State v Sur [2005] PGDC 91; DC445 (5 July 2005)

DC445

PAPUA NEW GUINEA
[IN THE DISTRICT COURT JUSTICE]

CASE NO 125, 128 OF 2005

State
Complainant

V

Lee Kuang Sur
First Defendant

Lee Yoke Kuan
Second Defendant

Goroka: F. Manue
2005: 25th June; 05th July

Counsel
Sgt. Warkia for the State
Mr. N. Tenige for defendants.

REASONS FOR DECISION

Magistrate F.MANUE: The defendants each and severally Stand Charged that each and severally on the 26th of January 2005, at Kainantu, remained in Papua New Guinea without being the holder of a valid Visa respectively. This is an offence under section 16 (1) (a) of the Migration Act 1978.

Both defendant are foreigners.

This Case went on trial by consent of both parties, on a Saturday, which is a sitting day under the District Court Act.

The issue is whether the delay by the MIGRATION DIVISION of the Department of Foreign Affairs, in processing the defendants "VISA" is a valid defence?

I will deliberate on both Cases together. Evidence from both the Prosecution and the defence was heard and the matter was adjourned to 1st July, 2005 for both parties to make submissions. I have received submissions and have considered them.

Section 16 of Migration Act creates various offences, and that each of the defendants were charged for being in the country without a valid VISA.

It is in these terms:-

16 Offences

(1) A person who enters or remains in the Country in contravention of this Act; or

is guilty of an offence.

For the purpose of someone breaching this provision, one must be either entering the country or remaining in the Country without complying with any provisions of the Act. One would ask, what the defendants did, which was in contravention of the Act.

To start of they were Charged for "being without holder of a valid "VISA"".

There is no dispute that the defendants did remain in the country without being a holder of a valid "VISA". I have search the Migration Act, but it does not inscribe the word, or does it define it.

The Oxford Dictionary defines "VISA" as an endorsement on a passport allowing entrance to or exist from a Country. (Pocket Oxford Dictionary, Oxford University Press, 8th Ed 1992.)

On that basis the phrase VISA equates to an "Entry Permit" under the Migration Act, as stated in Section 4.

It is in these terms:-

4. Issue of entry permit.

(1) A person seeking an entry permit shall apply for it in the prescribed manner.

(2) An officer or authorized person, or receipt of an application made under Subsection (1), may issue an entry permit.

(3) An entry permit may be issued to a person before he has entered the country.

I take that the charges are meant to mean the defendants remained in Papua New Guinea while their entry permits were no longer valid, or had expired. The defendants deny that they remained in the country after expiry of their visas, with an excuse, that the fault was not theirs. This does not mean that they did not act accordingly to comply with the requirements of the Migration Act in order to remain in the Country lawfully. They refuted that the migration authorities did not act quickly to process their applications, so the fault does not lie with them.

There is undisputed evidence that they did apply for an extension of their respective entry permits. I assume "extension" as both have entered the Country lawfully and were in the Country for some years before their arrest.

In order for the defendants to sustain a defence, such must be so provided in law.

I have searched the entire legislation but I failed to locate any defences except for the "Exemption" of certain class of foreigners, under Section 20 of the Act, where the minister responsible exercises jurisdiction. This exemption criteria is not raised by the defendants as defence.

In Abel Pagawa V Fredrick Mathew [1986] PNGLR 154, a person from Irian Jay had entered Papua New Guinea without an entry permit in contravention of Section 16 (1) (a) of the Migration Act. The Court held the defence of "Extract ordinary emergencies" under the Criminal Code was available to the accused. In the Supreme Court Reference No. 6 of 1984; Re Provocation [1985] PNGLR 31, it was held that "Provocation", a defence under the Criminal Code Act, is available to a charge of unlawful assault under the Summary Offences Act, which does not provide any defences.

It is my view, that, where no defences are available in particular legislations, then any appropriate defences under the Criminal Code Act may be available as seen in the cited Cases.

Is then, Justification and excuse defence, a defence under the Criminal Code of Papua New Guinea available to the defendants. Section 4 (1) of the Migration Act requires a person to apply for a permit in the prescribed manner. Subsection (2) requires an authorized person to process the application. Subsection (3) allows a person to apply for an entry permit before entering the Country or after entering the Country.

The phrase "after he has entered the Country" in my view would apply to those who have entered and intend to stay on after the expiry date but apply for an extension to do so. This type of application is provided for under Section 3 of the Migration Regulation.

It is in these terms;

3. Extension of period of validity-

(1) A person seeking an extension of an entry permit shall –

(a) complete an application form in Form 3; and

(b) send the application to an authorized officer together with- -

(i) his passport; and

(ii) in the case of an extension of a business visa, supporting documents; and

(iii) where the application is made on or before the expiry of the entry permit extension of which is sought - the prescribed extension application fee; and

(iv) where the application is made after the expiry of the entry permit extension of which is sought - the prescribed late extension application fee.

(2) A permit extending the period of validity of an entry shall be in Form 5 and Shall be stamped in the holder's passport.

Whether a person is applying for an entry permit or extension of entry permit, the person is required to fill in a prescribed Form 1 or 3 respectively and have it send together with his passport and a prescribed fee of K1,000.00 to be processed, pursuant to Section 1 of the Migration Regulation. Section 3 of the Regulation provides for that and even goes to the extent of allowing persons to apply for an entry permit even after the expiry date of the permit conditional to the applicant paying a "late extension application fee". In my view, this particular section particularly when applying for extension on after expiry date, invites corrupt, abuse and delay tactics being applied by the administrators of Migration Act.

As I said, the defendants had complied with the requirements of the Migration Act. They had applied for extensions (assumingly) of their entry permit with the required fees.

In the Case of the first defendant he had lodged his application through an agent of Port Moresby on the 17th November 2004, some two (2) months before he was arrested.

And in the case of the second defendant, he had lodged his application through an agent in Port Moresby on the 30th July, 2004, some five (5) months before he was arrested.

And in the case of the second defendant, he had lodged his application through an agent in Port Moresby on the 30th July, 2004, some five (5) months before he was arrested.

In this time and age, the periods of two (2) to five (5) months is a reasonable time within which the applications can be processed, and for some reason if it is not, then there is ample time to inform the applicants the reason for being unsuccessful. In fact, the legislation, envisages the processes to be done within 60 days (See Section 2 of the Migration Regulation). To date the first defendant has not been informed of the reasons for the delay. There has been no excuses offered in Court by the Administering authority of the delay nor has it been conveyed to the defendants.

I say that the defence of Justification and Excuse under the Criminal Code is available to the defendants each and severally. In my view, the defendants cannot be held criminally responsible for an act of remaining in the Country, after their entry permits expired, in the given circumstances, when they were awaiting the process of their applications and an outcome under the Migration Act.

They are (particularly defendant 1) awaiting the execution by an authorized officer, to process their extension of entry permit applications, which is an execution of the Migration Act. That is duly the duty of an authorized officer, without any input by the defendants or any other persons for that matter. Until such time they are given an outcome of the extension entry permit application, they have a justifiable excuses to remain in the country.

I find without doubt, that although defendants each and severally remained in Papua New Guinea without a valid VISA respectively, they are excused by reason of their awaiting the process of their extension applications being processed and granted, or at least an outcome.

For the record, the second defendant has been granted extension of his "Visa". Accordingly, I find the defendants each and severally, Not Guilty as Charged.

Orders accordingly.