N7187 
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA No. 38 of 2018

JASHIM JASHIM
Applicant

V
MINISTER FOR IMMIGRATION 
Respondent

Waigani: Tamate, J
2018: 14, 19, 22 March

INJUNCTION - Interlocutory Injunction – Plaintiff seeking restraining orders to prevent his deportation -  Whether National court can grant such order when same relief refused by Supreme Court. 

PRACTICE AND PROCEDURE – Whether National Court can entertain similar reliefs when there is another Similar Human Rights Application by same parties before Supreme Court - Whether abuse of process -  Is Judicial Review proper when challenging the decision of the Minister to deport Applicant. 

Cases cited:

Yagon v Nowra No. 59 Ltd [2008] PGNC 82; N3375 
Employers Federation of PNG v PNG Waterside Workers & Seaman’s Union & Ors (1982) N393
Ewasse Landowners Association Incorporated v Hargy Oil Palm Ltd (2005) N2309 
Golobadana No. 35 v BSP (2002) N2309 (Not quoted in this Ruling)
Craftworks Niugini Ltd v Allan Mott (1997) SC525
Medaing v Ramu Nico Management (MCC) Ltd [2010] PGNC; N4127 
Norman Namah & Ors v Hon. Rimbink Pato, Minister for Foreign Affairs & &Ors (2016) SC1497
Boochani v Independent State of Papua New Guinea [2017] PGSC 4; SC1566
Gobe Hangu v NEC and Others [1992] N1920
Robinson v National Airlines Commission [1983] PNGLR 478
Ramu Nico Management (MCC) Limited and Others v Tersie and Others [2010] SC1075
Louise Medaing v Ramu Nico Management (MCC) Limited [2011] SC1156
Premdas v The State [1979] PNGLR 329
Michael Tatakis [1996] PNGLR 90

Counsel:

Ms Jermah Kambao, for Plaintiff/Applicant
Ms Jacinta Naphal, for Defendant/Respondent

RULING
29 March, 2018

1.	TAMATE, J:	The Applicant has filed a Human Rights application (HRA) under Order 23 of the National Court Rules alleging certain breaches of his rights under the Constitution of Papua New Guinea. He is seeking certain reliefs and orders in the following terms:

(a)	An interim order restraining the Minister for Immigration and Boarder Protection from removing him from PNG until further Order of the Court;
(b)	An order preventing his removal from PNG to Bangladesh;
(c)	An order compelling PNG Government to reconsider his refugee and other protection claims according to law; and
(d)	An order his release from detention.

2.	He has filed a Notice of Motion on 12th March 2018 seeking interim injunctive orders to restrain the Defendant and his agents, servants and any other person from deporting the Applicant or carrying out any exercise of deporting the Applicant pending the outcome of these proceedings.

3.	He has filed an affidavit in support of his Notice of Motion on 12th March 2018 and claims the application is urgent as his life is in danger if he is deported.

Background

4.	The Applicant hails from Bangladesh. He is an asylum seeker initially detained at Manus Island Detention Centre. He is now currently detained at Bomana CS awaiting deportation by the PNG Government. He came as an asylum seeker on a boat which the Australian Immigration and Boarder Protection identified him as Boat Identification Number ETA066. He was transferred with other asylum seekers to Manus Island (MIRPC) to have their refugee status processed. He was considered to be a non-refugee with some others after the formal processes on assessment were conducted and concluded. He was therefore ordered for deportation to his country by the Defendant.

5.	The Applicant holds strong fears that if he is deported back to Bangladesh he will suffer and be subjected to threats and other serious harm to his life.

6.	He claims that his refugee status was not considered properly accordingly to the laws of PNG and under international law. He further believes that GoPNG’s assessment in relation to the Department Risk Assessment (DRA) was not made accordingly to law for the reasons that:

•	No reasons for decision was given, it is unclear on what evidence was filed or relied on to come up with its findings; and

•	He did not attend one interview while the two he attended were short. He was sick and not clear as to whether his mental health condition and other circumstances were taken into account.

