N3748

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 391 OF 2009

BETWEEN:

MOHAMED SHEKU SANNOH
Plaintiff

AND:

JOSEPH NOBETAU,
Chief of Immigrations, Office of the Immigration & Citizenship 
First Defendant

AND:

GABRIEL PEPSON,
Secretary, Department of Foreign Affairs & Immigration
Second Defendant

AND:

RT. HON. SAM ABAL, MP,
Minister for Foreign Affairs & Immigration
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Manuhu, J.
2009: 17 August

PRACTICE AND PROCEDURE – Application for leave for Judicial Review in the nature of mandamus requiring performance and discharge of statutory duty – Substantial interest – Exhaustion of other remedies – Arguable case – Promptness of application – Application for leave granted.

ADMINISTRATIVE LAW – Duty to give reasons – Failure to give formal advice on refusal to grant Permanent Residency Visa – Defendant not required to explain reason for the refusal to the Court – Court will not interfere with administrative prerogative. 

EQUITY – Applicant not holder of valid visa or permit – Failure to renew Dependency Visa – Family reasons – Applicant is married to a Papua New Guinean wife and has three Papua New Guinean children. 

Cases cited:

Abdullah v. Yaseen (2001) N2195, 
Erwin Guggemos v The Acting Minister for Foreign Affairs and The Independent State of Papua New Guinea [1987] PNGLR 352, 
Mision Asiki v. Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797, 
Niggints v Tokam [1993] PNGLR 66, 
Ombudsman Commission v Peter Yama (2004) SC747.

Counsel

S. Nepel, for the Plaintiff
T. Tanuvasa, for the Defendants.

17 August, 2009

1. MANUHU, J.: This is the ruling on the application for leave for judicial review made pursuant to Order 16 Rule 3 of the National Court Rules 1983. The substantive matter is in substance an application in the nature of judicial review under section 16 of the National Court Rules 1983 for mandamus requiring the defendants to perform and discharge their statutory duty under the Migration Act, Ch. No. 16.

2. It is convenient, at the outset, to understand how the plaintiff has come before this Court. Other facts would be discussed as and when necessary. The plaintiff is a 39 year old citizen of Sierra Leone. He is a builder by profession. He formalized his marriage with Annette Waninara, a Papua New Guinea citizen, on 18 July 1995 in Australia. They now have three children. The plaintiff first entered the country on a Dependency Visa on 18 October 1995. He has been residing in the country since then. 

3. The plaintiffs wife and children have been overseas since 2005 for educational reasons. Subsequently, on 24 March 2006, the plaintiff lodged his application for a Permanent Residency Visa. His Dependency Visa was current then. It expired while he waited for the outcome of his application. The plaintiff is no longer a holder of a current visa or any other permit to reside in the country.

4. The plaintiff was interviewed once in relation to his application. He says that he has not received any advice on the outcome of his application. But in his letter of 8 March 2007 to Director General, Immigration & Citizenship Division, the plaintiff wrote that a Michelle Daingo had advised him in July 2006 that his application was refused. The Court finds as a matter of fact that the plaintiff has been verbally advised of the refusal. He has, however, not received a formal advice. 

5. In an application of this nature, the grant of leave is at the Court’s discretion. In the process, the applicant must have sufficient interest in the matter in question or has a right which is being affected by the act or omission to be reviewed; the applicant must show that he has an arguable case; the applicant must show that all other remedies have been exhausted; and, the applicant must make the application promptly. 

6. The plaintiffs interest in the matter in question is his marriage to a Papua New Guinean citizen from which there are three children. He has invested K300,000 in the renovation and extension of the family residence at Section 105 Lapwing Drive, Gordons, National Capital District. He has been residing in the country since 1995. One can understand his interest in obtaining a Permanent Residency Visa.

7. He lodged his application in 2006. He was told that his application was declined. He has not received a formal advice. The failure to provide a formal advice or reason for the decision has to a certain degree affected the plaintiffs welfare and his Papua New Guinean family. His movements are restricted to the extent that he could not travel overseas to see his family. He could not travel to Sierra Leone. He feels like a prisoner. He has been a frustrated husband and father since 2006. 

8. It is contended, however, that the plaintiff does not have the standing to institute this proceeding on the basis that he does not hold a valid visa or permit. He is in the country unlawfully. 

