N2814
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 23 OF 2023

JAMES LOKALYO KEPSON
Appellant

V

STANIS HULAHAU IN HIS CAPACITY AS CHIEF MIGRATION OFFICER – PAPUA NEW GUINEA IMMIGRATION AND CITIZENSHIP AUTHORITY
First Respondent

PAPUA NEW GUINEA IMMIGRATION AND CITIZENSHIP AUTHORITY
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WAIGANI: HARTSHORN J, KANGWIA J, COATES J
1 MAY, 30 OCTOBER, 27 NOVEMBER 2025

JUDICIAL REVIEW – Contracted officer with Immigration and Citizenship Authority – officer stood down on pay – officer charged with offences – charges did not proceed – immigration and Citizenship Authority refused renewal of contract – whether Public Services Commission may intervene.

FACTS
The Appellant was employed under a contract with the Immigration and Citizenship Authority but was suspended after being accused of committing crimes. Even though charges did not proceed, his position was terminated; however, such occurred after the date his contract was to end. The Public Service Commission directed that the Authority re-appoint him. On the facts presented, the Public Service Commission did not have the power to direct his re-appointment, as found by the National Court. 

HELD

On the facts presented, the Public Service Commission did not have the power to direct the Appellant's re-appointment, as found by the National Court, a decision we uphold.

Cases cited
Hulahau v Kennedy [2020] N8465
Kekedo v Burns Philip (PNG) Ltd & Others [1988-89] PNGLR 122
Re jurisdiction of the Public Services Commission [2019] SC1871
Reference by Public Solicitor Pursuant to Constitution s.19 (1) [2019] PGSC 93; SC1871
Special Reference Pursuant to s.19 Jurisdiction of the Public Service Commission and the Powers and Functions of the Auditor General [2022] SC2299

Counsel
J Napu for the appellant
No appearance by the respondents

DECISION

1.	HARTSHORN J & COATES J: This is an appeal against a decision by the National Court refusing leave for judicial review in an employment dispute.

2.	Although the Appellant had worked for the Immigration and Citizenship Authority (the Authority) since 2016 in various positions, he was appointed by contract as Manager of Contracts and Property on 17 January 2020, for a three-year term.

3.	The material indicates that the contract was to end on or about 17 January 2023.

4.	The Appellant came to the notice of the police due to complaints of fraud and corruption, the particulars of which are not before the court. The Authority suspended him from pay as of 17 May 2021. The Appellant states that he was paid his base rate, without any other entitlements, although he did not specify the specific entitlements. 

5.	He took the matter to the Public Service Commission.

6.	He was subsequently charged and an indictment presented, but a nolle prosequi was entered on 10 October 2022, about three months before his contract was due to expire. The alleged offences were not put to us. 

7.	On 30 November 2022, the Public Service Commission purported to annul the decision suspending his appointment and ordered that he be reinstated to his former position.

8.	He remained on suspension.

9.	On 16 January 2023, the day before the contract was due to end, the first and second defendants notified the Public Service Commission that the Appellant would not be reinstated, due to serious allegations. Those allegations were not put before us.

10.	Correspondence of the same date to the Appellant stated that he would be terminated but would be paid through to 23 April 2023.

11.	As can be seen, his contract was supposed to end on or about 17 January 2023. For reasons not apparent to the court, the Authority continued his employment (suspended) on what must be considered an implied extension of the contract. 

12.	The Appellant sought judicial review in the National Court and orders that he be reinstated. Before us, he also sought orders to be reinstated and back pay. His unpaid entitlements were not put to us.

THE DECISION BELOW

13.	The Appellant sought leave for judicial review by the National Court, indicating that he would also seek a prerogative writ to compel compliance with the Public Services Commission direction to reinstate him.

14.	After setting out the competing cases, his Honour considered whether the second defendant, the Immigration and Citizenship Authority, was part or deemed to be part of the National Public Service by definition. He referred to two cases – the first being Reference by the Public Solicitor pursuant to the Constitution section 19 (1) Re jurisdiction of the Public Services Commission [2019] SC1871 at paragraph 13 to 18, and the second case being Special Reference Pursuant to s.19 Jurisdiction of the Public Service Commission and the Powers and Functions of the Auditor General [2022] SC2299 (11 October 2022). 

15.	His Honour stated that "both decisions said that the National Public Service consists of the Department of the Prime Minister and the National Executive Council, and the Department of Personnel Management, and such other departments and officers deemed as departments as are established under section 20(2) of the Public Service (Management) Act 1995. In the case of the second defendant, it is neither a department nor is it deemed a department and is therefore not part of the National Public Service. Therefore, the decision of the Public Services Commission is not binding on it in favour of the plaintiff here."

16.	His Honour also determined that merely because the Public Service Commission had given a direction, such was not binding as the Authority was not part of the public service, as also stated in Hulahau v Kennedy [2020] N8465 (25 August 2020), where the court said: "11. I reject that argument. These are not judicial review proceedings, so the plaintiff was not obliged to exhaust administrative remedies before commencing the proceedings. The suggestion that he should have sought review by the Public Services Commission is not a good one. The Commission would have no jurisdiction to review personal decisions regarding the Immigration and Citizenship Service Authority, as it is not part of the National Public Service (SC Ref No 3 of 2018: Reference by the Public Solicitor re: Jurisdiction of the Public Services Commission (2019) SC1871).

17.	The conclusion was that the Appellant had no standing on any ground, and consequently, the direction for the Appellant's reinstatement then was not binding.

18.	We point out that the Appellant had submitted that the Authority had ignored the direction and not complied with s.18(3)(d)(ii) of the Public Services (Management) (Amendment) Act 2021, which provided 30 days in which to seek review; otherwise, the direction of the Commission became binding.

19.	Given His Honour's decision, the Public Services (Management) (Amendment) Act had no bearing on the matter.

APPEAL - JUDICIAL REVIEW ACTION
20.	The Appellant now seeks review of that decision (made 22 August 2023).

PURPOSE OF JUDICIAL REVIEW
21.	The purpose of judicial review proceedings was stated by the Supreme Court in Kekedo v Burns Philip (PNG) Ltd & Others [1988-89] PNGLR 122:

"...the circumstances under which judicial review may be available are where the decision-making authority exceeds its power, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.
The purpose of judicial review is not to examine the reasoning of the subordinate Authority with a view to substituting its own opinion. Judicial review is concerned not with the decision, but with the decision-making process."
22.	Among other grounds, the law has classified judicial review as available for jurisdictional errors, excess jurisdiction, improper exercise of power, errors of law on the face of the record or under an Act, breach of natural justice, bad faith, unreasonableness and uncertainty.

23.	We interpret the Appellant's grounds of review to be based on errors of law, and that the court below erred:
(a)	By finding that the Immigration and Citizenship Authority (second respondent) was not part of the public service under the Public Service (Management) Act 2021 and is not bound by Public Service Commission rulings.
(b)	By finding that the Chief Migration Officer (first respondent) was not part of the public service under s.22 of the Public Service (Management) Act, and 
(c)	By relying on cases irrelevant to his case.

24.	The Appellant seeks that the decision below be quashed and his case be referred back to the National Court.

THIS PROCEEDING

25.	The key question here is whether the Appellant has an arguable case and standing or sufficient interest.

26.	Furthermore, this appeal has now had two appearances before us, with time being wasted as the respondent's lawyer opposed the Appellant's submission that the Appellant should be treated as a public servant, despite being on a contract.

27.	Neither party had examined the Immigration and Citizenship Services Act 2010, its establishment of the Authority and its references to the public service. 

28.	Under that Act, the Authority is granted a common seal, may hold and dispose of property, and, importantly, may sue or be sued in its corporate name. 

