Tai v Madao [2018] PGNC 260; N7365 (18 June 2018)

N7365

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 119 of 2011

BETWEEN
JACINTA TAI
Plaintiff

AND
DELILAH MADAO
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Polume-Kiele J

2017: 15 November & 8 December
2018: 18 June

CIVIL LAW- Application for obtaining a Papua New Guinea passport, Section 4 – Passport Act, Chapter 17 ; powers to issue, refuse or cancel a Papua New Guinea passport, s 16 – Passport Act Chapter 17 - s 12 (f) – false and misleading statement - Passport Act, Chapter

CIVIL LAW- Claim for damages for breach of duty of care – relevant considerations

Cases Cited:

Joseph Lemuel Raz v. Paulus Matane [1986] PNGLR 38
NCDC v. Crusoe Pty Ltd [1993] PNGLR 138
Philip Kian Seng Lee v Honourable John Pundari (2001) N2146
Premdas v. The State [1979] PNGLR 329
Telepage Pty Ltd v. PTC (1987) N605

Counsel:

Mr Thomas Ilaisa, for the Plaintiff
Ms Marina Elisha, for the Defendants

RULING

18^th June, 2018

1. POLUME-KIELE J: The Plaintiff’s claim is for damages following a number of attempts to renew her passport. Trial was conducted on the 15^th of November 2017 and parties presented their submission on the issues of liability and damages on the 8^th of December 2017.
   
2. I now hand down my decision.
   

Background facts

3. The Plaintiff prior to the institution of this proceedings had been a student at Asia Pacific University, Japan. Whilst studying in Japan, she attempted to renew her passport (No. ...) which was due to expire in 2008 with the PNG Embassy in Japan. The plaintiff in this present case had lodged her Papua New Guinea passport for renewal. However, there has been an amendment to the date of birth. This amendment now reads 2^nd of February 1976 instead of the original date of birth as the 2^nd February, 1969. A difference of 7 years in age.
   
4. Given the new date of birth, the Defendants were not able to process the application and issue a new passport with the amended date of birth within reasonable period of time as anticipated by the plaintiff.
   
5. The plaintiff now says that the non-renewal of the passport led to loss of a place at the Asia Pacific University in Japan where she had originally been an undergraduate student with intent to continue on toward a Master’s program and her claim for damages.
   

Plaintiff’s Evidence

6. Given the denial of passport renewal, the Plaintiff travelled to Port Moresby on a number of occasion using her old passport to pursue her passport renewal and or application for a new passport. Her attempts at the Port Moresby Immigration Office were also met with the same denial.
   
7. Faced with this situation, the Plaintiff returned to Japan, using the original passport on the 2^nd June, 2007. However on the 15^th July, 2007, the plaintiff returned to Port Moresby to follow up on the progress of her application for a new passport but again, there was no real progress made to facilitate this application. She then returned to Japan on the 4^th of August, 2007 using her old passport as it still had a valid re – entry permit to Japan.
   
8. The following year, on the 15^th March 2008; the Plaintiff returned to PNG, to follow up on her passport application but again, no new passport was issued. With no new passport on hand, she was compelled to defer a Master’s program at the Asia Pacific University which she says she has been accepted to pursue. However due to the ongoing delay in the issue of the new passport, she claims that this then led to non-acceptance of a place at the Asia Pacific University.
   
9. The Plaintiff says that the First and Second Defendants were negligent in the handling of her passport application resulting in her being denied of a continuing scholarship at APU, and consequently, loss of a place for the Master’s Program. She also says that the First and Second Defendants actions and or omissions had resulted in her incurring enormous monetary costs. She was subjected to humiliation and suffering due to the inordinate delay in processing her passport application. She also suffered mental anguish, stress and frustration due to loss of scholarship and termination of Master’s Program and loss of integrity, character and good name.
   

Documents tendered into Court by consent

10. The plaintiff’s relied on two affidavits which were tendered into evidence by consent. The first affidavit is sworn on 6^th October 2012 and filed on 19^th October 2012 (Document # 18) Court Exhibit 1.
    
11. The Second affidavit, sworn on the 10^th October, 2013 and filed on 14^th October, 2013 (Document # 39) Court Exhibit 2.
    

The Defendants’ evidence

12. The progressing of the application for a new passport had been delayed. The application for renewal contained major alteration to the details of the applicant. These details were not in compliance with the original documentation submitted for a Papua New Guinea passport that was issued to the plaintiff sometime in 1995.
    
13. The reasons relied upon by the plaintiff contrary to the requirements under the Passport Act, Chapter 17.
    
14. Two affidavits were tendered into evidence by consent. The first was sworn by the fist defendant, Delilah Madao on the 13^th of October 2017 and filed on the 14^th of October 2017, Document No. 55; marked and referred to as Exhibit “A”. The second affidavit is sworn by Sarrubabel Wakaina, on the 13^th of October 2017 and also filed on the 14^th of October 2017. The affidavit is referred to and marked as Exhibit “B” for the defendants.
    

Issues

15. In order to determine the matter, I consider that three issues relevant for consideration. These are:
    
    • Firstly, whether the amended date of birth of the plaintiff indicated on the application for passport renewal in compliance with s 12 of the Passport Act, Chapter 17?;
      
    • Secondly, whether there are processes under the Act which needs to be invoked to verify the anomaly; and
      
    • Thirdly, whether the defendants were under an obligation to issue a renewal of a Papua New Guinea passport or to issue a new Papua New Guinea passport given the previous information held in their records or on the original Papua New Guinea passed issued to the plaintiff?
      

Undisputed fact

16. It is not disputed that the plaintiff has altered her date of birth from 2^nd of February 1969 to the 2^nd of February 1976. As to when the actual date of the original passport being issued, these details are not in evidence. However it is presumed from her evidence that the first passport was issued sometime in 1995.
    

The law

17. The Passport Act Chapter 17 provides for application for obtaining a Papua New Guinea passport. In this case, the relevant provisions are:
    
    • S 12 of the Passport Act empowers the Minister (Foreign Affairs) to refuse issue and cancellation of passport issued under the Act. Section 2 lists 6 grounds upon which the Minister can refuse to issue and cancel a passport. These grounds are:

(a) intends, contrary to law, to take a minor or a person under disability out of Papua New Guinea; or

(b) is the subject of a warrant of arrest or outstanding warrant of arrest issued under the Arrest Act or any other law; or

(c) has failed or refused to pay to the State, money owing to the State, in respect of expenses incurred by the State in, or in connexion with, effecting his return to Papua New Guinea from a country outside of Papua New Guinea; or

(d) is the subject of a court order prohibiting his departure from Papua New Guinea; or

(e) has engaged in activities that have caused or are likely to cause, serious damage to the security of Papua New Guinea; or

(f) has obtained or is reasonably suspected of having obtained a Papua New Guinea passport, by means of a false or misleading statement.

18. In this case, s 2 (f) applies to the plaintiff. In that upon the plaintiff’s own process, she has now disclosed that she had obtained a Papua New Guinea passport by means of a false or misleading statement. It is irrelevant as to whether she submitted the application herself or through her step-father or father-in-law as the case maybe.
    
19. In the event where processes have not been followed, Section 16 of the Act specifically sets out the process in which an applicant for a Papua New Guinea passport makes a false or misleading statement. Section 16 provides:
    

A person who—

(a) for the purpose of obtaining a Papua New Guinea passport, a certificate of identity or other document of identity; or

(b) in support of an application for or for renewal of, a Papua New Guinea passport, a certificate of identity or other document of identity for any other person, makes a false or misleading statement, whether orally or in writing, is guilty of an offence.

Penalty: A fine not exceeding K10, 000.00 or imprisonment for a term not exceeding six months or both.

Consideration of the issues

20. In considering the issues before this court, I am of the view that this case does not involve the issue as to whether the officers of the Office of Immigration were negligent in the performance of their duties in regard to process an application which does not confirm to legal requirements. The issue here relates to whether the information provided to the Office of Immigration was sufficient to justify an alteration to a citizen’s personal bio data as contained in an Official PNG Government Document, a Passport? Whether an Immigration Officer has powers to alter such important and vital Government Document?
    
21. Given these circumstances, the defendants are required to enquire further into the matter and they are entitled to take reasonable steps within their authority, to enquire further and to seek further details of the plaintiff. In any given situation, the onus lies on the plaintiff to satisfy the requirements prescribed under the Passport Act and non-compliance with these legal requirements carry penalties. Such penalties would result in the imposition of a hefty fine or imprisonment, whichever is appropriate.
    

Deliberation of the issues

22. The applicable standard of proof in civil cases is on the balance of probabilities and thus the question to ask is has the Plaintiff proven on the balance of probabilities that the information provided to the First and Second Defendants in the first instance were in compliance with the Passport Act in order to process the application for renewal of a Papua New Guinea passport to the plaintiff?
    
23. In assessing these process, I have come to accept that notice has been given to the plaintiff of the reasons for the non-renewal of the Papua New Guinea passport. Otherwise, she would not have known why the issuance of a new passport was not possible. In that the statement relating to the details of her birth were not consistent.
    
24. So in this regard, if the plaintiff is aggrieved by the decision of the defendants, she was entitled under s 13 of the Act, to seek a review of that decision not to renew her passport. Whilst the processes prescribed under the Act and is there for her benefit, I find that the plaintiff has not provided any evidence of her attempts in seeking a review of the decision not to renew her Papua New Guinea passport or an application seeking a review of the administrative decision of the defendants not to renew her passport to the Prime Minister of Papua New Guinea.
    
25. Under s 20 (1) provides for transitional provisions during which a Papua New Guinea passport, certificate of identity or other document of identity issued under the Act replaced by this Act and in force immediately before the commencement date shall continue in force for the period for which it was issued and shall have effect as if it were issued under this Act. Further, s 20 (3) provides that an officer authorized or given powers, duties or functions under the Act replaced by this Act shall be deemed to have been authorized or given those powers, duties or functions under this Act with such variations as may be necessary to be applicable under this Act and in circumstances under s 20 (4) & (5) where immediately in situation where, the Minister has refused an application for, or a renewal of, a Papua New Guinea passport; or cancelled a Papua New Guinea passport, an applicant is at entitled within 28 days of the decision, to make a written application to the Minister seeking a review of that decision.
    
26. Under the Act, the Minister has authority to refuse or renew a Papua New Guinea passport. A decision by the Minister to refuse or renew a PNG passport is subject to review by a Review Committee.
    
27. Taking into consideration all the relevant provisions of the Passport Act, I find that s 15 of the Act empowers an officer (authorised under the Passport Act) to order a passport to be delivered up if the officer reasonably suspects that the Papua New Guinea passport has been obtained, or of having been obtained, by means of any false or misleading statement must, on demand by an officer, deliver it up to the officer.

Penalty: A fine not exceeding K100.00 or imprisonment for a term not exceeding three months.

28. Whilst this may not be the exact same situation here, the fact that the Papua New Guinea passport did contain false or misleading statements, it is only proper that the matter be dealt with appropriately. So that being the case here, I find that it is the defendants who are responsible for determining whether or not, to refuse or renew a Papua New Guinea passport, subject to any directions of the Minister, hence they are at liberty to retain by or on behalf of the Department a passport during the course of performing their responsibilities in processing an application for a passport or renewal, as the officer thinks fit.
    
29. Consequently, the defendants were authorised under the Passport Act to retain the Papua New Guinea passport that was submitted for renewal under s 15 of the Act. The reasons being that the Papua New Guinea passport was obtained by means of false and misleading statements (under s 12 (2) (f) and s 16 of the Passport Act.
    
30. Papua New Guinea passports are issued to citizens by the relevant State authority to persons upon their own application. It is a requirement under the Act for an applicant to provide information and or statement that are truthful and not false or misleading. Once a Papua New Guinea passport is issued, such document enables him or her to travel out of the country. When a holder of a PNG passport travels out of the country he or she is not just traveling as a person but is traveling as a Papua New Guinean (see Philip Kian Seng Lee v Honourable John Pundari (2001) N2146.
    
31. Taking into consideration all of the above matters, I find that the defendants were not negligent in the performance of their duties. They were mandated under law to process the application according to the information presented before it. It was within their powers to withhold any authorisation where information provided do not conform to legal requirements under the relevant law, the Passport Act; at the material time.
    
32. Here, the Plaintiff in her application for a new passport provided a date of birth inconsistent with that of the date of birth initially provided on her first passport. Whilst the Plaintiff explained the circumstances why her first passport showed 2^nd February, 1969 and why she wanted to change it to 2^nd February 1976 because it was an error done by her step-father. No evidence is provided as to why such error if it is in fact an error, was not picked up immediately after the collection of the Papua New Guinea passport or immediately prior to her first international travel out of Papua New Guinea. In fact, I find no evidence provided by the step-father or father-in-law verifying such an error.
    
33. Given these situations, I find that the proceedings are misconceived, vexatious and frivolous as no reasonable cause of action has been pleaded against the defendants. The plaintiff had contributed to her loss by her own negligence by providing false and misleading information in regard to an application for a Papua New Guinea passport. In fact, when she picked up the original passport sometime in 1995, she was well and truly aware of the record of date of birth which is registered as the 2^nd of February 1969 entered on the original Papua New Guinea passport issued in 1995. If there had been any issue in regard to the actual date of birth or knowledge of the defect, she failed to rectify or seek legal advice as to how to correct such a defect as soon as it was discovered there and then.
    
34. Instead, she used the passport for purposes of international travel not once but for numerous international travel, even during the time that a new application had been lodged for processing and awaiting issuance of a new passport.
    
35. Obviously, if an error is noted on any important Government document such as a passport, it is incumbent on the holder of that passport such as this case, to immediately have this corrected prior to its use. Because as soon as it is used, usage of passage in fact validates the date of birth on the Government Document, a Passport. It identifies you as a Papua New Guinea and informs the International Community of your personal details.
    
36. The plaintiff cannot after validating such a date of birth turn around and say that this is an error and that it should now be corrected because it should be changed to suit her purposes (whatever it may be?)
    
37. The plaintiff in her affidavit does not disclose as to when she discovered the defect or error, also she says is that her stepfather made an error but when was this error discovered? If it is an error why take this long to correct? I find something amiss here.
    
38. Admittedly, it is also interesting to note that from 1995 to 2007, a period of almost 13 years of being issued with her first Papua New Guinea passport, there was nothing wrong with the original passport and the date of birth as recorded on it. The date of birth only became very significant in 2007. So the question to ask is why now? What is the main significance to their changes? It is also puzzling to note that suddenly the need to change the date of birth is vital to pursuing studies in Japan for a Master’s program and securing a scholarship?
    
39. Further, the Passport Act is that a passport application form contains all the forewarnings which is directed to all applicants (parents, guardians or whoever it is that is applying and attesting to an application) for a passport (as to the correctness and truthfulness of any information and details that an applicant for a passport is required to provide. This include off course, certification by someone of authority such as a Clergyman or a Commissioner for Oaths. It also forewarns that any misinformation carries a penalty of a fine or imprisonment.
    
40. So in this case, the Plaintiff in her application for a passport to the Office of Immigration upon which a passport was issued to her has not been truthful in her application if she now challenges the records held by the Office of Immigration. The information provided in her case was by her father in law, a clergyman according to her affidavit.
    
41. With regard to the change in relation to her date of birth, the plaintiff explained the circumstances why her first passport showed 2^nd February, 1969 and why she wanted to change it to 2^nd February 1976 because it was an error done by her father -in law. Whilst it is noted that the plaintiff asserts that it was an error done by her father-in law, I find this assertion far-fetched.
    
42. According to her evidence, the original passport was issued in 1995. In 1995, the plaintiff would have been 26 years old (on her original date of birth of 2^nd February 1969) or 19 years old (on 2^nd February 1976). On either dates, she would be old enough to be completing the application form for a passport herself and be cognizance of the information required to complete her own details including that of her parents and grandparents. Further I asked, why should a parent in this case, a step-father or father make an error in regard to the age of their child? It is generally accepted that a parent would have a very good idea as to the age of their child. I therefore find it unusual for a parent or in this case, father in-law or a stepfather not to know their child’s birthday (even if adopted). Even then, why has it taken her 13 years to correct the error? The explanation fails me.
    
43. In Premdas v. The State [1979] PNGLR 329; Joseph Lemuel Raz v. Paulus Matane [1986] PNGLR 38, N525; Telepage Pty Ltd v. PTC (1987) N605 and NCDC v. Crusoe Pty Ltd [1993] PNGLR 138, N836; the decision under review does involve administrative decisions. Given such, it is also important to raise the issue as to why such a decision was made and whether there were good reasons for making such a decision. In this case, the plaintiff has not provided reasons for her decision or action to alter the official records pertaining to her date of birth except to shift the blame on her father in-law. Firstly, the plaintiff had an opportunity to rectify this error as soon as the error was discovered upon collection of the passport in 1995 but she chose not to correct that error. Furthermore. She has not provided any reasons as why she did not take any steps to rectify this error earlier in 1995 or as in this situation earlier than 2005 prior to her first trip overseas.
    
44. Here, she did intentionally travel on a passport issued to her by the defendants. By using this travel document, the plaintiff accepted full responsibility for any mistakes and or injury that would have occurred as a result of false or misleading statement. As to why the year 2008 became a very vital year to the plaintiff to rectify the error in the record of her date of birth? That is a matter only she is able to answer.
    
45. Under the Passport Act, the Office of Immigration is obliged to process an application that conform to formalities under the Passport Act. The requirement is that an application for a passport is process in accordance with the Passport Act. If there are inconsistencies, than they are required to seek clarification. Such clarification were made known to the plaintiff by the PNG Embassy in Japan, which is their overall responsibilities. The defendants were acting within their powers and functions of processing an application for renewal of a Papua New Guinea passport. The Plaintiff being an applicant for a PNG passport is obliged under the Passport Act to provide honest and truthful information as to her status and details. And if anything, should have refrained from using the original passport until all issues relating to her date of birth are verified. Instead, she continued the use of the original passport up to and until its expiry date. The claim is therefore frivolous and vexatious. Furthermore, it is misconceived and an abuse of the court’s progress.
    
46. In the circumstances, I find that the plaintiff has not proven on the balance of probabilities that she has suffered injury upon which damages can be awarded.
    
47. Consequently, I make no finding as to damages.
    

Orders of the Court

(i) The proceedings are frivolous and vexatious, for there being no cause of action disclosed against the defendants and for being an abuse of the court’s process

(ii) I make no award for damages.

Judgment accordingly,
_______________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendants