Cheikh v Pato [2017] PGNC 208; N6879 (13 September 2017)

N6879

PAUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 438 of 2017

BETWEEN:

AZZAM EL CHEIKH
Plaintiff

AND:
THE HONOURABLE RIMBINK PATO, Minister for Foreign Affairs and Immigration
First Defendant

AND:
SOLOMON KANTHA, Acting Chief Immigration Officer
Second Defendant

AND:
THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Gavara-Nanu J

2017: 1^st August & 13^th September

JUDICIAL REVIEW – Application for leave – Applicant allowed to enter and live in PNG by being granted an exemption from the requirements of the Migration Act, 1978 – Applicant having no entry permit and passport.

JUDICIAL REVIEW – Application for leave - Applicant generally challenging the decisions of the Minister for Foreign Affairs and Immigration to refuse his application for a refugee status, to deport him and to have him detained pending his deportation – Migration Act; ss. 12,13,14 and 15 – Migration Regulation, 1979; ss. 14 (1), 15 (2) - Applicant having sufficient interest – Power of the Minister – Exercise of power conferred by statute - No specific challenge to the exercise of power by the Minister under the relevant statutory provisions.

JUDICIAL REVIEW – Application for leave - Applicant claiming breaches of his rights under the Constitution and Human Right laws. Applicant not pleading proper grounds of review – National Court Rules; Order 16 r 13 – Claims should be appropriately made in the Human Rights Court.

JUDICIAL REVIEW – Application for leave – Originating Summons – Statement in Support – Pleadings - ambiguous – Matters raised inappropriate for judicial review - Proceeding an abuse of process and incompetent.

JUDICIAL REVIEW – Application for leave - Delay - Over fifteen months delay inordinate- Absence of a reasonable explanation – A substantive relief of certiorari sought – National Court Rules – Order 16 r 4 (2) – Delay well beyond 4 months.

Cases cited:
Papua New Guinea Cases

Alois Kingsly Golu v. The National Executive Council & Ors (2011) N4425
Betty Palaso as Commissioner Genera of Internal Revenue Commission v. Dr Phillip Kereme as Chairman of Public Services Commission & Ors (2016) N6638
Betty Palaso as Commissioner General of Internal Revenue Commission v. Dr Phillip Kereme as Chairman of Public Services Commission (2017) N6816
Erwin Guggemos v. The Acting Minister for Foreign Affairs & The State [1987] PNGLR 352
Innovest Ltd v. Hon. Patrick Pruaitch & The State (2014) N5949
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Peter Makeng v. Timbers (PNG) Limited (2008) N3317

Other cases cited:

R v. Chief Constable of Merselyside Police, Ex p. Calveley [1986] Q.B 424; [1986] 1 All E.R 257
R.v Epping and Harlow General Commissioners Ex p. Goldstraw [1983] 3 All E.R 257
R v. Inland Revenue Commission, Ex p. National Federation of Self-Employed and Small Businesses Ltd [1982 ] A.C 617; [1981] UKHL 2; [1981] 2 All E.R 93

Legislations referred to:

Constitution of the Independent State of Papua New Guinea
Migration Act, 1978
Migration Regulation, 1979

Counsel:

G. Shepherd with W. Mininga, for the Plaintiff
I. Molloy with R. Bradshaw, for the State

13^th September, 2017

1. GAVARA-NANU J: The plaintiff is seeking leave to review the decisions of the first defendant refusing to grant him a refugee status, to order his deportation and detention pending the deportation. The plaintiff was previously held at the Manus Island Regional Processing Centre (the “MIRPC”), together with others who were transferred from the Christmas Island Detention Facility in Australia. The transfer was made under a special bi-lateral agreement between Australia and PNG for the plaintiff and the other transferees who were seeking refugees status to be processed at the MIRPC.
   
2. The first defendant made his decisions on 29 January, 2016, after receiving two adverse assessment reports on the plaintiff from the Department of Foreign Affairs and Immigration investigation committee. The first defendant’s decisions were made pursuant to the powers conferred on him under ss. 12, 13,14 and 15 of the Migration Act, 1978, (the “Act”) and ss. 14 (1) and 15 (2) of the Migration Regulation, 1979, (the “Regulation”).
   

3. The plaintiff seeks leave pursuant to the Amended Originating Summons.

4. The issues before the Court can be addressed by answering the following two questions:

i. Does the plaintiff have standing to make this application? if so;
ii. Is the application competent?

