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Rahmati v Independent State of Papua New Guinea [2018] PGNC 325; N7468 (13 September 2018)

N7468

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) No. 8 OF 2018

FARHAD RAHMATI
Plaintiff

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Tamate, J
2018: 24^th May &13^th September

HUMAN RIGHTS - An application for enforcement of human rights pursuant to Section 41 of the Constitution seeking orders to quash an administrative decision that refused granting of refugee status.

PRACTICE AND PROCEDURE - Whether Section 5 Notice under Claims By and Against the State Act, 1996 is necessary for application by originating summons seeking to quash decision refusing to grant refugee status pursuant to Section 41 of the Constitution.

PRACTICE AND PROCEDURE - Whether an application seeking an order to quash such an administrative decision and to re-determine the refugee status according to law before the Human Rights Court is an abuse of Court process pursuant to Order 12 Rule 40(1)(c) of the National Court Rules.

The Plaintiff has filed an originating summons proceedings challenging the decision of the Defendant that refused him refugee status. He claims he was not given a fair hearing according to law as per the Deportation Risk Assessment (DRA) report that was done. He is one of those many asylum seekers who had been transferred in from Australia into Papua New Guinea through a Memorandum of Agreement between both Governments for processing of their refugee status at the Manus Island Regional Processing Centre.

Held:

(1) Section 5 Notice under Claims By and Against the State Act, 1996 is not required for an application seeking to quash decision refusing to grant refugee status to Plaintiff.

(2) An application to quash an administrative decision in the Human Rights Court is not proper as Judicial Review court is the proper court to challenge or quash such decision through judicial review.

(3) The application to quash such administrative decision before the Human Rights Court is an abuse of the Court process thus proceedings is dismissed in its entirety pursuant to Order 12 Rule 40(1)(c) of the National Court Rules.

Cases Cited
Asiki v Zurenouc, Provincial Administrator [2005], SC797 (28 October 2005)
State v Downer Construction (PNG) Ltd [2009] PGSC51; SC979
Thomas Karo v The Commissioner of Correctional Services and The State, HRA 239/2017 [Unreported]
Kathrine Mal v Commander, Beon Correctional Institution [2017] PGNC 87; N6710 (8 May 2017)
Boochani v State [2017] PGSC 44; SC1643 (15 December 2017)
Frederick Martins Punangi v Sinai Brown [2004] PGNC 120; N2661
Jashim Jashim v Minister for Immigration [N7187], HRA 38/2018

Counsel
G. Shepherd, for the Plaintiff
C. Kuson, for the Defendant

13^th September, 2018

1. TAMATE, J: This is an application by way of Notice of Motion filed by the Defendant seeking orders to dismiss the proceedings in its entirety as being an abuse of court process for failure by Plaintiff to serve Section 5 Notice pursuant to Claims By and Against the State Act, 1996.
2. The Applicant is an asylum seeker at Manus Island Regional Processing Centre. He was declared a non-refugee by the Government of Papua New Guinea after the normal determination process including other asylum seekers. He has filed an originating summons challenging that decision and seeking orders that:
   • (1) Pursuant to Section 41 of the Constitution, that the Defendant’s decision to refuse granting him refugee status in view of the result of his Deportation Risk Assessment (DRA) is:
     • (a) harsh or oppression, and
     • (b) is not warrant by, or is disproportionate to the requirements of the particular circumstances of the particular case, and
     • (c) is otherwise not, in the particular circumstances justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

and is consequently unlawful, and

(2) An order that the Defendant re-determine the Plaintiff’s application for refugee status, and make such re-determination according to law.

Defendant’s application

3. The Defendant relies on the Affidavit of one George Akia sworn and filed on 03 May 2018 in support of its application. Mr. Akia basically confirms from his file search of the Court file that Plaintiff has filed this originating summons proceedings on 27 March 2018 and has served on the State on 05 April 2018.
4. He also deposes that Plaintiff failed to serve Section 5 Notice pursuant to the Claims By and Against the State Act 1996 which he states is a pre-requisite for any claims or action against the State prior to filing his originating summons proceedings.
5. Ms Kuson for the Defendant submitted that this proceeding should be dismissed as being an abuse of Court process. She has relied on various case law in support of the application to dismiss such as: State v Downer Construction (PNG) Ltd [2009] PGSC51; SC979 and few other cases.

Plaintiff’s Response

6. Plaintiff’s Counsel has responded by stating that the proceedings instituted by Plaintiff is for orders seeking to quash an administrative decision by the Defendant to refuse him refugee status, which they claim to be harsh and oppressive pursuant to Section 41 of the Constitution.
7. The Plaintiff submits that this is an application to quash a decision and is not a claim for damages or compensation. He states that Section 5 Notice is not necessary for such an application.
8. He relies on the Supreme Court Case of Asiki v Zurenuoc, Provincial Administrator [2005], SC797 (28 October 2005) where the Court held amongst other orders that Section 5 Notice is not required for proceedings commenced for judicial review pursuant to Order 16 of the National Court Rules and further that it is for claims based on contract, tort or for actions for breach of Constitutional rights pursuant to Section 57 and 58 of the Constitution.
9. State v Downer Construction (PNG) Ltd [2009] PGSC51; SC979 – This case held that proceedings commenced by way of arbitration against the State does not require notice under Section 5 of the Claims By and Against the State Act 1996. The Court did not refer to the earlier case of Asiki v Zurenuoc (supra) when considering this issue. It also discussed the definitions of the words namely, “suit”, “action” and “claim”.

The Issue

10. For the purpose of this application the following issues are necessary for determination:

(1) Whether the proceedings by Plaintiff to quash the decision of Defendant to refuse granting him “refugee status” is an abuse of Court process as a result of non-compliance with Section 5 Notice pursuant to Claims By and Against the State Act 1996?
(2) Whether the Human Rights Court is the right Court to review or challenge an administrative decision of the Defendant regarding refugee status. Is that abuse of court process pursuant to Order 12 Rule 40 (1)(c) of the National Court Rules?

Submission by Defendant

11. The Defendant claims that by operation of Section 5 of Claims By and Against the State Act 1996, the Plaintiff is required to serve a notice on the State prior to filing his originating process.
12. In support of its application, Defendant relies on the Affidavit of George Akia filed on 03 May 2018 and case laws on the issue of Section 5 Notice of Claims By and Against the State Act 1996.
13. The Defendant submits that it is a requirement that Section 5 Notice must be served by Party bringing an action or suit against the State.
14. It relies on the case of State v Downer Construction (PNG) Ltd [2009] PGSC51; SC979 where Court considered the issue of Section 5 Notice and held that in arbitration proceedings such notice is not required because it is not a legal proceedings. It has its own procedures under the Arbitration proceedings Act.

Law

15. For the purpose of this application it is necessary to look at the following sections relevant to the issues before this court.
    • ➢ Constitution: Section 41 - Proscribed Acts.

“(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 requirements 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...”

16. The Claims by and Against the State Act, 1996: Section 5:

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to–

(a) the Departmental Head of the Department responsible for justice matters; or

(b) the Solicitor-General.

(2) A notice under this section shall be given–

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as–

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by–

(a) personal service on an officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act 1953.

17. The intention of Parliament when passing this legislation; Claims By and Against the State Act 1996 was to manage and regulate claims and suits or actions that were been brought against the State in monetary claims which included Police brutality cases for damages and compensation. It is clear from the speech by Mr. Arnold Marsipal, former Minister for Justice on 20^th November, 1996 during the Parliamentary debate where he stated the following:

“Mr Speaker, I take great pleasure in introducing this Bill which will safeguard the interests and the finances of the State.

In recent years, a large number of civil claims and other claims for compensation on infringement of human rights have been made against the State in respect of alleged unlawful actions by public servants. These claims often included compensation claims of police brutality against the people. (my emphasis)

There are set procedures laid down by the law governing and regulating the bringing of such claims to court. Under the present circumstances, it is difficult for the State lawyers to comply with time limits and other court restrictions. The numbers of claims are increasing alarmingly.

At the same time, lawyers for claimants seem determined to try every possible avenues to press their clients’ cases, using every loophole they can find. This frequently results in unwarranted payouts, thereby putting increased unnecessary pressure on the State resources.

