Valentine v Somare (No 2) [1989] PGNC 108; [1988-89] PNGLR 241; N731 (21 July 1989)

N731

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

VALENTINE

V

SOMARE AND DIHM AND JACK GENIA,
KALA SWOKIN AND MATHIAS IJAPE (NO 2)

Waigani
Los J
1 June 1989
21 July 1989

ADMINISTRATIVE LAW - Judicial review of administrative acts - Deportation order - Whether unlawful act under Constitution - Principles of natural justice relevant - Political reasons for order not reviewable - Constitution, s 41 - Migration Act (Ch No 16), s 6.1

IMMIGRATION AND ALIENS - Aliens - Deportation - Cancellation of entry permit- Reasons for - No statutory requirement for - Statutory context necessitating reasons be given - Order to give reasons refused - Grounds known and acted on - Migration Act (Ch No 16), s 6.2

IMMIGRATION AND ALIENS - Aliens - Deportation order - Judicial review of - Whether unlawful act under Constitution - Principles of natural justice relevant - Political reasons for order not reviewable - Constitution, s 41 - Migration Act (Ch No 16), s 6.3
Held

(1) On an application for judicial review of a decision of the Committee of Review appointed under the Migration Act (Ch No 16), to cancel an entry permit on the ground that the decision was an unlawful act (harsh and oppressive, not warranted by and disproportionate to the particular circumstances) under s 41 of the Constitution, whether or not the rules of natural justice have been observed is a relevant consideration.

Raz v Matane [1986] PNGLR 38 and SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329, considered.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329, doubted.

(2) On such an application it is not for the Court to evaluate political reasoning and decisions which may found the cancellation of an entry permit.

(3) Whilst s 64 of the Migration Act (Ch No 16) which permits the Minister to cancel an entry permit by written notice served on the holder, does not require the Minister to give the holder of the permit reasons for the cancellation, inherent in the context of s 65 is a necessity to give reasons, the form and extent of which must be left to the Minister.

(4) In the circumstances, the failure by the Minister to give the holder of a permit reasons for cancellation of his permit at the time of cancellation of the permit could not ground an order to provide reasons, when subsequent procedures and conduct showed that the holder held notice of the reasons and acted upon them in review proceedings.

Cases Cited

Iambakey Okuk v Fallscheer [1980] PNGLR 274.
Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.
Raz v Matane [1986] PNGLR 38.
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314.
SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329.
Tarere v ANZ Banking Group (PNG) Ltd [1988] PNGLR 201.

Judicial Review

This was the hearing of an application for judicial review of a decision of the Committee of Review appointed under the Migration Act (Ch No 16) to cancel an entry permit. Leave to apply was granted by Andrew AJ: see Valentine v Somare [1988-89] PNGLR 51.
Counsel

K Kara, for the plaintiff.
F Damen, for the defendants.
Cur adv vult

21 July 1989

LOS J: The plaintiff, having been given leave, seeks:

(a) An order for judicial review in the nature of certiorari to remove into this Honourable Court and quash the decision made on or about 10 February 1989 by the third defendants sitting as a Committee of Review pursuant to s 6(3) of the Migration Act (Ch No 6) which decision upheld the cancellation of entry permit and removal order in respect of the plaintiff made by the first defendant on 23 December 1988.

(b) A declaration that the said decision of the third defendants was an unlawful act within the meaning of s 41 of the Constitution upon the grounds that such decision was harsh, oppressive, not warranted by and disproportionate to the requirements of the plaintiffs case and was otherwise not in the particular circumstances of the plaintiffs case reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

(c) A declaration that the said decision of the third defendants was a denial of natural justice and that such decision is accordingly null and void.

(d) An order that the third defendants provide reasons to the plaintiff for their said decision.

(e) An order that the first defendant provide reasons to the plaintiff for the first defendant’s said decision.

I deal first with the last three orders sought. In Premdas v Independent State of Papua New Guinea [1979] PNGLR 329, the Supreme Court held that in migration cases the principles of natural justice were inapplicable. This conclusion was reached on two basic grounds. First, an entry permit granted under the Migration Act did not amount to any civil right. Therefore the applicant could not rely on the fundamental rights provisions in s 38(11), (12) and (13) of the Constitution. Secondly, no method had been developed in which rules of natural justice could be applied in administrative or executive decisions relating to deportation of aliens.