7.	In support of his application he relies on his affidavit in support and strongly urges the Court to grant him interim restraining orders to prevent his deportation. He states that the decision to deport him is not proper when his assessment report on his refugee status confirmed his life was in danger.

8.	The only evidence provided by the Applicant is in his affidavit apart from what his family in Bangladesh has been telling him regarding the current events in Bangladesh, on some of the matters that he has referred to in his affidavit and submissions.

Submission by Applicant

9.	The Applicant submits that if he is deported back to his country in Bangladesh there will definitely be breaches of his certain rights under Sections 35, 36, 37 and 41 of the Constitution namely:

Section 35 – Rights to life
Section 36 – Freedom from inhuman treatment
Section 37 – Protection of the law
Section 41 – Prescribed Acts
Section 57(1)(3) – Enforcement of Guaranteed Rights and Freedoms
Section 155(4) Inherent Jurisdiction of the Court.
10.	He submits that he is equally protected by the Constitution as a Non-Citizen because the Preamble of the Constitution of PNG clearly confirms that under “Basic Rights”.

11.	WE HEREBYACKNOWLEDGE that, subject to any restrictions imposed by law on non-citizens, all person in our country are entitled to the fundamental rights and freedoms of the individuals, that is to say, the right, whatever their race, tribe, place of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:-

(a)	Life, liberty, severity of the person and the protection of the law; and
(b)	...”

12.	He submits that he was not given the opportunity to participate meaningfully in interviews conducted as part of the process, thus he was denied principles of natural justice.

13.	He further submits that if the restraining order is not granted he would ask the PNG Government to kill him here and send his body back, because he fears for his life if sent back to Bangladesh.

14.	Plaintiff submits that if he is sent back, then that would breach the principles of non-refoulement as per Article 33 of the Convention relating to status of Refugees.

Case Law

15.	The Plaintiff relies on the case of Employers Federation Rights of Papua New Guinea v PNG Waterside Workers and Seaman’s Union and Others [1982] PGNC 24; N393 in seeking this interim injunction. The principles required for granting or refusing interim injunctions are:

(a)	Is there a serious question to be tried?
(b)	Whether the balance of convenience favours the granting of the injunction.
(c)	Whether damages is an adequate remedy.
(d)	Whether there is an undertaking to damages.
(e)	Whether status quo will be preserved.

16.	He submits that there is a serious question to be tried as principles of natural justice were not accorded to the Plaintiff. He further submits that the balance of convenience favours granting of the application to protect the Plaintiff from been deported.

17.	Damages will not be an adequate remedy given the fact that his life will be at risk. Furthermore, that granting of the restraining order will maintain the status quo pending the determination of the substantive issues.

Respondent’s Case

18.	The Respondent has strongly opposed the motion and submits that the matter be dismissed in its entirety on very important grounds. He relies on two affidavits in response to the Plaintiff’s application namely:

(a)	Affidavit of Solomon Kantha – Chief Immigration Officer sworn/filed on 13th March 2018; and

(b)	Affidavit of Jacinta Naphal – Lawyer for Defendant sworn/filed on 12th March 2018.

19.	Solomon Kantha has deposed in his affidavit giving the background on the following:

(i)	Regional Resettlement Agreement (RRA) – An arrangement entered into by GovPNG and GovAus on 19th July 2013 purposely to process refugee claims of unauthorised maritime arrivals to Australia and resettle in PNG in accordance with the 1951 Convention relating to the status of Refugees and the Migration Act 1978. That the refugees were treated fairly and humanely and further that regular inspections (of MIPC & the transferees) were carried out by UNHCR for refugees. The Commonwealth Ombudsman (of the Commonwealth states) and International Committee of the Red Cross.

(ii)	Exemption Notice – Minister for Foreign Affairs gave exemption to the transferees into PNG without any valid entry permit pursuant to his powers under the Migration Act for the purpose of processing their refugee status.

(iii)	Transferees Processing and Removal –This is the process followed in determining refugee status and removals, powers of the Minister to remove non-refugees under the Migration Act. Once a determination is made a deportation Risk Assessment is conducted.