29.	That is the indicia of a legal corporate person with rights and responsibilities, and the Objectives under Section 4 refer, among other things, to the provision of a more flexible operational working environment and to management efficiency in relation to finances, accountability, performance, and best practices.

30.	Section 6 grants the Authority the power to do all that is convenient and necessary in connection with its functions and objectives.

31.	These sections enable the employment of all personnel necessary to ensure the Authority functions effectively.

32.	Section 9 creates a Board, which includes the Chief Migration Officer.

33.	The provisions establishing the Authority indicate that the Authority is separate from the public service and has been created by Parliament to discharge its functions independently of the public service.

34.	Furthermore, board members are appointed pursuant to the Regulatory Statutory Authorities (Appointment of Certain Officers) Act 2004, which is another confirmatory Act that confirms the Authority members are not part of the Public Service and are not amenable to the directions of the Public Services Commission.

35.	Section 2, definitions, refers to an officer of the Authority, being an employee of the Authority, who could also be an officer appointed under the Public Services (Management) Act 1995, or a temporary officer appointed under that Act, with no statement that officers automatically become public servants.

36.	Section 25 states officers appointed have their terms and conditions governed by the Salaries and Conditions Monitoring Committee Act 1988 (the Salaries Act).

37.	That Act applies to contracts of appointment under the Authority's Act, and Section 3, titled Application of Other Laws, states:
(1)	The provisions of this Act apply notwithstanding anything in any other law relating to the determination of salaries and conditions or employment of employees of a public authority.
(2)	Whereby or under any law, power is given to a public authority, to determine or vary the salaries and conditions of employment of employees of the public Authority, that power shall be exercised subject to this Act.

38.	Section 9 of the Salaries Act is titled 'Public Authority to Appoint Person to be Responsible for Ensuring Compliance with this Act,' and the body of the section states that there is to be a person employed for this purpose. We will revisit this provision.

39.	Returning to the Immigration and Citizenship Authority's Act, s.28 and s.29 state that all employees will be employed under a written contract of employment and public servants appointed to the Authority will have their service with the Authority counted in respect of rights in relation to leave of absence on grounds of illness and furlough. There are no other references to public service conditions. We observe that if officers were to be considered to be employed within the public service, these provisions would be superfluous.

40.	This court was never informed whether the Appellant had been a public servant with the Authority before being appointed under the contract, which he states is breached. The Appellant did not assist us by exhibiting the contract, the terms of which may have been helpful.

41.	In the circumstances of this case, that limits further consideration of reliance on the Public Service (Management) Act 2021 as claimed.

42.	Examination of the Immigration and Citizenship Authority Act reinforces the court's findings below that the Authority is not part of the public service as defined in the Public Service (Management) Act 2021. However, His Honour considered only the cases referred to above to reach his conclusion.

43.	Examining Section 3 of the Immigration and Citizenship Service Act, which establishes the Authority as a Corporation, would have alerted the parties to its’ status as possibly not being part of the public service.

44.	The failure to identify this under the Immigration and Citizenship Service Act is just poor performance on the part of the lawyers here. They came to court without fully addressing the law they were dealing with.

45.	So, where does that leave the Appellant in this case?

46.	The Public Service Commission's recommendation of re-employment is non-binding, as the court below found. We do not comment whether it had the power even to make the recommendation, as any advisory capacity it may have had was not before us.

47.	Therefore, based on the submissions made to us, we do not see a legislative power to require that its recommendation be followed.

48.	Any damage suffered by the Appellant should be pursued under contract law for any alleged breach by the Authority, as the court below recognised and as we recognise.

49.	However, as noted above, his contract was extended from January to April 2023, and he was paid up to that date. No figures regarding what he allegedly missed out on were presented to us, so he should seek advice on the strength of his case in contract.

50.	Returning now to s.9 of the Salaries Act, there may well have been, or may be, a further administrative action for the Appellant under this provision to ensure the Authority complies with the terms of the contract of employment, by contacting the officer appointed under the provision to ensure compliance by the Authority.

51.	For completeness, the Appellant, while not addressing these provisions, relied on s.188 and s.190 of the Constitution, provisions establishing State Services and the Public Service Commission.

52.	There was no useful submission on how these provisions were to be applied to the Authority.

53.	It is not simply a case that it is a government authority, so it must be part of the public service.

54.	Section 191 actually starts with the words that the 'Public Service Commission shall be responsible, in accordance with an Act of Parliament' ... for review of personnel matters, so that strongly suggests that if an Act does not include the Public Service Commission, the Commission's jurisdiction has to be found elsewhere. We do not accept that the Appellant successfully took us to a power to be found elsewhere.
55.	Finally, time has passed, and the employment situation has changed – the Appellant's contract was supposed to end on 17 January 2023, just under three years ago. It was extended to the following April by the Authority's action, after which he was paid up to that point.

56.	The National Court proceeding is a review proceeding, and therefore, this appeal pertains to that review proceeding. As such, the court is examining the decision-making process, not necessarily the legal outcome. In doing so, it does not appear to us that the decision by the court below was so tainted with error, jurisdictional or otherwise, that it should be overturned. His Honour followed a line of cases, and to the extent that there may be conflicting cases, they do not invalidate the decision made. Furthermore, even if the decision was incorrect, this court does not have the Authority to order the Appellant to be reinstated to a position that he held only by contract, the term of which has now expired.

57.	As stated, his remedy lay in an action for breach of that contract or an administrative review under Section 9 of the Salaries Act, as he lacks standing and does not have a compelling case.

58.	On that basis, we dismiss the appeal.

59.	Because the respondents did not properly present the legislation concerning the Authority at the first hearing and failed to appear at the second hearing, which treats the Appellant with disdain and the court with contempt, the respondents will be required to pay their own costs, and the Appellant will be required to pay his own costs.
 
60.	KANGWIA J (DISSENTING): I accept the Appellants’ line of arguments as the correct position on personnel matters of officers in the Immigration and Citizenship Authority (ICA). My observation, as will appear later, is that personnel matters of ICA are by operation of law and practice adequately connected with the National Public Service and are subject to the review powers of the Public Services Commission (PSC) prescribed under s.18 of the Public Service (Management) Act 2021.  

61.	The review powers of the PSC are derived from the responsibilities reposited in s.191 (2) of The Constitution. This provision states:

191. FUNCTIONS OF THE COMMISSION. 
(1)	The Public Services Commission shall be responsible, in accordance with an Act of the Parliament, for – 
(a)	the review of personnel matters connected with the National Public Service; and 
(b)	…

62.	The Act of Parliament that gives effect to this Constitutional imperative is the Public Service (Management) Act.  

63.	Further on, the Constitution under s.194 prescribes “Personnel matters” in this way:

194. “PERSONNEL MATTERS”. 
In this Division “personnel matters” means decisions and other service matters concerning an individual whether in relation to his appointment, promotion, demotion, transfer, suspension, disciplining or cessation or termination of employment (except cessation or termination at the end of his normal period of employment as determined in accordance with law), or otherwise.

64.	This provision creates a broad range of personnel matters over which the PSC can exercise its review powers. Second, the exercise of review powers is restricted to only while a person is in employment. The review power ceases to have effect at the end of the period of employment.  

65.	The combined effect of the cited provisions of The Constitution is unequivocal, that PSC was created to provide an avenue for review of personnel matters connected with the National Public Service which is a state service established by s.188 of The Constitution. 

66.	Review of personnel matters affecting officers in the National Public Service is carried out as prescribed by s.18 of Public Service (Management) Act. 

18. REVIEW OF PERSONNEL MATTERS IN RELATION TO APPOINTMENT, SELECTION OR DISCIPLINE. 
The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review any decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision. 
67.	The provision appears to exclude termination of officers; however, the review powers derived from s.194 of the Constitution, which prescribes termination as a personnel matter that is subject to the review powers of the PSC, prevail, hence the omission is inconsequential. 

68.	This provision can only be given proper effect following a complaint made by an officer to the Commission, and in no other way. When an officer is given prominence, it puts to rest all other arguments on the review powers of the PSC. (Bolding mine).

69.	Under s.2 of the Act “officer” means an officer in the public service, but does not include:
(a)	An employee
(b)	A person employed in an honorary capacity; or
(c)	A person remunerated by fees and allowances or commissions only.

70.	An “officer” is further described under s.12 (6) of the Act this way:

12. POWERS OF THE COMMISSION
(6) In this section, “officer” means – 
(a)	an officer of the National Public Service; and 
(b)	a contract officer employed under the Public Employment (Non- citizens) Act (Chapter 342); and 
(c)	an officer of the Police Force; and 
(d)	an officer or employee of a Provincial Government; and 
(e)	an officer of any government service; and 
(f)	an employee of a service or force referred to in Paragraph (a), (c), (d) or (e) and 
(g)	an employee, 
but does not include a member of the Defence Force.

71.	The cited provision (except for the Defence Force) covers a wide range of government departments and agencies whose officers and employees are covered under the Review powers of the PSC. Subsection (e) of the provision prescribes that an “officer” of any government service and ICA being a government service falls under the category of government services, hence its “officers” are subject to the review powers of PSC.  The status of ICA as a government service is affirmed by s.45 of the ICA Act in these terms:

45. PUBLIC PURPOSE.
The purposes of the Authority are public purposes.

72.	The reason why ICA exists is clear from this provision. It is stated as public purpose however it can be read and applied interchangeably with public service or government because all instances relate to service to or for the public for or on behalf of the government.

73.	Employment under contract is also not exempted from the review powers Pursuant to s.42 of the same Act. This provision states:

42. EMPLOYMENT UNDER CONTRACT TO CONSTITUTE SERVICE. 
Employment under contract under this Part shall constitute service in the Public Service for all purposes.

74.	All purposes under this provision are broad enough to cover review powers of the PSC, hence Employment under Contract is not exempt. 

75.	In the present case, the centre of controversy appears to be the question of whether personnel matters of ICA are connected with the National Public Service. If the answer is yes, then they are subject to the review powers of the PSC. If the answer is no, then they are free from the bondage of the PSC review powers. 

76.	The respondents have without providing any evidence in the Court below or in this Court of any provision under the ICA Act or the contract of employment with the appellant which directly or by implication ousts the review powers of PSC nonetheless argue that the Review powers of the PSC is confined to those bodies within the National Public Service established under s.188 (1) (a) of the Constitution.  They refer to the Supreme Court decision in Reference by Public Solicitor Pursuant to Constitution s.19 (1) [2019] PGSC 93; SC1871 as supporting this argument. 

77.	They also argue that the Second Respondent is neither a department nor a deemed Department pursuant to Part V s.20 of the Public Service (Management) Act and therefore is not part of the National Public Service to be subject to the Review powers of the PSC. They refer to the case of Hulahau v Kennedy [2020] N8465 as affirming their argument in this respect.  

78.	This line of argument invites consideration of the cited provisions which are now reproduced for better appreciation. 
188. ESTABLISHMENT OF THE STATE SERVICES. 
(1)	The following State Services are hereby established:- 
(a)	the National Public Service; and 
(b)	the Police Force; and 
(c)	the Papua New Guinea Defence Force; and 
(d)	the Parliamentary Service. 
(2)	Acts of the Parliament may make provision for or in respect of other State Services.

79.	This provision is unequivocal. It establishes the National Public Service as one out of four named state services that are established to carry out various functions of the State. National Public Service is broad and covers all departments and institutions that provide a public service in whatever shape or form. The other state services are more specific and confined to their respective functions.

80.	Under subsection (2) it further provides that Acts of Parliament may make provision for or in respect of other state services to carry out functions.  

81.	My observation from the setup is that where a state service does not or cannot fall into the basket of the National Public Service or the other three named state services then it without doubt falls into the category of other state services hence Immigration and Citizenship Authority being the provider of immigration and citizenship services falls into the category of other state services and can be given the recognition as a state service. 

82.	On whether ICA is a department or deemed a department, s.20 provides:

20. DEPARTMENTS OF THE PUBLIC SERVICE AND OFFICES DEEMED AS DEPARTMENTS.
(1)	There shall be –
(a)	a Department of the Prime Minister and National Executive Council; and
(b)	a Department of Personnel Management; and
(c)	such other Departments and Offices deemed as Departments as are established under Subsection (2). 
(2)	The Head of State acting on advice, may by notice in the National Gazzette –
(a)	establish a Department; or
(b)abolish a Department; or
(c) alter the name of a Department, including the Department of Personnel Management.

83.	This provision is also unequivocal. It establishes two notable departments and allows for the establishment of other departments and offices deemed as Departments through the National Gazette. ICA specifically is not named as a department under this provision however this omission is in my view inconsequential when s.188 (2) of the Constitution is read in its proper context, ICA being a creature of the ICA Act that makes provision for immigration and citizenship services falls under the category of other state services created pursuant to s.188 (2) of The Constitution. 

84.	Having considered the two provisions, relied on by the respondents, I cannot be satisfied that their arguments have any merit. They have failed to demonstrate how personnel matters of ICA are not subject to the review powers of PSC by virtue of the considered provisions. 

85.	The Hulahau case does not come to the aid of the Respondents’ argument that ICA is not subject to PSC Review powers. 

86.	In that case, the statement made by the trial judge was obiter dictum while referring to the Reference by the Public Solicitor and not binding on this Court. 

87.	The decision in the Reference by the Public Solicitor is also misconstrued and is of no assistance to the respondents’ arguments. Unlike the Public Solicitor, ICA has no Constitutional status to render it incapable of being subject to the review powers of PSC. 

88.	The cited provisions nonetheless adequately connect ICA to the National Public Service, hence personnel matters of ICA naturally are connected to the National Public Service, subject to the review powers of the Public Service Commission, despite its corporate personality.
  
89.	The corporate personality of the authority, unlike a company, does not completely sever ICA from being a provider of public service when it appears that ICA is not a registered company under the Companies Act to enjoy the corporate veil protection.  The effect of the cited provisions, in my view, is that the corporate veil is, by operation of law, lifted as far as it relates to personnel matters of ICA.  

90.	Also by implication ICA is connected with the National Public Service when the terms and conditions of employment of officers in ICA are subject to the Salaries and Conditions Monitoring Committee Act pursuant to s.25 (2) of the ICA Act, through the application of the Public Finance Management Act pursuant to s.30 of the ICA Act, through being subject to the Audit Act pursuant to s.31, through grants from the National Government pursuant to s.33  to name a few which apply to all state services and bodies in the National Public Service. Under the circumstances, ICA cannot, for all intents and purposes, enjoy an exemption on personnel matters only.  

91.	Based on the foregoing observations, disciplinary matters of ICA officers, whether under contract or not, are subject to the review powers of the PSC. 

92.	I would uphold the appeal and quash the decision of the Court below as null and void, with costs, and decline to remit the matter to the National Court for judicial review, as the contract of employment had expired. 

ORDERS BY MAJORITY

1.	The Judicial Review application filed on 1 September 2023 is dismissed.
2.	Each party pay their own costs.

Lawyers for the appellant:  Napu & Company Lawyers
Lawyer for the respondents:  Solicitor General