In order to overcome the problems being encountered and to ensure that the law deals fairly with both the State and its citizens, various measures will be put in place by this Bill. This include a scheme of prior notice of making a claim against the State. It will be similar to the scheme of notifying the Motor Vehicle Insurance Trust of proposed claims. Service on the State cannot be done by mail. It must be personally served on the Attorney-General or the Solicitor-General or left personally at his office. However, lawyers operating outside Port Moresby can still accomplish personal service through their city agents. ...

The Bill ... will go a long way towards remedying the impossible situation the Government lawyers find themselves in when trying to protect the interests of the State.”

18. I have recently discussed the issue of Section 5 Notice in an unreported case of Thomas Karo v The Commissioner of Correctional Services & The State, HRA No. 239 of 2017 after considering the various cases that had deliberated on this issue. Taking into consideration the term “claim” and the “intention of Parliament” discussed in the cases of Asiki v Zurenuoc, Provincial Administrator [2005]; SC797 (28 October 2005) and State v Downer (PNG) Ltd [2009] PGSC51; SC979, I am of the view that Section 5 Notice is not required for actions that are not monetary claims in damages or compensation. I agree with Cannings, J in his definition of “claim” in the case of Kathrine Mal v Beon Correctional Service Commander [2017]; PGNC 87 (8 May 2017) where he stated the term “claim” under Section 5 to mean “a monetary claim or a claim for an order such as an injunction that would involve direct cost or prejudice to the State.”
19. In the present case this originating summons proceeding is not an action or claim in monetary terms but a court action seeking orders to quash a decision of the Defendant refusing to grant refugee status to the Plaintiff by virtue of Section 41 of the Constitution claiming that such refusal was harsh or oppressive in view of the Deportation Risk Assessment Report (DRA).
20. In considering this matter I am of the view that Section 5 Notice is not required in this proceedings as it is not a claim within the meaning of claims under Claim By and Against the State Act 1996. I follow and adopt my ruling in the case of Thomas Karo v The Commissioner of Correctional Services and The State, HRA 239/2017 (supra) where I stated at page 10 (paragraph 40):

“It is very clear that the purpose of the Bill and the subsequent passing of CBASA, 1996 is for claims that are monetary in nature for actions or suit in court for damages or compensation, in contract, tort or for breach of human rights under Section 57 and 58 of the Constitution.”

21. Section 5 of Claims By and Against the State Act 1996 and Section 54(6) of Motor Vehicles (Third Party Insurance) Act are similar in terms when requiring a claimant to give 6 months’ notice of his intention to make a claim. Obviously, in both these legislations the claims are in damages and monetary terms. Therefore, it is only proper that when “claim” is given its restrictive meaning according to the intention of Parliament the Section 5 Notice should only be necessary for monetary claims.
22. Section 57 of the Constitution gives a person the opportunity to seek enforcement of a right of freedom in the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of Parliament. The Court can on its own initiative or on application by any person who has an interest in its protection and enforcement can enforce a right or freedom accordingly. In cases of a person unable to fully and freely exercise his rights for enforcement a person can represent him or act on his behalf whether or not by his authority.

23. Subsections (1) and (3) of Section 57 of the Constitution provides:

“Enforcement of guaranteed rights and freedoms”

“(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority...

(2) ....

(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

24. This provision allows for enforcement of a right of freedom upon application by an applicant or by the Court on its own initiative. If an application for enforcement of a right of freedom is made under Section 57 which is not monetary in nature should Section 5 Notice be required? The Constitution is the supreme law and cannot be subjected to the provision of the Claims By and Against the State Act which is an Act of Parliament. The intention of Parliament is clear that the legislation was passed to regulate claims against the State in monetary terms in damages or compensation.

Questions for consideration

25. The following questions are considered in these manner:

(1) Whether Section 5 Notice is required in the present case and whether there has been an abuse of the Court process?

I would say No for the reasons given above, thus it is not an abuse of the Court process.

(2) Whether the Plaintiff has properly come to this Court to challenge the decision of the Defendant to refuse him refugee status?

