Guggemos v Acting Minister of Foreign Affairs [1987] PGNC 33; [1987] PNGLR 352; N637 (28 October 1987)

N637

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

ERWIN GUGGEMOS

V

THE ACTING MINISTER OF FOREIGN AFFAIRS AND THE STATE

Waigani
Amet J

22 October 1987
28 October 1987

ADMINISTRATIVE LAW - Application for judicial review of administrative acts - Application under s 155(4) of Constitution - Standing of applicant - Division to cancel entry permit and order removal from country - Prohibited immigrant has no legal or constitutional standing - Constitution, s 155(4) - Migration Act (Ch No 16), ss 6, 12.

IMMIGRATION AND ALIENS - Prohibited immigrants - No valid entry permit - No valid work permit - Order for cancellation of entry permit - No order can be made where no valid permit - Order for removal from country - No standing to seek review of decisions - Constitution, s 155(4) - Migration Act (Ch No 16), ss 6, 12.

Held

A person who is a prohibited immigrant by virtue of having no valid or current entry permit and no valid work permit (and notwithstanding an incompleted application for citizenship) has no right to apply to the courts for relief under s 155(4) of the Constitution either:

(a) in respect of a decision of the relevant Minister to cancel an entry permit under s 6(1) of the Migration Act (Ch No 16): (Where no valid current entry permit exists there is nothing the Minister can cancel under s 6 of the Migration Act and accordingly no decision which the court might review), or

(b) in respect of a removal order made pursuant to s 12 of the Migration Act (Ch No 16).

Application for Judicial Review

This was an application by a person holding no valid entry permit and no valid work permit for judicial review of a decision of the Minister of Foreign Affairs to cancel his entry permit and to order his removal from the country under s 6 and s 12 of the Migration Act (Ch No 16).

Counsel

M Enda, for the applicant.
C Warokra, for the respondents.
Cur adv vult

28 October 1987

AMET J: This is an application made pursuant to s 155(4) of the Constitution seeking the following orders:

1. That the respondents and all their agents and servants be further restrained from the removal of the applicant from Papua New Guinea pursuant to removal order dated 18 September 1987.

2. That the respondents be ordered to disclose and furnish to the applicant through it’s legal representative the grounds and or reasons of his (applicant’s) removal from the country.

3. That after the disclosure and furnishing of the grounds and or reasons of the removal of the applicant by the respondents to the legal representative of the applicant, the applicant be allowed to answer and make full representation to the respondents.

4. And/or in the alternative:

(a) That the Honourable Court review the decision of the first respondent and declare that the removal order dated 18 September 1987 is unjust, harsh and oppressive;

(b) That the removal order against the applicant be declared null and void on the grounds of 4(a) above.

The formal facts leading to this application are as follows: the Acting Minister for Foreign Affairs the Honourable Aruru Matiabe on 18 September purported to cancel the entry permit of the applicant pursuant to s 6 of the Migration Act (Ch No 16) and issued a cancellation notice to that effect. The Minister further made a removal order under s 12 of the same Act, also on 18 September 1987, ordering that the applicant be removed out of the country within 14 days of the date of the service of the order. This removal order was also issued on 18 September 1987.

The two notices were served on the applicant on 29 September 1987 and the applicant went to the office of the Public Solicitor some two days after being served with the documents seeking legal assistance. At the same time he made efforts to make representation to the Minister through a friend the late Waka Busa and other friends and church officials. The applicant was picked up and detained for removal on 14 October 1987. It was from custody that the applicant gave instructions to the firm of Narokobi Kirriwom Mosoro & Enda Lawyers, on 16 October 1987 at midday. The applicant was to be put on the plane at about 3.30 pm for removal on 16 October 1987 and so an urgent application was made before me that afternoon at 2.30 pm.

There was no documentation whatsoever and there was no representation on behalf of the State and the Minister and I made temporary restraining orders against the State to enable the applicant to file documents and an application, if he had any legal or constitutional rights that were sought to be enforced. I ordered that those restraining orders extend to 21 October 1987 for the applicant to file all necessary documents in whatever the appropriate application might be. The necessary documents and affidavits have since been filed by both the applicant and officials of the Immigration Division of the Department of Foreign Affairs and I further extended the restraining orders until the ruling in this matter.

Further facts have come to light from the affidavits of both the applicant and in particular that of Thomas Ritako, the First Assistant Secretary of the Immigration and Citizenship Branch of the Department of Foreign Affairs as to the status of the applicant. The applicant Erwin Guggemos is a national of the Federal Republic of Germany holder of an expired passport No F 5628913. The passport expired in 1986. This passport was annexed to the affidavit of Thomas Ritako. Mr Ritako further deposed that the applicant’s current status in Papua New Guinea is as a "prohibited immigrant" as he does not have a valid visa. The last Entry Permit No C/005533 issued to him on 20 March 1984 expired on 20 September 1984 without any further renewals. That entry permit is stamped on p 10 of the passport. There is no further extension granted to the applicant. Mr Ritako also deposed that the applicant does not have a valid work permit and that the last work permit (No 082682) issued to him on 10 October 1983 expired on 20 September 1984. A copy of that work permit was annexed to Mr Ritako’s affidavit. To the best of Mr Ritako’s knowledge no new work permit was subsequently granted to the applicant. Mr Ritako further deposed confirming that the applicant had applied for Papua New Guinea citizenship in 1984 initially on 13 July 1984 and subsequently on a more detailed application form on 13 September 1984. It is deposed that in response to those applications a Mr Alfred Alesana the Executive Officer of the Citizenship Committee twice wrote to the applicant, in July 1984 requesting certain personal information including a statement of assets and liabilities, investments and business interests. True copies of those letters were annexed to Mr Ritako’s affidavit. These letters were addressed to PO Box 6337, Boroko, the contact address indicated in the application by the applicant. The letters were not claimed by the applicant and were returned to the sender. Mr Ritako deposed that the applicant’s application for citizenship was therefore not submitted to the Citizenship Advisory Committee owing to incompleteness of the necessary information. To the best of Mr Ritako’s knowledge the applicant had not taken any further steps in following up his application.

