Protection Tribunal  on  humanitarian grounds.  Nor did he issue judicial review proceedings at that point.  He would, in my view, have been on good grounds at that point to say he had relied on the

4 February email and Immigration New Zealand’s change of stance without notice amounted to special circumstances in terms of s 247(1).  This would have allowed him to avoid the 28 day time limit from the date of issue of the deportation notice on

22 December 2010.   Mr Speed did not do this.   He did nothing for nearly three

months after having been warned of the change of stance.  He made the application only after he was arrested on a further charge.

[26]     In the absence of a substantive argument meeting the test in Esekielu on the legality of the notice and order, I do not see how a procedural argument requiring consultation before Immigration New Zealand shifted from its 4 February position has any real chance of success.  Mr Speed delayed responding for too long.

[27]     Mr Speed finally argues that he has proceedings before the Employment Relations Authority in respect of his employment at Wellington Girls College and it would be in breach of s 27 of the Bill of Rights Act for him not to be permitted to stay in New Zealand long enough for those proceedings to be finally resolved.  He argues that the principles of natural justice enshrined in that section require him to be present.

[28]     I  do  not  think  that  is  so.    Clearly  technology  would  allow  Mr  Speed’s evidence to be taken at a distance through videoconferencing facilities, and there is no reason of which I am aware to prevent Mr Speed being able to view the entire proceedings  and  to  converse with  counsel  by email,  Skype,  or teleconferencing facilities if he wishes.

[29]     Mr Ewen argued that if the deportation order is carried out Mr Speed will be banned from returning to New Zealand for at least two years and this will prevent any opportunity of reinstatement in his former employment.   Thus, it was argued, Mr Speed will be caught in an unfair cycle of cause and consequence from which he will not be able to extricate himself.

[30]     I have some sympathy with that particular concern, in theory at least.   It seems to me that, in light of the conclusions I have reached on the merits of his substantive  application,  Mr  Speed  should  be  given  a  fair  opportunity  to  leave New Zealand voluntarily rather than suffer the knock-on effect that a deportation order might have on his chances of success in the Employment Relations Authority.

[31]     I would propose to give Mr Speed a reasonable time from the time and date of this judgment during which to make arrangements for his own departure if he wishes to take up that offer.   I would invite counsel to urgently confer and then advise appropriate conditions.

[32]     In the meantime, counsel have until 5pm today to confer and either file memoranda or appear for further discussion.  I will issue interim orders preventing Immigration New Zealand from executing its deportation order until 10.30am tomorrow morning. Any further order that may become necessary after counsel have conferred can be considered before then.

Application for habeas corpus

[33]     I was advised this morning that Mr Ewen filed an application for habeas corpus late last night by email.  It does not appear to have been accepted for filing but it seems appropriate for me to consider the matter in the short time available to me this morning before I must go to court on other matter anyway.

[34]     The application for the writ was made because of the tight time constraints provided by s 247 of the Act in respect of applications for judicial review or the other prerogative writs of certiorari, mandamus, or prohibition and declaratory judgments.

[35]     Mr Ewen argues that the deportation notice and order were illegal because Mr Speed has a work permit valid until November and it does not require him to work at Wellington Girls College to maintain its invalidity.

[36]     While in theory, it might be open to Mr Speed pursue a writ of habeas corpus in respect of his detention pending deportation, in reality he could not succeed in obtaining one in this case.  That is because, for the reasons I traversed above in the context  of  the  Judicature  Amendment  Act  application,  he  does  not  have  a “respectable case” in that regard.   I do not think it is arguable that the notice and order are illegal.

[37]     The  application  for  a  writ  of  habeas  corpus  must  also  be  dismissed

accordingly.

Williams J