(iv)	Applicant Jashim Jashim – He was assessed and the determination made on 16th October 2016 was that he was a non-refugee in that he did not meet the relevant criteria to be determined as a refugee. He has no valid PNG Entry permit and was never granted one. The exemption issued earlier by the Minister allowing his entry into PNG automatically ceased upon such determination thus rendering his presence in PNG illegal. A removal order and direction as to custody was issued by the Minister.

20.	Mr. Kantha claims that all the transferees were properly assessed and assessment reports were made on each of their status.

21.	For the Applicant his Refugee Assessment Review (RAR) was conducted and a report was prepared as “Refugee Assessment Review Outcome” (Annexure “I” of Affidavit of Solomon Kantha). On the basis of this report, the Defendant (Minister) made his decision under the Migration Act that the Applicant was a non-refugee therefore was subject to deportation. This decision was made on 16th October 2016 (16 months ago).

22.	Affidavit of Jacinta Naphal:  She deposed in her affidavit that she is the lawyer for the Defendant in this proceeding. Applicant is in a group of 730 other asylum seekers from MIRPC who commenced proceeding in the Supreme Court in the case namely: “Enforcement pursuant to Constitution, Section 57, Application by Behrouz Boochani & 730 Ors v The State – SCApp. No. 17 of 2016”.

23.	In summary the Applicants are seeking enforcement under Section 57 of the Constitution for breach of certain rights. This application came about as a result of an earlier Supreme Court decision declaring that the detention on MIRPC was unconstitutional: Norman Namah, & Ors v Hon. Rimbink Pato, Minister for Foreign Affairs & &Ors, SCA 84 of 2013 (2016) SC1497.

24.	In the affidavit of Ms Naphal, the decision of the Supreme Court on the application for interlocutory injunction has been referred to and marked as Annexure “C”: Boochani v Independent State Papua New Guinea [2017] PGSC 4; SC1566.

25.	In this case the Supreme Court refused the motion seeking restraining order against the Minister from deporting the applicants. This decision was made on 13th March 2017.The substantive matter is currently been progressed for trial.

Submission

26.	The Defendant has strongly submitted for the order sought in the notice of motion to be refused and has advanced the following grounds why the whole matter should be dismissed in its entirety:

(i)	Capacity: The Defendant has not been identified and named in his capacity as the Minister for Immigration and Boarder Protection. He should be named as the person against whom the action is brought for any breach or infringement of rights has been caused: Human Rights Application by Michael Tatakis [1996] PNGLR 90. 

(ii)	Abuse of Court Process: The applicant had failed to apply for review of the Minister’s decision on his refugee status as well as the deportation order for his removal. Instead he had gone to the Supreme Court seeking damages for breaches of his human rights under sections 37 and 42 of the Constitution. 

27.	The Applicant was properly assessed of his refugee status and found to be a non- refugee on 16th October 2016. Applicant has not challenged this decision by way of a Judicial Review under Order 16, Rules 1 and 2 of the National Court Rule and Section 155(4) of the National Constitution. He has come to this Human Rights Court seeking orders to compel the PNG Government to reconsider his refugee and other protection claims upon learning of his deportation to be effected on 3rd March 2018.

28.	Seeking Judicial Review would be the proper approach upon which Plaintiff would be able to seek restraining orders so that the review of his refugee status could be done, but that would also be subject to leave been sought to file Judicial Review in the Judicial Review Court.

29.	Defendant also submits that Plaintiff does not have an arguable case with a strong chance of success. The matters he is raising are matters he raised when his refugee status was assessed through the lawful process used through interviews and country information and other sources.

30.	Since the decision that he was not a refugee, he did not do anything but joined his other 730 Asylum Seekers to apply for enforcement under Section 57 of the Constitution for reasonable damages for breach of their rights under Section 37(1)(17) and 42(1),(2),(5) of the Constitution.

31.	As a result of that application, they also applied for restraining orders from the Supreme Court to prevent their deportation pending their application in the Supreme Court (SCApp. No. 17 of 2016) by Boochani and 730 Others. The Supreme Court however, refused their application for restraining orders on 13th March 2017.