The facts and circumstances of this case show that the Plaintiff is challenging the decision of the Defendant that refused him Refugee status. He is seeking orders to quash the decision and order the Defendant to re-determine his refugee status. The Plaintiff is challenging an administrative decision and wants the Court to quash the decision as it is in breach of Section 41 of the Constitution.

26. In considering this question the Court needs to look at the background of the case involving the Plaintiff and other asylum seekers who had been detained at Manus Island Regional Processing Centre (MIRPC) where their refugee status had been processed.

27. I am reminded of some cases of other applicants that came before this Court seeking same orders including restraining orders against the State from deporting them pending their application before the Supreme Court in the matter of Boochani & Ors v The State, SCApp No. 17 of 2016 [2017] PGSC 44; SC1643 (15 December 2017).

28. The applicant is seeking orders to quash an administrative decision of the Minister for Foreign Affairs or Immigration even without seeking a review of such decision by way of judicial review pursuant to Order 16 of the National Court Rules, [Frederick Martins Punangi v Sinai Brown [2004]; PGNC 120; N2661].

29. The proper Court to deal with this application would be the Judicial Review Court therefore, I will adopt the same ruling as I did in the case of Jashim Jashim v Minister for Immigration [N7187]; HRA 38 of 2018.

In that case the applicant was seeking similar orders to quash the decision by the Minister for Immigration who refused granting him refugee status. He also sought orders for his refugee status to be re determined and sought restraining orders from been deported pending his application.

The Court refused the application as it found from the evidence provided that the PNG government had properly and lawfully determined his refugee status using its laws and International laws and Conventions on human rights and Refugees, etc...

The applicant in that case had also failed to appeal or apply for the review of the decision of his refugee status within the required period after the decision was made refusing him refugee status.

Upon failure to seek a review before the Judicial Review Court or appeal the said decision, this Court found that the applicant had abused the Court process therefore it refused the application and consequently dismissed the proceedings in its entirety.

30. The situation is similar here where the Applicant had not appealed the Defendant’s decision nor a review been sought in the Judicial Review court seeking orders of certiorari to quash this administrative decision and order a re- determination of his refugee status. He is a plaintiff (No.756) in the Supreme Court Application with Boochani & 730 Ors v The State – SC App. No. 17 of 2016, [2017] PGSC 44; SC1643 (15 December 2017) for enforcement of human rights pursuant to Section 57 of the Constitution. This matter is now been reserved for decision per advice from the Supreme Court Registry.

31. This issue was determined in the Supreme Court when the Plaintiffs sought among others, restraining orders from deportation pending the above application before the Supreme Court. His Honour, Chief Justice Injia stated:

“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.”

32. The determinations were done according to law by the Defendant using the relevant and necessary procedures according to the laws both domestically and internationally where some were given refugee status whilst others were refused refugee status. Unfortunately, the present applicant was refused refugee status like many others.

33. It would therefore not be in the public interest to re-determine the refugee status again as it will only be a costly exercise and would undermine the lawful processes that PNG Government had initially applied in the whole process. The sovereignty of this country must always be recognized and protected.

34. In light of the above discussions and the failure by the applicant to have this administrative decision reviewed by the Judicial Review Court pursuant to Section 155(4) of the Constitution and Order 16 of the National Court Rules, I am of the view that the originating summons proceedings by the Applicant is an abuse of the Court process therefore this matter must be dismissed in its entirety pursuant to Order 12 Rule 40(1)(c) of the National Court Rules.

Orders of the Court

35. The Court therefore orders that:

1. The Plaintiff is not required to serve Section 5 Notice in this application as the action is not in monetary terms for the purpose of Claims By and Against the State Act.
2. Pursuant to Order 12 Rule 40(1)(c) of the National Court Rules this proceedings is however dismissed in its entirety for being an abuse of the court process as Plaintiff has failed to apply for judicial review of the administrative decision refusing his refugee status before the Judicial Review Court pursuant Order 16 of the National Court Rules.
3. Parties to bear their own costs.
4. The file in this matter shall now be closed.
   

Orders accordingly.
_______________________________________________________________
Young & Williams Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendant