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Smith v Hulahau [2023] PGNC 370; N10540 (28 September 2023)

N10540


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 30 OF 2023

BETWEEN:
KEVIN RUSSELL SMITH
First Plaintiff


AND:
BRETT McKENZIE SMITH
Second Plaintiff


AND:
CAMERON DALE CRAIG
Third Plaintiff


AND:
NICOLE ANN DEMOSKY
Fourth Plaintiff


AND:
THOMAS LEIGH TRACY
Fifth Plaintiff


AND:
CRAIG STEPHAN BUNT
Sixth Plaintiff


AND:
PHILIPNERI BALASINGAM
Seventh Plaintiff


AND:
STANIS HULAHAU, in his capacity as Chief Migration Officer for the Papua New Guinea Immigration and Citizenship Authority
First Defendant


AND:
THE HONOURABLE JOHN ROSSO MP, in his capacity as the Acting Minister for Immigration and Labour
Second Defendant


AND:
GEORGE TAUNAKEKEI, in his capacity as Secretary of the Department of Labour and Industrial Relations
Third Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Kandakasi, DCJ
2023: 09th August, 28th September


JUDICIAL REVIEW – Application for leave for review of two administrative decisions – Administrative appeal process pending determination – Requirement for exhaustion of available remedy – Exception to – No case of made out - Administrative process not fully exhausted – Application too premature – Application dismissed.


Cases Cited:
Kian Seng Lee v. Pundari, Minister for Foreign Affairs (2001) N2146
The Independence State of Papua New Guinea v. Kapal [1987] PNGLR 417
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122


Counsel:
Mr. M. Goodwin, for Applicants
No Appearance for the Respondents


DECISION ON APPLICATION


28th September 2023

  1. KANDAKASI DCJ: The plaintiffs are applying for leave to review the following decisions or indecisions:

Hearing of the application


  1. Despite being served with the proceedings and notice of the hearing date communicated to the Solicitor General’s Office, no one made any appearance for or on behalf of any of the State parties. With leave of the Court the hearing of the application proceeded ex parte.

Issue for determination


  1. On hearing learned counsel for the Plaintiffs’ Mr. Goodwin, and a quick perusal and consideration of his submissions, the Plaintiffs Order 16, r. 3 (2) (a) Statement and affidavit evidence they filed in support of their application, I formed a preliminary view that, the Plaintiffs met all but one of the requirements for a grant of leave for judicial review. That one requirement concerns the requirement for an applicant for judicial review to demonstrate having fully exhaustive all available remedies. Hence, the issue I reserved to determine was whether the Plaintiffs fully exhausted all the remedies available to them?

Relevant factual background


  1. The relevant factual background giving rise to these issues are identical or similar for each of the Plaintiffs but with some variation as to the position each Plaintiff occupied and their employer in the Malan Group of Companies.
  2. On 6 February 2023, the employer of each Plaintiff received a Notice of Cancellation of Work Permit dated 31 January 2023 from the Office of the Chief Migration Officer (CMO), Mr Stanis Hulahau (First Defendant) forcing each of the plaintiffs to leave the country. At no time were any of the Plaintiffs given prior notice of the reasons for the cancellation of their work permits, nor were they given an opportunity to respond to the cancellations. They were only provided with an Infringement Notice on or about the time of cancellation, through their employers. Each Plaintiff and their employers assert that there are not any grounds to cancel any of the work permits.
  3. Each of the Plaintiffs appealed against the decision of the CMO to the Minister for Immigration and Labour (Second Defendant) pursuant to Section 31(5) of the Employment Of Non-Citizens Act 2007 (EONCA). Each appeal was served on the Minister on 16 February 2023.
  4. The Plaintiffs claim, there has been no response from the Minister or his office within 28 days, prescribed by section 31 (7) of the EONCA. They further claim, in meantime, the cancellation of each the plaintiffs’ work permit has caused considerable disruption to the employment of each of them and consequently to business and operations of their employers, Pacific Helicopters Limited, Pacific Gardens Hotel which are part of the Malan Group of companies. New staff have had to be appointed to positions, and others have had to be designated new positions working from overseas.
  5. Further the Plaintiffs’ claim, Pacific Helicopters Limited is a significant airline company in Papua New Guinea with up to 10 helicopters serving a range of commercial clients including under contracts with Santos, Total, Oilmin (Exxon) and K92 Mining. It has several other related companies with operations in Papua New Guinea. The actions to terminate seven work permits of employees of Pacific Helicopters Limited and Pacific Gardens Hotel have arisen due to a commercial dispute that the companies have with a Singapore based company, Renton Pte Ltd, and is designed without basis to commercially damage the company in the market.
  6. Furthermore, the Plaintiffs claim, Pacific Helicopters Limited, Pacific Gardens Hotel, and their related companies in the Malan Group of Companies employ many Papua New Guinean citizens who have been trained and supervised on daily operations, particularly in the airline and hospitality sectors. The actions and inactions of the first and second defendants have further affected the national employees and put their future job security at risk.
  7. The Plaintiffs wish to have their work permits restored so that they can return to Papua New Guinea to work for Pacific Helicopters Limited and Pacific Gardens Hotel in a full capacity and so that Pacific Helicopters Limited and Pacific Gardens Hotel can be returned to full operational capacity, fulfilling their external work contract requirements.
  8. With these factual background in mind, I turn to the issue for determination, namely have the Plaintiffs fully exhausted remedies available to them before filing these proceeding.

