N10546
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 73 OF 2023(IECMS)

MASUM MOZUMDER
Plaintiff

V
HON. JOHN ROSSO DEPUTY PRIME MINISTER & MINISTER FOR LABOUR AND IMMIGRATION
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2023: 22nd September, 18th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Determination of Refugee Status – Decision of First Defendant to Deport Applicant Plaintiff – Decision In Breach of Court Order – Court Order Grant Refugee Status to Plaintiff within 30 days – Deportation Order By First Defendant – Whether Judicial Review Appropriate Mode of Proceedings – Enforcement of Orders Obtained – Alien – Executive Act As Opposed to Administrative Act – Principles of Natural Justice – Refugee Declared – Locus Standi– Arguable Cause – Delay – Internal Process – Leave Granted – Cost follow event.

Cases Cited:

District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Vakinap v Kambanei [2004] PGNC 264; N3094
Nining v Mann [2013] PGNC 153; N5338 
Eu v Rosso & Ors [2023] PGSC 63; SC2401 
Valentine v Somare (No 2) [1989] PGNCLR 241
Premdas v The State [1979] PNGLR 329
Guggemos v Acting Minister of Foreign Affairs [1987] PNGLR 352 

Counsel:

S. Wanis, for Plaintiff
H. Wangi, for Defendant
RULING
18th October 2023.
1.	MIVIRI, J: This is the ruling on the originating summons of the Plaintiff applying seeking an Order pursuant to Order 16 Rule 3 (1) and (2) of the National Court Rules for leave to be granted to review:

(a)	The decision of the First Defendant made on the 25th May 2023 and delivered to the Plaintiff’s Lawyers on 04th July 2023 be judicially reviewed as that decision was made in breach of the Court Order of 28th April 2023, as;

(i)	The Court Order of 28th April 2023 mandatorily compelled the First Defendant to grant refugee status to the Plaintiff within 30 days from the date of the Court Order but instead the first Defendant, on 25th May 2023, refused to grant the refugee status to the Plaintiff and ordered that the Plaintiff to be deported.

(ii)	The decision made by the First defendant was not delivered to the Plaintiff until the 04th July 2023 which is outside the court Ordered 30 days period.

(b)	The decision of the First Defendant made on the 25th of May 2023 is contrary to International Law, particularly Articles 32 (1) and 33 (1) of the 1951 convention Relating to the Status of Refugees.

(c)	Any other orders this Honourable Court deems appropriate.

(d)	Time be abridged.

2.	The plaintiff apart from the statement pursuant to Order 16 rule 3 (2) (a) of the National Court Rules also relies on his own affidavit sworn of the 10th July 2023 filed the 11th July 2023. He has also filed a supplementary affidavit sworn of the 25th July 2023 filed also of that date. And further the affidavit in support of Westly Nukundi Nukundj. 

3.	With that evidence of fundamental importance is annexure “B” of the affidavit in support Judgement of this Court in OS (JR) No 3 of 2023 (IECMS) Masum Mosumder v Hon John Rosso Minister for Labour & Immigration and The Independent State of Papua New Guinea [2023] N10218. That is a judicial review proceeding instituted by the plaintiff here seeking mandamus to compel the first defendant to consider and determine his application to be a refugee in Papua New Guinea pursuant to section 15A of the Migration Act 1978. It culminated in Mandamus that was issued against the Minister of Labour & Immigration, the First Defendant ordered to make a determination pursuant to section 15A of the Migration Act 1978, concerning the application of the Applicant, Masum Mozumder to be granted refugee status in Papua New Guinea within thirty (30) days from today the 28th of April 2023. In that order the first defendant was to do that within 30 days counting from the issue of the orders 28th April 2023. Which would have lapsed on the 10th May 2023. Determination would have been made by this date of the fact that the applicant was of refugee status. 

4.	That was an order issued upon the First defendant to comply and bring that fruit to the notice of the Court that it had been discharged in those terms. The applicant was accordingly determined as a refugee by his status after consideration of all his material. But that decision was not made because on the 25th May 2023 the First Defendant made a decision not to issue refugee status to the applicant but to order his deportation. Which is not the same as determining his status as a refugee. There is therefore breach of the orders of the 28th April 2023 issued by this Court. And rightly the applicant should issue contempt proceedings of the 26th June 2023 on the First Defendant, annexure “C” basing on the materials in annexure “D”. Because the current matter derives from there and should follow in that manner. It cannot be the subject a new as is the case here. What is needed is to enforce the orders that were made against the first defendant for contempt as already filed. The evidence of the defiance of the Court Order of the 28th April 2023 is Notice of Decision for Refugee Status Determination dated 25th May 2023 which is signed by the first defendant disapproving the applicant’s status and notifying Direction for Refugee Determination and direction to leave the Country.

5.	That is in the following terms: “This is to notify you of the final decision with regards to your application for refugee determination, pursuant to section 15A of the Migration Act 1978 (the Act).

6.	After careful consideration of all the information you have provided, I am satisfied that you do not meet the relevant criteria to be recognized as a refugee under the law of the Independent State of Papua New Guinea. I am satisfied that you meet subsection 14 (1) of the Migration Regulation 1979 (the regulations).

7.	The reason for this decision is accordance with section 15(2) of the Regulation attached to this letter. Please note under section 15(4) of the Regulation, the Minister must reopen a decision for further consideration after his decision has been made. 

8.	By virtue of this decision, the exemption under section 20 of the Act which permitted you to remain in the Country without an entry permit has ceased. You are therefore now unlawfully in Papua New Guinea. I have signed orders for your removal from the Country and your detention until you depart, pursuant to section 12 and 13 of the Act. Copies of this Orders are attached to this notice. 

9.	You are therefore required to depart the Country as soon as possible to your country of citizenship or other country which will accept you; however, I encourage you to consider the option of voluntary departure. The removal and detention Orders I signed explicitly allow for these to be suspended should you elect to take up this option. Officers of the Immigration and Citizenship Authority will be available to discuss voluntary option with you, and to assist.

10.	Should you fail to depart voluntarily, removal action will be enforced. Please keep a copy of this letter in a safe place for future purposes.

11.	Yours sincerely, Hon John Rosso Deputy Prime Minister and Minister for Labour & Immigration.”

12.	This determination by the Minister fulfills the order of the Court. It is late because 30 days would have lapsed on the 10th May 2023. And therefore, it makes that executive decision pursuant to that Court order the Minister has taken the pain to give honour to the order of Court. But he has been late in so furnishing. In being late has he prejudiced the applicant. Section 15A simply says, The Minister may determine a non-citizen to be a refugee for the purposes of this Act. And in this regard no doubt would involve the matters that are deposed to in the affidavit of the applicant filed set out above. There are two affidavits that the applicant has sworn personally. Relevantly he deposes that he was granted refugee status by the previous Minister Hon Westley Nukundi Nukunj. Who in turn has also filed affidavit particulars set out above approving the applicant status of refugee annexure “C” to his affidavit. And that was of the 28th October 2020. That determination of his status has come to the knowledge of the first defendant but if it has, he has now reconsidered that determination.

13.	And it is his determination which he says is based on section 14 (1) of the Migration Regulation 1979 (the regulations). Examining the Migration Regulations 1979 there is no amendment, and the regulations last section is section 13 which is offences and penalties. There is no section 14 of the Regulations in the terms set out in above in the Minister’s determination. And under section 20 the exemptions that were given the applicant has now been withdrawn. He now reverts to being a person without those exemptions. Here also I note section 19 no appeal against the decision of the Minister. And the decision on record is of the 28th October 2020 by then Minister Honourable Westley Nukundi Nukundj MP. “Your application for refugee status has been considered and I am pleased to advice that it was successful. I am satisfied that you meet the relevant criteria to be recognized as a refugee under the law of the Independent State of Papua New Guinea (PNG). The reasons for this decision in accordance with section 15(2) of the Migration Regulation 1979 are attached to this letter.

14.	You will receive information from the officials about your rights and obligations and about assistance that may be provided to you for an identity document and visa, and to prepare for life in PNG.

15.	Should you choose not to remain in PNG, you may receive assistance to voluntarily return to your country of origin or another country where you have a right of residence within 12 months of receiving this determination. After that time all travel from PNG will be at your own costs.

16.	Please keep a copy of this letter in a safe place for future purposes. Yours sincerely Honourable Westley Nukundi Nukundj MP Minister for Immigration and Border Security 28th October 2020.

17.	The decision has not been appealed nor has it changed by the assertions of the First Defendant set out above. He is functus officio that he cannot discharge a power that has already been discharged by his predecessor. That determination has been made and stands in law. It is not in fulfillment of an order by this Court but by due discharge of office held by then Minister and pursuant to the provisions in particular section 15A determination. 

