SC1633

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP 16 of 2017

ENFORCEMENT PURSUANT TO
CONSTITUTION SECTION 57

APPLICATION BY
BEHROUZ BOOCHANI
Applicant

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
First Respondent

AND:
HON PETRUS THOMAS
Minister for Immigration
Second Respondent

Waigani: Injia CJ
2017: 6th & 7th November

CONSTITUTIONAL LAW- Application for enforcement of Constitutional Rights – Applicant, an asylum seeker accommodated at Manus Island Regional Processing Center(MRPC)  which closed on 31st October 2017 – Applicant refusing to leave the Centre and move into Transit Centres situated away from  MRPC- Application for interim orders in aid of substantive relief - Exercise of discretion- Application refused.

Counsel: 

B. Lomai, for the Applicant	
 R. Bradshaw, for the Second Respondent

 7th November, 2017 

1.	INJIA CJ: The Applicant is an asylum seeker accommodated at the Manus Island Regional Processing Centre (MRPC) which closed on 31st October 2017. In his substantive application, he claims declaratory and injunctive relief to enforce certain fundamental rights guaranteed under the Constitution which he claims have been breached or threatened to be breached by the respondents. The application is made under Section 57 of the Constitution which gives this Court the jurisdiction to grant declaratory and injunctive relief to protect actual or imminent breaches of Constitutional rights. Such application comes within the original jurisdiction of the Supreme Court in aid of which interim relief may be granted by a single Judge of the Supreme Court under Order 3 Rule 3 (b) and rule 15 of the Supreme Court Rules 2012. I find that the application is properly before me.

2.	On 26th April 2016 the Supreme Court found the detention of asylum seekers held at the MRPC was unconstitutional and illegal and ordered the closure of MRPC by the governments of Australia and Papua New Guinea: Belden Norman Namah, MP and Leader of the Opposition v Hon. Rimbink Pato, Minister for Foreign Affairs & Immigration, The National Executive Council and The Independent State of Papua New Guinea (2016) SC1497. The Court did not fix a time line by which the Centre should be closed and how the future settlement of the asylum seekers would be addressed by the governments of Australia and Papua New Guinea. It is now agreed between the parties in the present proceedings that on Tuesday the 31st of October 2017 at 5pm, the governments of PNG and Australia closed the MRPC in compliance with the Supreme Court's decision. The applicant is amongst other asylum seekers who have refused to move out of the closed MRPC and to move into three new transit centres situated some distance away from MRPC that were built by the government of PNG with assistance from the government of Australia, to accommodate the asylum seekers pending decisions on their future settlement. 

3.	The application is contested by the second respondent. The applicant relies on his affidavit and that of his lawyer (Ben Lomai) whilst the second respondent relies on the affidavit of Mr Solomon Kantha (Acting Chief Migration Officer of the PNG Immigration and Citizenship Service Authority) and an affidavit of the second respondent’s lawyer (Robert Bradshaw). 

4.	 The case for the parties in brief are these. The applicant claims that since the closure of the MRPC, “the respondents have inflicted extreme forms of punishment on the asylum seekers in order to force them to vacate the Centre and move to the ELTC or Hillside Haus or East Haus Camp, which clearly violate sections of the Constitution including Section 36 (1) (the right not to be subjected to torture, inhuman treatment and punishment), 37(1) (the right of a person to full protection of the law) and Section 37(17) (the right of a person to be treated with humanity and respect for the inherent dignity of the human person)": See paragraph (a), at page 10 of the Application to Enforce Constitutional Rights filed on 30th October 2017 (“the Application”). The Application contains particulars of “extreme forms of punishment”, “the most extreme form of punishment employed by the Respondents thus far, is the denial of access to the basic amenities and necessities of life, by cutting off electricity, water, sewerage, sanitation to their compounds and demolishing and cordoning off buildings”: see paragraph (b) – (k) at pages 10- 15 of the Application. There is evidence to support these claims.  There is evidence of threats, intimidation and harassment of asylum seekers in the lead up to and during the closure of the MRPC and those are recurring daily in an effort to pressure the asylum seekers to vacate the MRPC and to move into the new transit Centres.  There is evidence that living conditions at the MRPC have become unbearable and the health and safety of asylum seekers are at risk. 

5.	The second respondent says the transferees were given adequate notice of the impending closure of the MRPC and that the PNG government assisted by the government of Australia took steps to construct the new transit centres to accommodate the asylum seekers. The transit centres offer accommodation facilities of good standard that are far better than those provided to other asylum seekers living in PNG. The facilities offer air conditioned rooms, dormitory style beds, communal bathrooms and spaces, laundry facilities and secure fencing. The asylum seekers have complete freedom to move to and from the transit centres. Bus service is also provided. Also provided are food, water, electricity, sanitation and sewerage, health care and living allowance at K280 per fortnight. Photographs of the facility are in evidence.  The applicant has been granted refugee status and refused to move out of MRPC and to move into one of two transit facilities built for “refugees”. He chose to remain behind in the closed MRPC and he has himself to blame for the hardships that he is facing. The applicant has chosen to stay in a confined military environment where movement to and from the premises is restricted and he cannot be complaining of restrictions on his movements. The respondent has closed the MRPC facility and restoring services will be costly and difficult. 

6.	 It is settled principle that the applicant must persuade the Court that there are serious questions to be tried on the substantive claim, the balance of convenience favours the grant of interim relief and damages would not be an adequate remedy. If damages were an adequate remedy then even if the applicant has serious issues to be tried, the interim relief may be refused: Airlines of PNG v. Air Niugini Ltd (2010) N4047 at 22 and 23 and PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126 at 30, PAC LNG International Ltd v. SPI (208) Ltd (2014) N5681 [24], Ramu Nico Management (MCC) Ltd v. Tarsie (2010) SC1075 [53].
7.	I am mindful that I am not dealing with the merits of the applicant’s substantive claim under which he is claiming the interim relief. Having heard arguments of both counsel  on the issues in the application for interim relief, I make some preliminary findings for purpose of determining the interlocutory application before me, as follows: 

(1)	The MRPC was established by agreement between the governments of PNG and Australia.

(2)	On 26th April 2016 the Supreme Court found the detention of asylum seekers held at the MRPC was unconstitutional and illegal and ordered the closure of MRPC by the governments of Australia and Papua New Guinea.

(3)	Both the governments of PNG and Australia, by agreement, closed the MRPC on 31st October 2017 at 5:00pm in compliance with the order of the Supreme Court.

(4)	In closing the MRPC, the governments of PNG and Australia discontinued supplies of food and drinking water, electricity, sewerage facilities, medical services, security and other services; and required the asylum seekers to vacate the MRPC and move into the three new Centres. The asylum seekers were told that if they chose not to leave the MRPC and move into the three Centres, they would do so at their own peril and would have to fend for themselves. 

(5)	The new transit Centres are situated some distance away from MRPC. They are the East Lorengau Transit Centre (ELTC) that has facilities to hold up to 400 asylum seekers who have been determined to be genuine "refugees", the West Lorengau Transit Centre (WLTC) that can hold over 200 asylum seekers determined to be genuine "refugees" and the Hillside Haus Transit Center (HHTC) that can hold up to 200 asylum seekers determined to be "non-refugees". These facilities offer reasonable accommodation of good quality with access to basic services including medical services and necessities of life including a fortnightly living allowance of K280.00 per asylum seeker. The asylum seekers are free to move about to and from the transit centres and to travel anywhere within PNG.

(6)	The three new Centres were built by the PNG Government with assistance from the Australian government.

(7)	At the time of its closure, the exact number of asylum seekers accommodated at the MRPC is not clear, however it is estimated at between 600-800.

(8)	Since the closure of the MRPC, it is not clear as to the exact number of asylum seekers that have left the MRPC and moved into the new Centres and how many have refused to move out of the MRPC. The evidence is that some are accommodated at the three new Centers whilst a large number of asylum seekers remain at the MRPC.

(9)	The applicant in these proceedings was determined to be a genuine refugee. He has refused to move out of the MRPC and take up residence at ELTC or HHTC for reasons which are referred to in paragraph 4 hereof. 

(10)	The continued presence of the asylum seekers in PNG is on the invitation of the PNG Government under exemption of entry requirements under the Migration Act that were granted by the Minister for Immigration in 2013 and on conditions that allow for the PNG Government to take responsibility over their presence and movement within PNG and for the PNG Government to determine their refugee status and take responsibility to settle the asylum seekers. Whilst they remain in PNG, the asylum seekers are subject to PNG laws and under PNG government control.

8.	What is not clear and I am unable to make any definitive and conclusive finding is on the question whether the PNG Government takes sole responsibility, legally speaking, to cater for the future welfare of the asylum seekers after the closure of the MRPC. There is no easy answer to this question as the question involves consideration of a wide range of matters, some of which involve consideration of relevant international conventions on asylum seekers that apply to PNG. In the absence of any conclusive determination by this Court of PNG's international obligations for asylum seekers living in PNG, I am in no better position to make any definitive findings in that regard. The same is said of Australia's obligations under international law to the extent that Australia may have some responsibility over asylum seekers that were destined for Australia but redirected to PNG to process their refugee status on PNG soil. 

9.	It seems clear from the thrust of my preliminary finding set out in paragraph 7 (10) above, that Australia's legal responsibility over the future welfare of the asylum seekers ended with the closure of MRPC which it operated, and it falls squarely on the government of PNG to take full responsibility over the future welfare of the asylum seekers. The PNG Government is duty-bound to take all necessary steps under its obligations under the Migration Act and its obligations under international law to cater for the future welfare and destiny of asylum seekers.  Australia's involvement in terms of any assistance it may provide to the PNG Government under any mutual arrangements  remain largely if not purely a moral responsibility, given that the asylum seekers were Australia-bound when they were redirected to PNG for PNG's assistance to  process their refugee status. The PNG Government, a sovereign nation, in its own right and with its eyes wide open, accepted full responsibility in the first place to accept these asylum seekers to enter PNG and it is duty-bound under domestic and international law to complete the task in settling their future appropriately in accordance with law. When this point is understood and accepted by everyone concerned and especially the asylum seekers, then it really may not matter which transit accommodation facility that is situated anywhere in PNG or on Manus Island  the asylum seekers are accommodated. There is little to no advantage to be gained by any asylum seeker on insisting on remaining at MRPC because Australia's involvement in maintaining the MRPC has ceased. The new facilities must be of reasonable standard and asylum seekers living in those facilities must be appropriately treated having regard to their quality of human life and human dignity.  Matters of costs and practical convenience for the government of PNG, the security and safety of asylum seekers and their freedom to move about freely and enjoy life are matters for the PNG Government to consider and cater for.  It is ironic though that one transit centre has closed and new transit centres have opened on the same Island and it remains to be seen whether the new facilities do in fact offer the services and the free environment that the second respondent say they do. However the impression I have formed from seeing pictures of the new facilities is that they appear to be of good quality.

10.	With regard to the application for interim relief, I am satisfied that the government of PNG with the assistance of the Australian government have provided alternative accommodation at three Centres situated outside the MRPC compound, that allows for free movement and access by the asylum seekers, that the services provided are of good standard and that the allowances paid to the asylum seekers are sufficient for their daily sustenance. There is no real good reason why they should not voluntarily move to those new facilities. The security and safety concerns, the intimidation and harassment complained of, cuts to services in water and food and the like to the closed MRPC occurred in the process of closing the MRPC. These are the sorts of things that are normally expected in situations like the current one where the MRPC has been closed under compulsion of a Supreme Court order and asylum seekers are required to vacate the MRPC and move into new facilities that are built purposely to afford a free exercise of their Constitutional rights. If the asylum seekers suffered any injury from those actions taken by the officers employed by the governments of PNG or even Australia, the asylum seekers’ remedy lies in damages. 

11.	I am persuaded that some of the Constitutional rights under the provisions of the Constitution may have been breached in terms of withdrawal of basic services including food and drinking water and medical services, threat and intimidation to their person and that those are likely to continue as long as the asylum seekers remain in the closed MRPC. On the one hand, it is fair to say that the asylum seekers have brought those upon themselves in refusing to vacate the premises and move into the new transit centers. It is in the applicant’s own interest that he leaves the closed MRPC facility and move into ELTC or HHTC because he has been granted “refugee status”.  On the other hand, those breaches or imminent breaches have occurred out of the government's heavy handed tactics to pressure and force the asylum seekers out of the closed MRPC. I am satisfied that the applicant's remedy for the breach of his Constitutional rights lies in damages. In all the circumstances, the balance of convenience favours the respondents more so than the applicant. 

12.	For the foregoing reasons, the application for interim relief is refused.
 
Lomai & Lomai Lawyers:  Lawyers for the Applicant                               
Bradshaw Lawyers:           Lawyers for the Second Respondent