Consideration


  1. Following the decisions of the CMO, the Plaintiffs lodged their respective appeals against those decisions with the Minister for Immigration and Labour (Minister), pursuant to s. 31 of the EONCA. The relevant part of the provision’s subs (7) reads:

“The Minister shall obtain the recommendation of the Secretary in respect of the appeal and consider the merits of the appeal and within 28 days of receipt of the appeal.”


  1. The Plaintiffs argue this to mean the Minister is obliged to decide on the appeal within 28 days of the receipt of the appeal. In my view however, the obligation is for the Minister to obtain a recommendation from the Secretary of the Department in respect of the appeal and for the Minister to consider the merits of the appeal. There is no clear obligation imposed on the Minister to come to a decision within 28 days of receiving an appeal.
  2. The principle of exhaustion of remedies is a fundamental aspect of administrative law, requiring applicants to pursue all available avenues of recourse before seeking intervention from the court. This principle ensures that administrative bodies are given the opportunity to rectify any potential errors or address grievances before resorting to judicial review. There are numerous decisions on this point from both the Supreme and the National Courts. In my decision in the matter of Kian Seng Lee v. Pundari, Minister for Foreign Affairs (2001) N2146, I discussed two Supreme Court decisions on point. The first of the two decisions was the decision in The Independence State of Papua New Guinea v. Kapal [1987] PNGLR 417. There, Kidu CJ and Woods J (as they then were), correctly stated the principle in these terms at page 421 of the judgement:

“One of the fundamental rules in relation to judicial review is the question as to whether the applicant for judicial review has exhausted other remedies provided by law, eg, statutory provisions for appeal. Generally, it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been exhausted.


This rule is subject to cases where facts and circumstances show that judicial review is more appropriate or convenient to do justice.”


  1. The second case was the decision in Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122. That decision adopted and applied the law as stated in the first case. In that case, one of the questions that arose was whether the existence of an alternative statutory remedy can oust the judicial review jurisdiction of the courts. The Supreme Court ruled that, the existence of an alternative remedy does not oust the inherent supervisory review jurisdiction of the court in the absence of any express words of the legislature taking away the judicial review jurisdiction of the court. However, as a general rule, the Supreme Court held that the judicial review jurisdiction would not be exercised readily where other remedies are available. Then upon a review of the relevant authorities, the Supreme Court set out the following as factors for consideration in cases where there exist a statutory review or appeal process:

“(a) The public policy considerations behind particular legislative enactments;


(b) The socio-political circumstances and aspirations of the country;


(c) The practicalities of the procedures for judicial review and statutory review such as speed of hearing; and


(d) Whether the matter depends on some particular or technical knowledge which is more readily available to the statutory review body.”


  1. In the case before the Supreme Court, the Court held that, the legislative intent behind the Employment of Non-Citizens Act (Chapter No. 374) was to oversee the employment or continued employment, cancellation, and termination of employment of non-citizens, through administrative structures and remedies. That required the available procedures and remedies be exhausted first before an application for judicial review can be allowed.
  2. In the words of the Supreme Court per Amet J at page 127 with whom the Deputy Chief Justice Sir Mari Kapi and Cory J (as the then were) agreed said, in relation to coming within the exception to the general rule that, all available remedies be exhausted:

“I do not consider that any exceptional circumstances exist in this case not to adhere to this general rule. The appeal is provided for within fourteen (14) days. Termination is also required to be effected within fourteen (14) days of notification of cancellation of the work permit. I consider that even appeal to the Minister is not able to be disposed of within 14 days or by the end of the 14 days period, then an application for stay of enforcement of termination can be made to the court. No loss would be suffered in these circumstances. If the appeal is unsuccessful, then the aggrieved person as a recourse to superior courts. His or her rights are ably protected.”

Application of the law to the Facts

  1. Applying the law as stated above, I find as did the Supreme Court found in Kekedo v. Burns Philip (supra), the legislation under consideration, the EONCA was intended to control and to regulate the employment of non-citizens. Parliament having considered all things provided for the way in which decisions made by officers of the department could be reviewed by the administrative head before it could go to the courts for review under 155(2)(b) of the Constitution.
  2. Upon careful examination of the facts and submissions presented, it is evident that the Plaintiffs have not fulfilled the requirement of exhausting all available remedies. The decision maker, in this instance the Minister, has not yet rendered a final decision, and as such, the Plaintiffs’ recourse lies in seeking appropriate orders compelling the decision maker to make a timely determination rather than pursuing judicial review prematurely. The court emphasizes that judicial review is an exceptional remedy, to be employed only when all other avenues have been exhausted, and it is clear that the decision maker’s actions or inactions have significantly prejudiced the applicants’ rights. The Plaintiffs have not made a case under the exception to the need to exhaust all available remedies before going for judicial review. The outlining of the following learned counsel’s submissions for the Plaintiffs is the closest we might get to:

“9. The cancellation of each Plaintiffs’ work permit has caused considerable disruption to the employment of each Plaintiff, and to business and operations of their employers, Pacific Helicopters Limited and Pacific Gardens Hotel, businesses in the Malan Group of companies. New staff have had to be appointed to positions, and others have had to be designated new positions working from overseas.


  1. In particular, Pacific Helicopters Limited is a significant airline company in Papua New Guinea with up to 10 helicopters serving a range of commercial clients including under contracts with Santos, Total, Oilmin (Exxon) and K92 Mining. It has a number of other related companies with operations in Papua New Guinea. The actions to terminate seven work permits of employees of Pacific Helicopters Limited and Pacific Gardens Hotel have arisen due to a commercial dispute that the companies have with a Singapore based company, Renton Pte Ltd, and is designed without basis to commercially damage the company in the market.
  2. At no time were any of the Plaintiffs given prior notice of the reasons for the cancellation of their work permits, nor were they given an opportunity to respond to the cancellations. They were only provided with an Infringement Notice on or about the time of cancellation, through their employers. Each Plaintiff and their employers assert that there are not any grounds to cancel any of the work permits.
  3. The Plaintiffs wish to have their work permits restored so that they can return to Papua New Guinea to work for Pacific Helicopters Limited and Pacific Gardens Hotel in a full capacity and so that Pacific Helicopters Limited and Pacific Gardens Hotel can be returned to full operational capacity, fulfilling their external work contract requirements.
  4. Pacific Helicopters Limited, Pacific Gardens Hotel, and their related companies in the Malan Group of Companies employ many Papua New Guinean citizens whom have been trained and supervised on daily operations, particularly in the airline and hospitality sectors. The actions and inactions of the First and Second Defendants have further affected these national employees and put their future job security at risk.”
  5. None of the Plaintiffs’ employer companies, Pacific Helicopters Limited, Pacific Gardens Hotel, and or their related companies in the Malan Group of Companies are named as parties to this proceeding. Most importantly, there is no affidavit evidence from any of these companies deposing to the relevant facts which forms the basis of these statements. In any case, nothing is said about the Plaintiffs themselves that places, their case within the ambit of the exception to the requirement to exhaust available remedies. Hence, in the absences of any evidence and submission to the contrary, the observations made by the Supreme Court in Kekedo v. Burns Philip (supra) equally applies here.
  6. Considering these circumstances, I am of the view that, it is premature for the court to consider the merits of the Plaintiffs’ claims or engage in judicial review. The Plaintiffs must first seek the necessary orders compelling the Minister to make a final determination on the matter. Once the Minister has rendered a decision, the applicant may then pursue appropriate legal remedies, including seeking leave for judicial review if necessary.
  7. Accordingly, the application for leave for judicial review is declined at this stage on the grounds of failure to exhaust available remedies. Consequently, the Court orders a dismissal of the proceedings with no order as to costs.

________________________________________________________________

Goodwin Bidar Nutley Lawyers: Lawyers for Plaintiffs

No Appearance: For the Defendants


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