9. I have been referred by Mr. Tanuvasa to the case of Erwin Guggemos v The Acting Minister for Foreign Affairs and The Independent State of Papua New Guinea [1987] PNGLR 352. It involves an application by a person holding no valid entry permit and no valid work permit for judicial review of a decision of the Minister of Foreign Affairs to cancel his entry permit and to order his removal from the country. 

10. It was held that a person who is a prohibited immigrant, by virtue of having no valid or current entry permit and no valid work permit (and not withstanding an incomplete application for citizenship) has no right to apply for relief under section 155 (4) of the Constitution. 

11. I have also been referred to the case of Abdullah v. Yaseen (2001) N2195 where an application for stay of deportation, on the basis that the applicant was a witness in criminal proceeding and a personal civil suit, was refused. 

12. I am of the view firstly that the cited cases do not stand for the proposition that a prohibited immigrant does not have a right to challenge his deportation in this Court. Neither do the cases suggest that a prohibited immigrant could not institute other proceeding in relation to other immigration disputes. 

13. This view is deductable from the Guggemos case, where Amet, J. said:

"Further his removal out of the country would not necessarily hamper the processing and consideration of his application for citizenship. His application can still be processed and considered on the merits with the provision of all of the necessary information whilst the applicant remains outside of the country, wherever that might be, until he is advised of the outcome of his application. "

14. It must follow, therefore, that an alien or a prohibited migrant, wherever he may be, who has a dispute with the appropriate immigration authority, could institute legal proceeding and be heard in this jurisdiction. 

15. Secondly, the cited cases are distinguishable. They are deportation cases where the applicants had to leave the country. In the Guggemos case, the applicant never had a valid visa or permit. His application was refused despite his pending application for citizenship. In the case of Abdullah v Yaseen, the applicant unlawfully entered the country. He attempted to stay his deportation because he was a witness in a criminal proceeding and he had a pending private law suit. His application was refused.

16. The Court is aware that the plaintiffs Dependency Visa has expired. It is now a matter for the appropriate authority to deal with. If he must be deported, which is an executive act under the Migration Act, this Court may not grant a stay for him to pursue this proceeding or wait for his application for a Permanent Residency Visa. 

17. This is where the cited cases can be distinguished from this case. Deportation is not the subject of this proceeding. The subject of this proceeding is his application for a Permanent Residency Visa, which he claims is not being handled properly, and has taken legal action for that reason. 

18. In the circumstances, I am satisfied that by reason of his marriage the plaintiff has the standing to seek judicial review of the manner in which his application is being handled by the defendants. 

19. The plaintiff must secondly show that he has an arguable case. His application was lodged on 24 March 2006. The plaintiff was verbally advised in July 2006 that his application was declined. He expected the advice to be in writing and has since then been attempting to obtain a formal written advice. Numerous inquiries with Immigration & Citizenship Division have all been in vain. He eventually engaged the services of Young & Williams Lawyers. 

20. The lawyers were advised by Immigration & Citizenship Division in a telephone conversation that the plaintiffs application was declined and that the matter was now with "compliance" as a result of "questionable" entry. The letter of request for an official or formal advice was not responded to. A further letter was sent to the Minister requesting a Ministerial Direction to the Director General to provide the formal advice concerning the outcome of the application. The Minister did not respond.

21. The plaintiff has come to this Court for assistance in his pursuit of a formal advice on the outcome of his application from the Immigration & Citizenship Division. 
22. He needs the formal advice to appreciate the reasons for the refusal. To him, his marriage of 13 years to a Papua New Guinean wife qualifies him to a Permanent Residency Visa. He wants to know how his application was refused and then take appropriate remedial action, if need be 

23. The duty to give reasons for a decision is a fundamental administrative law principle in this jurisdiction. It is derived from the principles of natural justice. It is part of the duty to act fairly. 

24. Where no reason is given, it could be assumed that there were no good reason for the decision: see Niggints v Tokam [1993] PNGLR 66, Ombudsman Commission v Peter Yama (2004) SC747 and Mision Asiki v. Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797.

25. It has been submitted, and the Court is aware, that the plaintiffs initial entry is questionable. Evidence suggests that he had obtained two Papua New Guinea passports under two different names. Indeed, as advised through Young & Williams Lawyers, the matter is now with "compliance" because of the questionable entry. 

26. However, the Immigration & Citizenship Division is not required to explain the refusal to the Court. And the Court will not interfere with the administrative prerogative of the Immigration & Citizenship Division in its consideration of the application in question. The only matter of interest to the plaintiff, and the Court, in this proceeding, is a formal advice on the outcome of the application. The plaintiff has come to this Court for that reason alone. 

27. It is secondly submitted that without a valid permit or visa, the plaintiff has not come to Court with clean hands. The plaintiff should have renewed his visa while waiting for his application for residency. He was told in July 2006 that his application had been refused but he did not do anything to renew his Dependency Visa. 

28. I am of the impression that the plaintiff was overly confident of obtaining a Permanent Residency Visa on the grounds of his 13 year marriage to a Papua New Guinean wife. But it was stupid of him to not renew his Dependency Visa while waiting for a formal outcome to his application for a Permanent Residency Visa. 

29. However, the plaintiff probably has a good reason for acting so stupidly. His passport was with the Immigration & Citizenship Division which failed him on numerous occasions. The plaintiff felt like a prisoner and was a frustrated man at the relevant time. 

30. In any case, he had been making enquiries with the Immigration & Citizenship Division, which had his passport, since 2006. The authorities must have known that his Dependency Visa had expired. But not once did they advice him of the expiration and the need to renew his Dependency Visa. The Immigration & Citizenship Division is not merely a processing body. It has the duty to give appropriate advice and assistance to its customers, which it failed to do in this case.

31. I have also considered that the plaintiff has a Papua New Guinean wife and is the father of three Papua New Guinean children. He may have been stupid in not extending his Dependency Visa but there is no love lost between him and his family. His wife has stood by him in this application. It is not easy to deprive a wife and children of a husband and father. The Court has to be sensitive in appropriate cases. This case is one of them. For family reasons, therefore, I am prepared to overlook the plaintiffs stupidity. 

32. The collective effect of the above reasons is that I am not prepared to penalize the plaintiff for coming to court with his hands dirty. 

33. It is thirdly required of the plaintiff to demonstrate that all other remedies have been exhausted. The plaintiff, for two years or so, made numerous inquiries only to be told to return the next day, next week or next two weeks. His lawyers also followed up on his queries. The Immigration & Citizenship Division did not respond in writing. The lawyers wrote to the Minister for a Ministerial Direction to the Immigration & Citizenship Division to provide a formal advice on the refusal. The Minister did not respond. 

34. Without the formal advice, the plaintiff could not effectively challenge the refusal either administratively or judicially. He has to compel the Immigration & Citizenship Division to provide the formal advice. The Minister could not help him. He has appropriately come to this Court for assistance. 

35. I am satisfied, therefore, that all other administrative remedies have been exhausted. This proceeding is the only available remedy. 

36. The plaintiff must finally show that the application for judicial review has been made promptly. As I have mentioned, for two years or so, the plaintiff made numerous inquiries only to be told to return the next day, next week or next two weeks. His lawyers have also followed up on his queries. The Immigration & Citizenship Division did not respond in writing. The lawyers wrote to the Minister for a Ministerial Direction to the Immigration & Citizenship Division to provide a formal advice on the refusal. The Minister did not respond. 

37. The plaintiff has been making enquiries for three years. In all of those three years I could not find a period when he gave up and did nothing about his search for a formal advice. When he was told to return the next day, next week or next two weeks, he obliged with patience and in good faith. On the other hand, the Immigration & Citizenship Division could not produce a formal advice in three years. 

38. In the circumstances, the plaintiff should not be penalized for not instituting legal proceeding sooner. In other words, on his part, I am satisfied that the application has been made without delay. 
 
39. Before I conclude, it is convenient to be reminded that the Court is dealing with the application for leave only. The substantive application is a matter for another day. 

40. In the final analysis, the plaintiff has satisfied all the prerequisites for granting leave. Accordingly, pursuant to Order 16 Rule 3 of the National Court Rules 1983, I grant leave for the plaintiff to proceed with his application in the nature of a judicial review for an order in the nature of a mandamus requiring the defendants to perform and discharge their statutory duty under the Migration Act, Ch. No. 16 and ultimately provide a formal advice on the outcome of the plaintiffs application for a Permanent Residency Visa.

Orders accordingly.

__________________

Young & Williams Lawyers: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants