N720

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

VALENTINE

V

SOMARE AND OTHERS

Waigani
Andrew AJ
24 February 1989

ADMINISTRATIVE LAW - Application for judicial review - Practice and procedure - Compliance with Rules of Court - Applicant to have "sufficient interest" - Objective assessment of - Whether substantial issues raised - Review of deportation order - Leave granted - Migration Act (Ch No 16), ss 6, 12 - National Court Rules, O 16, r 3.

PRACTICE - National Court - Application for judicial review - Compliance with Rules of Court - Discretionary considerations - Applicant to have "sufficient interest" - Objective assessment of - Whether substantial issues raised - Review of deportation order - Leave granted - Migration Act (Ch No 16), ss 6, 12 - National Court Rules, O 16, r 3.

Order 16, r 3, of the National Court Rules provides that the Court shall not grant leave to apply for judicial review "unless it considers that the applicant has a sufficient interest in the matter to which the application relates".

Held

(1) On an application for leave to apply for judicial review, the Court is required to determine, under O 16, r 3, on an objective assessment of the evidence available, whether the applicant has a sufficient interest in the matter and whether the issues raised are substantial.

Ombudsman Commission of Papua New Guinea v Denis Donohoe [1985] PNGLR 348, followed.

(2) An applicant for leave to apply for judicial review of a decision of the Committee of Review appointed under the Migration Act (Ch No 16), who had resided in Papua New Guinea for 14 years and who was a director of and shareholder in a company which provided his employment and livelihood, and who had been served with Notices of Cancellation of Entry Permit and Removal Order, pursuant to s 6 and s 12 of the Migration Act (Ch No 16), a review of which had been upheld and an order to leave the country within seven days made, had sufficient interest in the matter which raised substantial issues based on the Constitution to be granted leave to apply.

Cases Cited

Ombudsman Commission of Papua New Guinea v Denis Donohoe [1985] PNGLR 348.
Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329.
Raz v Matane [1986] PNGLR 38.
SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329.

Application for Judicial Review

This was an application for leave to apply for judicial review of a decision of the Committee of Review appointed under the Migration Act (Ch No 16).

Counsel

K Y Kara, for the plaintiff,
F Damen, for the defendants.

24 February 1989

ANDREW AJ: The plaintiff in this matter makes application by way of originating summons for an order that he be granted leave to apply for judicial review of the decision dated on or about 10 February 1989 made by the third defendants sitting as a Committee of Review appointed pursuant to s 6(3) of the Migration Act (Ch No 16) and for an injunction to restrain the defendants from deporting or otherwise removing or attempting to remove the plaintiff from Papua New Guinea until final determination of the application for judicial review of the said Committee’s decision.

Order 16, r 3, of the National Court Rules is as follows:

"Grant of Leave to Apply for Judicial Review

(1) The application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.

(2) The application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported:

(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit, to be filed before the application is made, verifying the facts relied on.

(3) The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.

(4) ...

(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates ..."

The Supreme Court has held, in Ombudsman Commission of Papua New Guinea v Denis Donohoe [1985] PNGLR 348, that on an application for leave for judicial review, the Court need only be satisfied as to the requirements of the National Court Rules. Order 16, rr 2, 3 and 5, are in the exercise of discretion. Amet J there held (at 361):

"... The Court is not required to address the matters specified in O 16, r 1(2). These are matters for consideration by the Court hearing the substantive application. I consider that the substantial issues raised are matters properly to be considered by the Court hearing the substantive application, depending on its conclusion of facts upon an assessment of all the evidence and the benefit of legal arguments."

A brief outline as to the background of this matter is as follows. On 3 January 1989, the plaintiff was served with Notices of Cancellation of Entry Permit and Removal Order, pursuant to s 6 and s 12 of the Migration Act (Ch No 16). The plaintiff is an Australian citizen and has resided in Papua New Guinea for 14 years. He was employed by PNG Aviation Services Pty Ltd, of which company he is a director and shareholder. On 9 January 1989, this Court made an order to the effect that an order made by the first defendant, the Minister for Foreign Affairs, dated 23 December 1988, for the plaintiffs removal from Papua New Guinea, be stayed until notice was given to him of the decision of a Committee of Review to be appointed by the Prime Minister under s 6 of the Migration Act. He was advised that the Committee of Review would consider his application for review and was requested to "submit his appeal in detail". He submitted these reasons in a letter dated 25 January 1989, in which he stated that he held a valid work permit, that he believed that he was an honest and reputable person, and that he had never been involved in any criminal proceedings. He stated that, if the proceedings to deport him were related to the defamation proceedings he had commenced against the first defendant (the Minister), then he requested the Committee seriously to take into account the findings concerning PNG Aviation Services Pty Ltd and himself made by a Commission of Inquiry into Pelair that:

"The Commission of Inquiry found that PNG Aviation Services Pty Ltd of which I am a director, appeared to have an actionable case against the Hon Minister for damages as a result of certain advertisements which were published in the media in August 1985. By filing the abovementioned Writ, I was merely acting on the findings of the Pelair Commission of Inquiry."

There was other material which was placed before the Committee but I do not repeat it here. On 22 February 1989, the plaintiff was advised by letter that the Committee of Review had upheld the decision of the Minister to deport him and he was advised to leave the country within seven days.

He now brings this application seeking leave for judicial review of that decision.

This is a sensitive area of the law for it is in the sovereign power of the people, exercised through the Government, to allow entry of aliens to Papua New Guinea and:

"[i]mmigration is, and we think must always be, a jealously guarded privilege, and it would seem that the fact that it is a privilege, and not a right is often overlooked": quoted in Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 at 340.

Section 19 of the Migration Act is as follows:

"(1) Without limiting the generality of Subsection (2) the expression ‘review’ or ‘challenge’ in the subsection includes:

(a) a writ of certiorari, prohibition or mandamus or other form of prerogative writ, or other writ, orders or process in the nature of such a writ; or

(b) proceedings by way of appeal or for a writ order or process referred to in paragraph (a) (including proceedings for an order nisi or to show cause why relief should not be granted).

(2) The act, proposed act or decision of the Minister relating to the grant or cancellation of an entry permit or to the removal of a person from the country, or any decision of a Committee of Review under Section 6 is not open to review or challenge in any Court on any ground."

But I am bound by the Supreme Court decision in Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 where it was held that this section was not unconstitutional but that it could not prevent the jurisdiction of the National and Supreme Courts being involved in support of alleged constitutional rights and against alleged breaches of the Constitution. That decision now needs to be read in conjunction with SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329 where it was held that s 41 of the Constitution confers a right of action which may be enforced by the National Court under the Constitution, s 23(2) or s 155(4). The Chief Justice (Kidu CJ) there said (at 330-331):

"There is, in my opinion no doubt that s 41 of the Constitution confers a right — the right to challenge an act done under a valid law."

(and at 332):

"... Section 41 creates a right but does not directly prohibit or restrict an act nor does it directly impose a duty. But in my view it does indirectly prohibit or restrict an act and also indirectly imposes a duty. A person empowered to do an act under a valid law is restricted or prohibited indirectly by s 41 from acting harshly or oppressively."

Also the Deputy Chief Justice (Kapi Dep CJ) said (at 336-337):

"... The provision deals with acts that are empowered to be done or are allowed to be done by a valid law. The provision sets out the circumstances, (s 41(a), (b) or (c)) under which such acts may be held unlawful or invalid. The whole thrust of the provision is directed at these actions.

... any person aggrieved by acts which are prohibited by s 41(a), (b) or (c), may seek judicial remedy in terms of the provision. That is ... he has a cause or right of action upon which he may make an application to a court ...

Such a cause of action arises or is constituted at the time these actions are taken."

This decision was from a constitutional reference arising in the case of Raz v Matane reported in [1986] PNGLR 38 which was also concerned with deportation, and in applying SCR No 5 of 1985; Re Raz v Matane, the Court found that the right to challenge an act done under a valid law under the Constitution, s 41, extends to a review of a decision of a Minister or a Committee of Review lawfully made under the Migration Act. In Raz v Matane, McDermott AJ said (at 50):

"As Lord Denning said in Soblen [R v Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243] (at 302):

‘The courts can always go behind the fact of the deportation order in order to see whether the powers entrusted by Parliament have been exercised lawfully or not. That follows from R v Board of Control; Ex parte Rutty [1956] 2 QB 109.’

In this country such an action has a constitutional base, that is what the Constitution, s 41, does; it not only facilitates such an inquiry but directs the course of it as well, notwithstanding s 19 of the Migration Act."

The important part of s 41 of the Constitution for the purpose of this case is s 41(1)(a), (b) and (c):

"(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirement of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act."

I am not here deciding if, in fact, the actions of the Minister or of the Committee of Review were harsh and oppressive but whether, on an objective assessment of the evidence available, the plaintiff has a sufficient interest in the matter and that the issues raised are substantial. OR to follow Premdas’ case (at 344 per Prentice CJ):

"Section 41 [must be given its] fair and liberal meaning ... [and] should be regarded as of general application. The criteria put forward in the section are clearly questions of fact ... [and] the test [should be] an objective one. [We must look to] the policy of the [Migration] Act on the one hand and the various provisions of the Constitution on the other."

It is not disputed that the plaintiff was not informed of the reasons for his deportation or cancellation of his entry permit and he still does not know. He clearly has a sufficient interest in the matter as his whole livelihood and reputation are at stake. He has resided in the country for 14 years and is the director of a company upon which his livelihood depends.

For the defendants, it is argued that the onus is upon the plaintiff to prove that the Court should exercise its discretion in his favour to grant leave and that, because he is not aware of the reason for his deportation, he cannot show that the decision of the Committee of Review is unreasonable and thus discharge his onus.

Of course, I also am not in a position to judge whether the Minister or the Committee acted in a harsh or oppressive way because there is no material before me as to why he was deported nor reasons for doing so. It could be argued that the Minister is under no obligation under s 6(1) of the Migration Act to inform the plaintiff of the reasons for the cancellation of his entry permit and that, under s 6(2), his written application to the Minister is only a request that the cancellation of the entry permit be reviewed by the Committee and that this is not an invitation to give submissions. It could also be argued that the wording of s 6(2) of the Act that a person may, by written application to the Minister, request that the cancellation of the entry permit be reviewed entitles him to present his case. This is, in fact, what happened here because, by letter of 20 January 1989, the Department of Foreign Affairs advised the plaintiff to "Please submit your appeal in detail for the Committee’s consideration to my office by Wednesday 25 January 1989". From all of this it could be argued that the plaintiff was, in effect, prevented from giving his reasons to the Committee because he did not know what charge he had to answer.

I think a further matter is raised that is also arguable and that is that, on the same day that the entry permit was cancelled under s 6 of the Act, the plaintiff was ordered to be removed from the country as his presence was unlawful, within seven days. This, it could be said, effectively prevented his request for review being determined within the time available.

I think that these two matters raised substantial questions based on the Constitution which could only be properly decided upon a proper assessment of the evidence and upon hearing argument. The plaintiff clearly has a sufficient interest in the matter. For those reasons I think it just that he should be given leave to apply for judicial review.

Leave to apply for judicial review granted

______________________

Lawyer for the plaintiff: K Y Kara.
Lawyer for the defendants: State Solicitor.