32.	The Supreme Court held that there was no nexus (connection) between the interim relief sought and the relief sought in the substantive matters. Although there appeared to be important issues and questions for the substantive hearing the Plaintiffs failed to show any connection with interim relief they were seeking.

33.	The Supreme Court also made certain observations in the above case in that the Plaintiff/Applicants failed to raise or challenge the process that was applied in determining the refugee status in the substantive action yet they tried to raise it in the interlocutory application.

34.	On paragraph 17 of that decision by his honour Chief Justice, Sir Salamo Injia stated that:

“The substantive action does address some of the critical issues that stem from the closure of MIRPC which were not addressed by the full court in SCA 84 of the 2013. However, I do agree with the Respondents that the process applied to determine the refugee status which is under serious challenge in this interlocutory application is not specifically challenged in the substantive action and therefore the necessary nexus is lacking”.

35.	In the present case the applicant in this HRA application is seeking restraining orders on the Defendant to deport him back to his country as well as an order to compel the Government of Papua New Guinea to reconsider his refugee status and other protection claims according to law.

36.	He never applied to the National Court under Section 155(4) of the Constitution for a review of the decision of his refugee status and the deportation order since 16th October 2016.

Circumstances of the Case

37.	The Applicant’s substantive claim is for reconsidering his refugee status or in other words compelling the GovPNG to review the decision of his refugee status. This can be by way of a judicial review of this administrative decision by the Defendant declaring  the Applicant as a non-refugee thereby subjecting him for deportation to his own country, Bangladesh. Order 16 of the National Court Rules and section 155(4) of the Constitution would be the appropriate procedure on which a challenge or review of the Defendant’s decision could be mounted.

Question:  Can the National Court grant the same interim reliefs that had been refused by the Supreme Court?

38.     Ans: The answer would be No.  There is no legal challenge on the deportation order nor the process under which the determination of the refugee status of the applicant and other asylum seekers was conducted. The process according to the respondent was conducted fairly and according to the laws and processes of PNG and international laws and Conventions dealing with human rights and the status of Refugees. The Assessment reports referred to in Annexures “I” and “J” in Mr. Solomon Kantha’s affidavit clearly provides the information and the process that was used and applied for assessing the refugee status. 

39.     The higher Court had considered the same issues and interim reliefs and refused the granting of interim injunction to prevent their deportation pending their application before the Supreme Court for damages for breach of their Constitutional rights. There is no utility upon which this Court can grant the same interim orders.

Law on Injunctions

40.      The law on injunction is well settled and have been considered and applied in many cases in our jurisdiction. An injunction will be granted if (i) there is a serious question to be tried; (ii) damages will be an adequate remedy; (iii) the Plaintiff provides an undertaking as to damages; (iv) it is demonstrated that the injunction should be granted on the balance of convenience; (v) interest of justice. 

41.      Other factors such as availability of alternative remedies, whether there has been laches (delay): Employers’ Federation of Papua New Guinea vs Waterside Workers Union [1982] N393, Craftworks Niugini Pty Ltd vs Allan Mott [1998] PNGLR 572; Gobe Hangu vs NEC and Others [1992] N1920; Robinson vs National Airlines Commission [1983] PNGLR 478; Ramu Nico Management (MCC) Limited and Others vs Tersie and Others [2010] SC1075, Louise Medaing vs Ramu Nico Management (MCC) Limited [2011] 1156, Boochani vs State [2017 SC1566.

Question: Can the interim injunction be granted to the Plaintiff/Applicant in consideration of the principles above?

42.       Is there a serious question to be argued and is there a strong chance of success?  The Plaintiff has not applied for review of the decision by the Defendant regarding his refugee status and his deportation order since the date he was declared a non-refugee. He is seeking orders to compel GovPNG to reconsider his refugee status and other claims (not specified) after 16 months from that date. In the absence of a review there is no serious question for the substantive hearing.

43.      The Applicant had knowledge of his deportation per his refugee status as of 16 October 2016 but failed to apply for review. Even after the Supreme Court refused the similar order for restraining order he could have filed for judicial review when he had a lawyer representing him and others in SCApp No. 17 of 2016. He has instead come to the Human Rights court seeking orders to prevent his deportation, and to compel the GovPNG to reconsider his refugee status and other claims. This is a clear case of abuse of the Court process. The plaintiff is having a second attempt for the same relief now in the lower Court (second bite at the cherry).

44.       Balance of Convenience: The GovPNG has done all it can to process the refugee status of the many transferees (asylum seekers) including the applicant and has spent time and resources to conduct this process. In the absence of any challenge to the decision and the assessment of the refugee status by way of judicial review there is no status quo to be maintained thus the balance of convenience should favour the GovPNG and interim injunction should therefore be refused. 

45.      In this case there is no such review filed. The Applicant in his HRA Statement Claims there are legal errors in matters that were raised in his assessment report which made the final Report unlawful.

46.      Undertaking as to Damages – The Plaintiff has filed an undertaking as to damages however, is it genuine considering his current status? Does he have the means to pay if ordered?

47.      Is damages an adequate remedy? The Plaintiff and others have an application for damages before the Supreme Court (SCApp. 17/2016. It is therefore safe to say that damages would be an adequate remedy if interim injunction is refused. 

48.      Interest of Justice – Would it be in the interest of justice to grant the interim injunction? The applicant and other asylum seekers’ refugee status were considered and assessed according to the laws of PNG and other international laws and conventions. Some were declared non refugees and some were declared genuine refugees. In the SCApp 17 of 2016, his honour Chief Justice Sir Salamo Injia said:

“The govPNG has applied its own laws and I assume the UN Convention on Refugees to process the asylum seekers and found the 205 including the 166 applicants to be non-refugees and decided to return them to their home country. There is evidence before us from the respondents to suggest that the processing has been done carefully, applying relevant laws and processes under those laws. The number of transferees appearing under the three categories (Refugees, Non-Refugees & Asylum Seekers) reflects a carefully thought out and applied process that has produced a fair outcome for this group of asylum seekers. I reach this inference from the number of transferees involved and the number that have been processed so far...

A screening and decision-making process that yields a very high percentage (69%) of asylum seekers receiving “refugee” status bespeaks of a process that has been fair and merit-based. The high number of refugees has now placed the govPNG and govAUS under enormous and onerous responsibility to settle them in a new home country of their choice including Australia and PNG. The process could not get any fairer than this. It would seem unfair, cause great inconvenience and financial hardship and cause prejudice and complicate the rights and obligations of the govPNG and govAUS under their domestic and international law, for this Court, to compel the govAUS and govPNG to do more than their share of meeting their international obligations to help “asylum seekers” in addressing their plight.”

49.     To repeat the whole process for the applicant and others who may apply for the same will be an extra burden to the govPNG. It will not be in the public interest to reassess all the asylum seekers all over again. The sovereignty of PNG must also be respected including its laws and processes when dealing with non-citizens. This was raised in Premdas v The State [1979] PNGLR 329 where it was stated:

“We believe the right to limit the movement of foreign citizens is part of a country’s sovereign rights, and should be retained as such. This is not to say that we consider that foreign citizens should be unreasonably restricted in regard to parts of the country to which they may travel. We simply believe that the full power of Parliament to make appropriate laws to limit the movement of non-citizens in the interest of all Papua New Guineans citizens must be retained.”

Exercise of Discretion

38.	In light of the above discussions and taking into account the evidence and submissions from parties including the case laws referred to above I am of the view that there has been a clear case of abuse of the Court process. That the Plaintiff and others had earlier made a similar interim application for injunction to the Supreme Court but was refused. He then has come to the human rights court seeking the same or similar reliefs to prevent his deportation and seek an order to compel the GovPNG to reconsider his refugee status.

39.	In the exercise of my discretion, the restraining order sought in the notice of motion preventing the Minister deporting the Plaintiff/Applicant is hereby refused.

40.	In light of the above and the failure to file a review, this HRA proceedings is dismissed in its entirety for abuse of process pursuant to Order 12 Rule 40(1)(c) of the National Court Rules.

The Court orders accordingly.

Public Solicitor:	Lawyers for the Plaintiff/Applicant
Solicitor-General:  Lawyer for the Defendant