5. The second question also covers the related question of whether the application is an abuse of process.

6. The proceeding was issued on 8 May, 2017 when the Originating Summons was filed. The Statement in Support was filed on the same day. Initially Henaos Lawyers acted for the plaintiff however they ceased to act for the plaintiff on 2 May, 2017, when they filed a Notice to that effect.

7. Notably by the time Henaos Lawyers ceased to act for the plaintiff, no Notice regarding the application was filed and served on the Secretary for Justice. The Supporting Affidavit(s) and the Affidavit Verifying the Statement were also not filed.

8. All the above mentioned documents are required to be filed and served under Order 16 r 3 (1) to (4) of the National Court Rules (NCR), before an application for leave can be made. This requirement is made mandatory by these rules which are in these terms:

3. Grant of leave to apply for judicial review. (UK. 53/3)
(1) An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.
(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported —
(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and
(b) by affidavit, to be filed before the application is made, verifying the facts relied on.
(3) The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.
(4) Without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicants statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.

9. On 28 June, 2017, Young & Williams Lawyers who are the current lawyers for the plaintiff filed and served the Notice mentioned above on the Secretary for Justice under Order 16 r 3 (3) of the NCR. On the same day, an Amended Originating Summons, an Amended Statement in Support and an Affidavit in Support which also verifies the Statement in Support were filed. There is nothing improper or irregular under the rules for the apparent delay in filing and service of these documents as long as they have been filed and served before leave is sought.

10. In is trite law that for the plaintiff to obtain leave he must satisfy four basic requirements. Failure to satisfy any one or all of these requirements may result in the application being refused. These requirements constitute the process and the fundamental procedural laws regarding leave applications. However, judicial review being a discretionary remedy the application of the four requirements is subject to the wide discretion of the Court: Innovest Ltd v. Hon. Patrick Pruaitch & The State (2014) N5949. There may however be exceptions where the administrative remedies are required either by a statute or a constitutional law. This point is elaborated later in the judgment.

11. First, the plaintiff must show that he has standing or sufficient interest in the matter to which the application relates. This would require the plaintiff to show that his interests are directly affected by the decisions. If the plaintiff is able to satisfy this requirement then leave should be readily granted to him by the Court. On the other hand, if the plaintiff’s interests are not directly affected by the decisions or that the application is made as a matter of public interest, the pertinent question still is whether the plaintiff has sufficient interest in the matter. In deciding this question the Court must have regard to all the facts and circumstances of the case. R v. Inland Revenue Commission, ex p. National Federation of Self-Employed and Small Businesses Ltd. [1981] UKHL 2; [1982] A.C 617, at 659; [1981] UKHL 2; [1981] 2 All E.R 93 at 107.

12. Second, the plaintiff must show that there is no delay from the date of the decision to the date leave is sought. Where certiorari is sought as a substantive relief, the period prescribed under Order 16 r 4 (2) of the NCR within which the application must be made is four months. If there is delay, the plaintiff should provide a reasonable explanation for such a delay. But in a case where mandamus is sought as a substantive relief, the pertinent questions for the Court are whether the application is made within a reasonable time and whether it is in the overall interest of justice to grant leave. The relevant issues for the Court to consider and take into account among others are undue delay, hardship, good administration and prejudice to the rights of others, these are stated under Order 16 r 4 (1) (b). Innovest Limited v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change & Or (supra).

13. Third, the plaintiff must show that he has exhausted all the administrative remedies before seeking leave: Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122 and Innovest Ltd v. Patrick Pruaitch & The State (supra). There may however be exceptions in which the Court may in the exercise of its supervisory power decide that it is convenient to dispense with the administrative remedies and entertain the leave applications. These types of situations may arise in cases where the plaintiffs are denied administrative remedies by the bodies in which such remedial powers are vested. An example of this is where Boards of statutory bodies operating under by-laws, regulations or some other sub-ordinate legislations fail to review complaints by persons from within such bodies, either because the Boards are suspended or they simply fail or neglect for a long period of time to review such complaints: Innovest Ltd v. Hon. Patrick Pruaitch & The State (supra); R v. Chief Constable of Merselyside Police, exp. Calveley [1986] Q.B 424; [1986] 1 All E.R 257 and R v. Epping and Harlow General Commissioners, ex p. Goldstraw [1983] 3 All E.R 257.

14. As I alluded to earlier, there may be exceptions under the following two situations. First is where an administrative remedy is a statutory requirement. In such a situation, only in an exceptional or a special case should the Court dispense with the administrative remedy and proceed to entertain a leave application. An example of such situation arising is where a statutory appeal process had not been exhausted. The question of what facts and circumstances would constitute an exceptional or a special case is a question of fact and law. Second is where an administrative remedy is either sanctioned or required by a constitutional law. In such a situation the administrative remedy is mandatory and must be exhausted first before leave is sought. An example of such situation arising is where a body established by the Constitution had refused or failed to perform its constitutional function to review a complaint. The classic example is the Public Services Commission refusing or failing to review a complaint (a personnel matter) of a public servant. In such a situation the appropriate course for the aggrieved person to adopt in my view is to seek an order for mandamus against the constitutional body to compel it to perform its function to review his complaint or grievance: Betty Palaso, as Commissioner General of Internal Revenue Commission v. Dr Phillip Kereme as Chairman of Public Services Commission & Ors N6638 and Betty Palaso as Commissioner General of Internal Revenue Commission v. Dr Phillip Kereme as Chairman of Public Services Commission & Ors N6816. It would be improper and an abuse of process for the aggrieved person to seek leave to review the primary decision from which his complaint or grievance emanated.

15. Fourth and final requirement is that the plaintiff must show that there are proper and valid grounds for review constituting or giving rise to an arguable case or serious issues for which a full trial is warranted.

16. In the Amended Originating Summons, the plaintiff is not only seeking leave, he also seeks substantive reliefs such as declarations which require interpretation of certain provisions of the Constitution. Under these reliefs, the plaintiff also seeks declarations that the legislations governing immigration are unconstitutional. In that regard, the plaintiff also challenges the power of the Head of State to make Regulations. The plaintiff further claims that his rights had been breached by the defendants and claims compensation by way of damages pursuant to s. 58 of the Constitution.

17. Seeking substantive reliefs in the originating summons quite clearly does not conform to what this Court said in Peter Makeng v. Timbers (PNG) Limited (2008) N3317 and Innovest Ltd v. Hon Patrick Pruaitch & The State (supra), viz; only leave should be sought with the decision being sought to be reviewed particularized by giving full description of the decision maker, the date of the decision and the nature of the decision(s). Substantive reliefs should be sought and pleaded in the Statement in Support together with the grounds of review.

18. In the Amended Statement in Support, the plaintiff also claims reliefs which are similar to those claimed in the Amended Originating Summons. The plaintiff also seeks orders in the nature of prohibition and injunction against the defendants. He also seeks sanctions against the defendants pursuant to s. 23 of the Constitution for breaching his constitutional rights. For the same reasons the plaintiff seeks compensation by way of damages against the defendants pursuant to s. 58 of the Constitution. The plaintiff claims that these are serious breaches and the actions of the defendants are pursuant to s. 41 of the Constitution harsh and oppressive.

19. In regard to the grounds of review in the Statement in Support, the plaintiff among other things claims that the first defendant took into account irrelevant matters and failed to properly exercise his discretion and disregarded the fact that the plaintiff’s life was at risk if he returned to his country. He further claims that the first defendant’s committee which was set up to investigate and assess his application for a refugee status was not obligated to demand proof that his life was at risk back in his country. He also claims that he was not given an opportunity to be heard thus there were breaches of natural justice by the committee. He also claims that he was denied access to legal aid.

20. The plaintiff also pleads and relies on s. 2 of the Claims By and Against the State Act, 1996, and claims that he can sue the State for damages. He gives a detailed description of the conditions in the MIRPC and claims that food, medical and psychological care given to him and other transferees are also poor and says that they are given inhumane treatment.

21. The plaintiff also claims that the defendants breached their obligations under the Memorandum of Understanding (the “MOU”) entered into between Australia and PNG, for his transfer to and detention at the MIRPC. He highlights the alleged breaches by the two countries of their obligations under the United Nations Conventions relating to Status of Refugees, the Constitution and the MOU.

22. The State opposes the application on a number of grounds. First, the plaintiff has no standing to bring this application. Second, the application suffers from an inordinate delay as it is being made over fifteen months after the decisions were made. Third, the application is an abuse of process because the plaintiff has issued another proceeding before the Humans Rights Court which raises similar issues as those raised in this application. Fourth, the application is incompetent because the Amended Originating Summons and the Statement in Support are not properly and correctly pleaded and the pleadings are ambiguous. It was argued that given that the substantive reliefs sought and the purported grounds of review relied on essentially raise issues relating to alleged violation of the plaintiff’s basic human rights, the plaintiff should have issued the proceeding in the Human Rights Court. In any event, the State argued that there is no arguable case or serious issues to be tried for two basic reasons. First, the plaintiff has not pleaded any proper and competent grounds of review. Second, the first defendant made his decisions after receiving two adverse assessment reports on the plaintiff.

23. It was also submitted that the plaintiff has failed to show or demonstrate that the first defendant erred in the exercise of his power under ss. 12, 13, 14 and 15 of the Migration Act and s. 14 (1) and 15 (2) of the Migration Regulation in making his decisions.

24. Mr Ian Molloy of counsel for the State argued that the plaintiff has no standing because after his application for a refugee status was refused by the first defendant he became a prohibited immigrant living illegally in PNG. In support of this argument, he among other things relied on Erwin Guggemos v. The Acting Minister for Foreign Affairs & The State [1987] PNGLR 352. Notably, in that case the plaintiff had lived in PNG for several years without having either an entry permit or a passport. Mr Molloy argued that the plaintiff in this case suffers the same fate because he was only granted an exemption from the requirements of the Migration Act, he had no entry permit or a passport.

25. I find the circumstances in Erwin Guggemos v. The Acting Minister for Foreign Affairs & The State (supra), distinguishable from those in this case, because in that case the plaintiff had been living in PNG without an entry permit or a passport for several years before applying for leave for judicial review of a purported cancellation of his entry permit. Not surprisingly the trial judge found that the plaintiff was a prohibited immigrant because his entry permit and passport had expired and was living illegally in PNG. The Court also said because the plaintiff had no valid entry permit or a passport there was nothing for the Minister to cancel.

26. In this case, I am of the view that although the plaintiff did not have an entry permit or a passport, his exemption from the requirements of the Migration Act, which was duly gazetted was legally valid thus giving him the permission and the authority to live in PNG. That exemption continued to be valid until the refusal by the first defendant to grant him a refugee status. This is the fundamental difference between the two cases. The plaintiff is now seeking to review that decision which denied him the right to become a refugee.

27. The requirement for the plaintiff to show that he has a standing to bring this application is mandatory under the terms of Order 16 r 3 (5) of the NCR which reads: “The Court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates”. In other words, it is a mandatory requirement under this rule for the plaintiff to show that his interests are affected by the decisions and is aggrieved by them.

28. In this case, it is quite clear that the plaintiff’s interests are affected directly by the decisions and is aggrieved by them. I am therefore satisfied that he has sufficient interest in the matter: Alois Kingsly Golu v. The National Executive Council & Ors (2011) N4425. The State’s argument on standing must therefore fail.

29. In regard to the administrative remedies, I am satisfied that the plaintiff has exhausted all such remedies and is entitled to seek leave for judicial review.

30. This leaves me to consider the issues of delay and arguable case.

31. In regard to delay, the State argued that a period of over fifteen months delay in bringing this application is undue and unreasonable and no reasonable explanation has been provided by the plaintiff. Mr Greg Shepherd of counsel for the plaintiff told the Court that one of the principal reasons for the delay was that the plaintiff could not obtain legal advice because he does not understand English. Furthermore, although there were lawyers who offered to assist him, he did not engage them because he could not trust them. He submitted that the first real opportunity the plaintiff had to consult a lawyer was early this year when Henaos Lawyers took up his case after he was transferred from Manus to Port Moresby after his application for a refugee status was refused. He however, encountered more problems later when Henaos Lawyers ceased to act for him. The Court was told that Young and Williams Lawyers are first to permanently represent him. Mr. Shepherd submitted that these are reasonable explanations for the delay.

32. The plaintiff’s explanation for the delay in bringing this application is very much centred around his inability to obtain legal advice earlier. I have read the supporting affidavits for the State sworn by Dino Mas, Bridgette Wase, Jacinta Nahal, Esther Gaegaming and Solomon Kantha, which Mr Molloy has also relied on. I note from Annexure “A” to Esther Gaegaming’s affidavit sworn on 19 July, 2017, that the plaintiff was told in a letter dated 21 November, 2014, by the Department of Foreign Affairs and Immigration that he had a right to engage a lawyer of his choice to assist him if he had any complaints. Other transferees were advised of the same opportunity and they took advantage of it and obtained legal advice.

33. It appears to me that in plaintiff’s case, he deliberately refused to make use of that opportunity because of his distrust in the lawyers who offered to assist him. I also note from Bridgette Wase’s affidavit sworn on 22 June, 2017, that when the plaintiff was served with a Ministerial Final Determination Notification Report on his adverse assessments by the Department of Foreign Affairs and Immigration officials, he was angry and threw the Report in a rubbish bin after telling the officials that PNG had no laws to deport him.

34. There is also evidence that when the plaintiff was being transported by plane to Port Moresby from Manus, he became very violent in the plane by hitting his head against the window panel resulting in the window panel being damaged. The cost of the damage was just over K26,000.00.

35. I have also read the supporting affidavits for the plaintiff including his own affidavit and note that the above claims by the State are not denied or challenged by him.

36. It is plain that the real reason the plaintiff failed to obtain legal advice earlier and the long delay in making this application was his refusal to engage the lawyers who offered to assist him because he could not trust them. He was also arrogant and unwilling to co-operate with the immigration and other government officials and agencies to discuss issues that affected him. In the circumstances, given that one of the substantive reliefs the plaintiff is seeking is an order for certiorari, I find that the plaintiff has failed to provide a reasonable explanation for the delay which spanned well over the four months period required under Order 16 r 4 (2) of the NCR.

37. I am not convinced that the plaintiff’s lack of understanding English language contributed to his inability to obtain legal assistance earlier. I come to this conclusion given that not only did he have access to interpreters but he was reminded by the relevant government agencies that he had the right to engage a lawyer of his own choice. His own evidence also confirms that he chose not to seek advice from the lawyers who offered to assist him because he did not trust them.

38. The grounds of review that an applicant may rely on in a judicial review application are clearly stipulated under Order 16 r 13 of the NCR. These grounds of review may be summarized as follows:

i. the first defendant had no power or had acted in excess of his powers in making the decisions; or
ii. the first defendant made an error or errors of law (on the face of the record) in his decisions, including breach of procedures; or
iii. the first defendant failed to give the plaintiff an opportunity to be heard, thus failed to act fairly when making the decisions; or

4. the first defendant’s decisions were made with real or apprehended bias and or bad faith; or
6. the first defendant took into account irrelevant and or extraneous matters; or
7. the first defendant’s decisions were so unreasonable that no reasonable tribunal could have made such decisions. This ground is also referred to as the Wednesbury rule or principle.
   

39. An error or errors of law referred to in (ii) above would cover abuse of process and competency of the application.

40. When one looks at the grounds of review in the Amended Statement in Support, only two of the above possible grounds of review are pleaded and relied on by the plaintiff viz; (iii)and (vi) which are claims that the plaintiff was not given an opportunity to be heard before the decisions were made and that the first defendant took into account irrelevant matters in making the decisions.

41. The plaintiff does not deny that the first defendant had power under ss. 12, 13,14 and 15 of the Migration Act and ss. 14 (1)and 15 (2)of the Migration Regulation to make the decisions. As to the claim by the plaintiff that he was not given an opportunity to be heard, the claim has no basis because the first defendant made the decisions after considering two adverse assessment reports on the plaintiff. I also find that the first defendant took into account all the relevant matters when making the decisions. So the plaintiff was given a fair and balanced hearing before the first defendant made his decisions, and prima facie, I see no error in the decisions.

42. Any challenge to the validity of the first defendant’s decisions must relate directly to the exercise of power by the first defendant under ss. 12, 13, 14 and 15 of the Migration Act and ss. 14 (1) and 15 (2) of the Migration Regulation when making his decisions. The plaintiff has failed to mount such a challenge and this is fatal to the application.

43. In my view, the plaintiff’s claims for damages based on alleged breaches of his constitutional and human rights by the defendants are not matters that can constitute proper and valid grounds of review and they are not matters that can be raised in a judicial review proceeding. This proceeding is in that regard an abuse of process and is incompetent.

44. The defects in the pleadings in both the Amended Originating Summons and the Amended Statement in Support cannot be cured by amendments because the matters pleaded, especially in the Statement in Support do not constitute proper and competent grounds for judicial review. They are irrelevant for judicial review and they fall outside the jurisdiction of this Court: Innovest Ltd v. Hon. Patrick Pruaitch & The State (supra).

45. Whilst it is true that the rules allow for damages to be claimed in the Statement in Support, such damages are limited to those that may be claimed in an ordinary civil suit (Order 16 r 7). In this case, the plaintiff is essentially claiming damages as a form of compensation for the alleged breaches of his constitutional and basic human rights. These types of claims are not envisaged by Order 16 r 7 of the NCR.

46. For all these reasons, the application is dismissed with costs.

47. Orders accordingly.
_______________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiff
Bradshaw Lawyers: Lawyers for the State