I think the recent trend is that rules of natural justice may be accorded to a person whose interest is affected by the decision of an authority, whether quasi-judicial, judicial or administrative. See, for example, Iambakey Okuk v Fallscheer [1980] PNGLR 274, although in that case the applicability of the principles of natural justice depended on the provisions of the National Airlines Commission Act 1973. The case, however, did not say that the principles of natural justice also extended to deportation cases. Each of the judges who delivered written judgments said that the power to deport aliens had always been regarded as being in a special category and that the courts were never at a loss to find a reason for denying an alien a right to a hearing.

The inoperativeness of the natural justice principles accepted in the Premdas case was queried in Raz v Matane [1986] PNGLR 38. It seems to me that any blatant disregard for the basic rules of fairness would warrant an "intervention" into an administrative decision relating to deportation. Fairness consists of giving reasons for revoking an entry permit and allowing the deportee to explain or refute the allegations against him. But I still think the rules of natural justice cannot apply directly in their own right. If an entry permit does not amount to a civil right and hence is not a right within s 37 of the Constitution, it cannot be a right enforceable under s 57 and the other enforcement provisions in the Constitution: see SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314, especially at 332-333. I think that failure to observe the rules of natural justice must be a factor to consider when reviewing a decision to cancel an entry permit under s 41 of the Constitution. The Supreme Court, in SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329, has decided that s 41 confers a right of action enforceable by the National Court under the Constitution, s 23(2) and s 155(4). So that any act done under a valid law, which includes the Migration Act (Ch No 16) if it is blatantly unfair, can be struck down as unlawful under s 41 of the Constitution.

The plaintiffs entry permit was cancelled by the Minister for Foreign Affairs on 23 December 1988 in the exercise of the powers conferred by s 6 of the Migration Act. On the same date, an order for removal of the plaintiff was made under s 12 of the Migration Act on the grounds that the plaintiffs presence in the country was unlawful. He was in the country without any entry permit.

The plaintiff says he was not given any reason at all for cancellation of his entry permit either by the first defendant or the third defendants (the Committee of Review). Nowhere in s 6 is there a strict statutory requirement that the reasons for cancellation of any entry permit must be given to the person whose entry permit is cancelled. Section 6 provides:

"6. Cancellation of entry permit and Committee of Review

(1) The Minister may cancel an entry permit by written notice under his hand served on the holder of the permit personally or by registered post.

(2) Subject to Subsection (8), where a notice served under Subsection (1) relates to an entry permit issued for a period of more than six months, the person on whom the notice was served may, within seven days of the receipt of the notice, by written application to the Minister, request that the cancellation of the entry permit be reviewed by a Committee of Review.

(3) On the receipt of an application made under Subsection (2), the Minister shall inform the Prime Minister of the application and the Prime Minister shall, as soon as practicable, appoint a Committee of Review, consisting of three Ministers, to consider the application.

(4) On the appointment of a Committee of Review under Subsection (3), the Minister shall submit to the Committee the application and all information relevant to the applicant, his entry and stay in the country, and the reasons for the cancellation of his entry permit.

(5) After considering the application and information submitted to it under Subsection (4), and after making any inquiries or investigations it considers necessary, the Committee of Review shall confirm the cancellation of the entry permit or recommend that its cancellation be revoked.

(6) A Committee of Review may recommend that the revocation of a cancellation of an entry permit be subject to conditions.

(7) A Committee of Review shall report its recommendations to the Minister who shall take all such action as may be necessary to implement those recommendations.

(8) Where the Minister in a notice served under Subsection (1) states that the cancellation of the entry permit is for a breach of a condition imposed following a recommendation made in accordance with Subsection (6), the person on whom the notice is served shall have no right to apply to have the cancellation reviewed under Subsection (2)."

Common sense dictates, however, that upon the basic sense of fairness, some reasons, either limited or generalised, be given for cancellation of an entry permit. It is necessary because the consequences of deportation are in many respects worse than punishment for a crime. Although there is no direct mandate in the Migration Act to give any reasons, I consider that inherent in s 6 is a necessity to give reasons. The very fact that s 6(2) allows a person whose entry permit has been cancelled to request a review by a Committee of Review (the Committee) requires him to know the reasons for cancellation of his entry permit. This is so because the reasons would enable him to make an appropriate representation to the Committee of Review. Section 6(4) requires the Foreign Affairs Minister to give reasons to the Committee of Review. It is apparent that, in the proper sense of review, the Committee has to look at the reasons given by the Foreign Affairs Minister against what the "aggrieved" person says regarding the reasons given by the Foreign Affairs Minister. In my view, the Minister must give some reasons. However, the form and extent of reasons given to a deportee must be left to the Minister responsible for the conduct of foreign affairs because the reasons may be of some complexity and sensitivity.

In the plaintiffs case, through the process of deductive thinking he had worked out what the reasons might be. They turned out to be correct. He had made written submissions to the Foreign Affairs Minister and the Review Committee basing his submissions on those reasons. There was no statutory requirement for him to make any submissions to the Foreign Affairs Minister and urge him to review his own decision. He was merely pleading to the good sense of the Foreign Affairs Minister. However, the Foreign Affairs Minister was required by s 6(3) to inform the Prime Minister and was required under s 6(4) to refer the matter to the Committee of Review. I consider that as the plaintiff had come to know the reasons and had made representation on that basis, the need to know reasons no longer existed. Although it was humiliating for the plaintiff in the way he was treated, I do not see any legal reason to order that the Foreign Affairs Minister give any reasons now. He had given his reasons to the Prime Minister and the Committee of Review. Further, not giving any reasons at the earliest stage of the cancellation of the plaintiffs entry permit cannot amount to harsh and oppressive conduct because the plaintiff was not really unaware of the reasons. If the Minister was wrong in any way, it was subsequently moderated by allowing the plaintiff to make representation to the Committee of Review.

The plaintiff also requests an order that the Committee of Review give reasons for its decision. There is no documentary evidence as to what the decision of the Review Committee was and its reasons for the decision. It seems to me the only basis of the plaintiff requiring this Court to issue an order commanding the Committee of Review to give reasons is that no formal advice has been given to him. Again, it is humiliating for the plaintiff, but I consider that is not a substantial ground upon which such an order can be made. First, the Committee had not breached any statutory obligation in failing to give any formal advice to the plaintiff. The Committee’s obligation under s 6(7) was to report the result of its deliberation to the Foreign Affairs Minister. The Foreign Affairs Minister was required to implement the Committee’s decision. Secondly, the plaintiff had known the Minister’s reasons in the first place. So that when the plaintiff learned that the decision by the Foreign Affairs Minister was confirmed by the Review Committee it meant only one thing, and that was that the reasons for cancellation of the plaintiffs entry permit were accepted by the Review Committee. There was nothing new that could be relayed to the plaintiff. Thirdly, the order the plaintiff seeks has no basis. As between the Committee of Review and the Foreign Affairs Minister, the plaintiff is a stranger. This Court cannot intervene and order the Committee of Review to give its reasons for its decision to the Minister. Between them, the Minister had to be aware of the reasons because if the Committee had confirmed his decision, it must have accepted the reasons that he gave to the Committee in the first place.

I now deal with the orders sought in (a) and (b). As far as the relief (a) goes, I have examined the decision-making process by the Foreign Affairs Minister and the Committee of Review and, apart from the unfairness aspects that I have discussed, I have not been able to see any breach of the process and/or actions which are ultra vires the powers prescribed under the Migration Act. I consider therefore there is nothing to review.

As far as the relief (b) is concerned, from the Supreme Court decision in Raz’s case it is clear that even if the Minister for Foreign Affairs and the Committee of Review have acted within their respective powers, if their decisions were harsh and oppressive, those decisions can be declared unlawful and struck down. I had trouble in understanding the plaintiffs argument during the submissions. I wanted to know what specific act or acts by the Foreign Affairs Minister and the Committee of Review was harsh and oppressive. On the one hand, the plaintiff claims that the fact that no reasons at all for cancellation of the entry permit have been given by the Foreign Affairs Minister and the Committee of Review was harsh and oppressive. On the other hand, the plaintiff says the reasons given were not valid reasons, or the kind of reasons that would not warrant cancellation of any entry permit. Taking the first, it should now be clear that the plaintiff knew the reasons, unfortunately, in a humiliating way. In his evidence he has expressed no doubt about the reasons. I do not consider that s 41 of the Constitution is meant to cut down any legitimate act as unlawful for minor indiscretions and acts that cause annoyance to a person. If the courts can use s 41 as a permanent pennant waving at all the decision-making authorities, there may not be any decisions made at all. In this respect, I agree with the cautious remarks by Hinchliffe J in Tarere v ANZ Banking Group (PNG) Ltd [1988] PNGLR 201 at 205. That caution should be highly relevant when it comes to the exercise of powers in relation to the administration of migration and nationality laws.

The major question, I think, is whether the decision to deport the plaintiff on grounds of which he has become aware and has been able to refute by evidence must be declared unlawful under s 41 of the Constitution. The reasons for deportation were stated in a Minute issued from the Office of the Minister of Foreign Affairs on 11 January 1989:

"It took over 3 years for Valentine to take legal action on this matter. Apparently he waited for Mr Somare to get back into Government so that if successful in his legal action, the State will pay him the money.

The legal action by Valentine is an unnecessary disruption and therefore a waste of time to the development needs of people of PNG.

Valentine’s contribution to the development needs of PNG is next to nothing or insignificant."

Looking at the reasons together with par 3.7 "Political Implications" of the Brief to the Prime Minister and to the Committee of Review, it is more than clear that the reasons were political:

"It is anticipated that the opposition will take advantage of the defamation action to smear the good name and image of Mr Somare and the Government in general. This view is reinforced by the fact that Mr Wingti and other leaders now in the Opposition were instrumental in calling for the Pelair Inquiry in 1985. Furthermore, the mere fact that a substantial amount of money is involved will probably attract political attack on Mr Somare and the Government."

I do not think that I, as a member of the judiciary, should attempt to analyse the merit of the reasons. Mr Valentine had produced medical reasons to say he had the writ issued late because of his illness. He has a notable doctor like Dr Bradley to support his reasons. He may not intentionally have had the writ issued during a particular time. As far as the law is concerned, the plaintiff has plenty of time — six years from the incident constituting the cause of action — in which to commence proceedings: see s 16 of Statutes of Frauds and Limitations (Ch No 330). Nevertheless, to examine the reasons for deportation against the medical evidence and the contentions of the plaintiff is to evaluate a political reasoning and judgment that I, as a member of the judiciary, have no right whatsoever to do. In my view, to do so is to use s 41 of the Constitution in a manner not allocated by any constitutional provision to the judiciary. I can easily be tempted to say that any deportation for political reasons is harsh and oppressive. That cannot be correct. Take, for example, any alien who tries to set up a South African type of government in this country; he may not last long in the country; he may be deported immediately. That is a deportation for political reasons. Likewise, any alien who uses Papua New Guinea soil to involve himself actively in the promotion of the independence of West Irian may be deported for political reasons. That can hardly be harsh and oppressive.

The only grounds upon which the decision to deport the plaintiff could be harsh and oppressive is the effect of the deportation on the defamation action commenced by the plaintiff. I consider the effect not drastic. Once the suit has been commenced, the judicial process will take its course. The plaintiffs presence is not needed on a daily basis. He is an Australian whose country is within proximity and for historical reasons there are always strong business and personal ties which make it very easy to give further instructions from Australia. The only time his presence is necessary is when he has to give evidence. A person whose entry permit is cancelled is not necessarily banned from the country forever.

For all the reasons I have given, I refuse the orders sought by the plaintiff.

Application dismissed

______________

Lawyer for the plaintiff: K Y Kara, Lawyers.
Lawyer for the defendants: State Solicitor.