It was on this basis therefore that the Minister was advised to issue the notices the subject of this application. First, I am satisfied that the purported cancellation of entry permit by the Minister pursuant to s 6 of the Migration Act is not valid in that the true legal position is that the applicant did not have a valid entry permit that the Minister could have cancelled. The true legal position is that the applicant did not have a valid entry permit and so the Minister’s notice of cancellation of entry permit is not necessary. Consequently s 6(2) of the Act does not avail the applicant in that the applicant was not the holder of a valid entry permit which was cancelled and so the applicant has no legal standing to make application to the Minister requesting a review by a Committee of Review under that subsection. In relation to the removal order under s 12 it has not been challenged as being unlawful or invalid.

The basis for this application it is submitted is that the applicant ought to have been given some notice of reasons for the purported cancellation of entry permit and further sufficient time to enable the applicant to have pursued review procedures to seek a reconsideration of the Minister’s decision. The applicant has filed several affidavits supporting his own affidavit, one from a Father W J Ryan and another from one Joe Lera, each of these deposing to the character, the background and the community standing of the applicant. The applicant himself has deposed to his own actions since 1984 in relation to his application for citizenship and the follow-up actions that he had taken in relation to that application.

I make the following findings of fact. First, I am satisfied on the affidavit evidence of both the applicant and Mr Ritako and confirmed on the face of the passport of the applicant that his last valid entry permit was issued on 20 March 1984 and expired on 20 September 1984. There was no further valid entry permit granted to or endorsed on the passport of the applicant. I am also satisfied that his last valid work permit similarly expired on 20 September 1984. I am satisfied therefore that since 20 September 1984 the applicant has resided in this country unlawfully and is properly classified as a "prohibited immigrant". And so for nearly three years to the time of the issue of the removal order the applicant has been residing in this country and carrying on business activities without a proper legal entry permit and work permit. I do accept that he had applied for citizenship as confirmed by the affidavit of Mr Ritako but I accept also that that application has not proceeded beyond the Executive Officer to the Citizenship Advisory Committee because the necessary information and documentation have not been completed. I accept the deposition of Mr Ritako that correspondences were addressed to the Post Office Box number given by the applicant in the application for citizenship but were returned unclaimed because it appears that that Post Office Box was cancelled. The plain fact of the matter is that the applicant knew on 20 September 1984 that his entry permit and work permit had expired, and notwithstanding the fact that he had applied for citizenship I consider that it was his responsibility to have ensured that pending the outcome of that application for citizenship he was lawfully in the country. The assertion that he had been advised by some officials from the Foreign Affairs, Migration and Citizenship Division that his application would be "okay" or that he was led to believe that it was approved and awaiting ministerial signature is really no answer to his legal status within the country from after 20 September 1984. He has not annexed any document confirming such advice from the Department of Foreign Affairs, Migration and Citizenship Division or from the Citizenship Advisory Committee about his assertion that he was assured that his application had been approved.

The end result is that in all of the circumstances the applicant is a "prohibited immigrant", he has been resident in the country since 20 September 1984 unlawfully and furthermore conducting business activities and training programmes for young people quite unlawfully. I accept that, as is deposed to in the affidavits of Father Ryan and Joe Lera and the applicant himself and submitted by counsel the applicant is a respectable and accepted member of the Erima community and appears to be doing good community service. But all of the good that he is doing does not detract from the fact that he is and has been for nearly three years unlawfully resident in this country. Furthermore, the fact that he has applied for citizenship does not qualify his status as a prohibited immigrant. I cannot accept that for nearly three years knowing full well that he was unlawfully resident in the country he took no steps, no real initiative to ensure that his residence in the country was made valid by the necessary extensions to his entry permit pending the outcome of his application for citizenship. I do not consider that that fact now qualifies his legal status as a "prohibited immigrant". Further his removal out of the country would not necessarily hamper the processing and consideration of his application for citizenship. His application can still be processed and considered on its merits with the provision of all of the necessary information whilst the applicant remains outside of the country, wherever that might be, until he is advised of the outcome of his application. On the other hand, whilst his application is being considered, if he is able to validate his entry into the country through the lawful channels then that is a matter entirely between him and the Department of Foreign Affairs, Immigration and Citizenship Division.

The end result, therefore, of all of these considerations is that, the applicant has no legal basis nor any constitutional rights that are required to be protected under the Constitution to make this application. The application under s 155(4) of the Constitution therefore is without basis, the applicant having no lawful standing in this country. The application is therefore dismissed and the restraining orders are vacated and the removal order of the Minister for Foreign Affairs dated 18 September 1987 shall be given effect to at the discretion of the appropriate department of the Independent State of Papua New Guinea.

Orders accordingly

__________________________

Lawyers for the applicant: Narokobi Kirriwom Mosoro & Enda.
Lawyer for the respondents: Principal Legal Advisor to the National Government.