18.	There is clearly locus standi because the applicant is a refugee who has been so declared by Minister Honourable Westley Nukundi Nukundj MP Minister for Immigration and Border Security 28th October 2020. That set his status in law clear. And giving him basis to challenge the decision now made of the first defendant in law. He cannot be deported now that his status is clear, a refugee.

19.	And he has arguable basis because the Minister’s duties have been fulfilled and discharged in his case. There cannot be a revisit of that initial decision because there is no power to do that. The last section of the Regulation of the Migration Act is section 13 which is offences and penalties. There is no basis for the decision of the First defendant and it is an arguable basis for prima facie demonstrated to call this matter for review.

20.	Delay is not in view given all the facts circumstances and the law set out above. This Court has decided with an order emanating which was already the subject of a determination by the Minister of the 28th October 2020. That is now before the Court on record. It means that what was the subject of the order has been fulfilled even before the order itself. It discharges that order in my view. It establishes the locus standie of the applicant as a refugee declared by the office of the Minister for Immigration and Border security. Justice must be accorded its day where it is due in the matter. Because the applicant is no longer the immigrant, he was prior. He is now a refugee by that decision of the Minister. He is originally from Bangladesh from Cumilla District, He came to Papua New Guinea in 2015 and has lived here for 8 years now. He left his Country because his father was a Politian and member of the Opposition Party against the current woman Prime Minister. He was put to jail (8) eight times in his own country. 

21.	Judicial review is about the process that is taken to arrive at a decision and when there is error in the process taken, and certiorari lies: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. There is clear error in the procedure because there is no section 14 under the Migration Regulations 1979. And the decision to deport is against the determination already made of the 28th October 2020 by Minister Honourable Westley Nukundi Nukundj MP Minister for Immigration and Border Security. It cannot be enforced to deport the applicant. He is a refugee and clearly process has not been accorded to arrive in the deportation order. It is an error on the face of the record and has not been arrived at in compliance of Statute or Law. It simply cannot stand to exert the decision made there. Because Declaration is open in favour of the applicant given. Coupled with Certiorari that would lie in favour of the applicant. It would follow Nining v Mann [2013] PGNC 153; N5338 (30 August 2013) that the decision at first instance would be brought into Court and confirmed as correct in law and binding forthwith on the First defendant. Because it is made ultra vires Eu v Rosso & Ors [2023] PGSC 63; SC2401 (2 June 2023) and Nining (supra).
 
22.	This is not the situation that was observed by this Court in where the applicant was the holder of an entry permit that was cancelled by the Minister and his deportation was ordered: Valentine v Somare (No 2) [1988-89] PNGLR 241; or Premdas v The State [1979] PNGLR 329. Both no longer had entry permits, here is a refuge status declared so he could see immigration for appropriate identity documents. And therefore, leave would lie in his case given all above. Because he is not a prohibited immigrant and therefore does not accord locus standi to move the Court for judicial review: Guggemos v Acting Minister of Foreign Affairs [1987] PNGLR 352. He is a refugee now declared 28th October 2020.

23.	And by article 32 of the Convention relating to the Status of Refugees adopted 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950 Entry into force: 22 April 1954, in accordance with article 43 adopted he will not be expelled except on grounds of national Security. And that is not the subject by the defendants before me. And he will be allowed due process pursuant. He deposes a rebuttable presumption that his life is threatened, and he was escaping therefore and has been here in Papua New Guinea since 2015, culminating now to 8 years. And article 33 of that convention set out above seeks that due process be availed before expulsion. He will be accorded leave for Judicial review pursuant. Accordingly, I grant Leave for Judicial review to the applicant as pleaded.

24.	This Court also made orders staying and restraining deportation as of the 06th July 2023 which has not been varied. That is current and will remain during this proceeding against and within the terms as there ordered. 

25.	The formal orders of the Court are:

(i)	Leave is granted for Judicial review.

(ii)	Plaintiff will file and serve the substantive notice of motion by or before Friday 03rd November 2023.

(iii)	The matter will be called for directions on Monday 06th November 2023 at 9.30am.

(iv)	The orders of this Court of the 06th July 2023 remain in the terms as ordered.

(v)	Costs will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Solomon Wanis Lawyers: Lawyers for the Plaintiff/Applicant		
Office of the Solicitor Generals: Lawyers for First Defendants