Mozumder v Rosso [2023] PGNC 395; N10545 (2 November 2023)

N10545

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 173 OF 2023 (IECMS)

BETWEEN:
MASUM MOZUMDER
Plaintiff

V

HON. JOHN ROSSO
Defendant

Waigani: Anis J
2023: 17^th October & 2^nd November

NOTICE OF MOTION – Inter-partes hearing of ex parte orders made ex parte to grant restraining orders – considerations – ruling

Cases Cited:
Masum Mozumder v. Hon. John Rosso and the State (2023) N10218
Employees Federation of PNG v. PNG Waterside Workers Union (1982) N392
Golobadana No 35 Ltd v. Bank South Pacific Ltd (2002) N2309
Collector of Taxes v. Bougainville Copper Ltd (2007) SC853

Counsel:
S. Wanis, for the Plaintiff
M. Koimo, for the Defendant

RULING

2^nd November, 2023

1. ANIS J: This was an inter-partes hearing held on 18 October 2023, on whether I should extend 2 ex parte restraining orders that were made by myself and the Deputy Chief Justice on 2 separate occasions. I reserved my ruling thereafter to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The plaintiff is from Cumilla District, Bangladesh. He claims that he fled his country from political persecution. He arrived by boat near Darwin, Australia where he surrendered to the Australian immigration authorities and sought asylum. He was later transported by air to Port Moresby where he was placed under the care of the International Organization for Migration (IOM), which is an agency of the United Nations.

4. In Papua New Guinea (PNG), the plaintiff applied for refugee status under s. 15A of the Migration Act 1978 (M Act). The provision reads: The Minister may determine a non-citizen to be a refugee for the purposes of this Act. The plaintiff’s refugee status was recommended for approval by the Immigration & Citizenship Authority (ICA). On 14 October 2020, the ICA forwarded its recommendation in a draft instrument to the responsible Minister to make a decision. The plaintiff waited for a long while without receiving a formal response or advice to his application.

5. Aggrieved by the delay, he filed a judicial review proceeding. The proceeding is described as OS(JR) No. 173 of 2023, Masum Mozumder v. Hon. John Rosso and the State (2023) N10218 (JR proceeding). He sought as his main relief a (writ of) Mandamus to compel the first defendant therein, which is the current defendant herein, to consider and determine his application for a refugee status in PNG pursuant to s.15A of the M Act.

6. On 28 April 2023, in an unreported decision in the JR proceeding (Masum Mozumder v. Hon. John Rosso and the State (2023) N10218), Dingake J granted the substantive relief. The main terms of the final order (Court Order of 28 April) reads:

1. An order for Mandamus is hereby issued against the Minister of Labour and Immigration. The First Defendant is 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 28^th of April, 2023.
   

7. But then on 26 June 2023, the plaintiff filed this proceeding. He seeks various declaratory orders including an order for contempt of court against the defendant. The plaintiff claims, amongst others, that the defendant breached the Court Order of 28 April. Soon after filing this proceeding, the plaintiff applied for interim restraining orders. The matter returned before this Court and on 6 July 2023, I granted the following exparte orders (First ex parte orders):

1. The requirement of service is dispensed with.
   
2. The Defendant or any officer of the Immigration & Citizenship Authority or other agents or servants of the State, pending the determination of this proceeding or otherwise until further ordered by the court, are restrained from deporting, or harassing the Plaintiff/Applicant.
   
3. The Applicant shall immediately serve the sealed Copy of this Order and the application documents upon the defendant.
   
4. The matter shall return for inter-parte hearing at 1:30pm on Monday the 31^st of July 2023.

......”

8. Before the First ex parte orders could be heard inter-partes, the defendant and his servants and agents, according to the plaintiff, tried to deport him from the country. The plaintiff was arrested on 15 August 2023 and detained at the Bomana detention facility where he was kept overnight. The defendant had argued, or it seems that the basis for his action was, that he had rejected the plaintiff’s application for refugee status under s.15A on 25 May 2023.

9. The plaintiff, through counsel and on an urgent basis, made an oral application before the Deputy Chief Justice, Justice Kandakasi, on 16 August 2023. Ex parte orders (Second ex parte orders) were granted by His Honour as follows:

“1. The requirements of filling and service is dispensed with.

2. The Chief Migration Officer Mr. Stanis Hulahau is hereby restrained from Deporting the Plaintiff (Masum Mozumder) forthwith
3. The Chief Migration Officer Mr. Stanis Hulahau shall bring back the Plaintiff within 3 days from the date of this Order if the Plaintiff was deported already.
4. The Chief Migration Officer Mr. Stanis Hulahau shall come to this court on the next return date and show cause as to why he failed to comply with the Court Orders on 6^th July 2023 made by this court in this proceeding.
5. All Migration Officers or Police officers are hereby restrained from Deporting the Plaintiff (Masum Mozumder) forthwith.
6. All Airline Companies and aviation carriers operating out of or using the Jacksons International Terminal-Port Moresby are hereby restrained from issuing tickets or boarding passes to the Plaintiff-Masum Mozumder.
7. The Plaintiff-Masum Mozumder shall be immediately released from any form of custody or detention forthwith.
8. The matter shall return for inter-parte hearing at 1:30pm on the 22^nd of September 2023.
9. Cost shall be in the cause.
10. Time for entry of these orders is abridged to the time of settlement by the Registrar which shall forthwith take place.”
    

PRESENT HEARING

10. What returns before this Court is the inter-partes hearing of the First ex parte orders. However, by consensus of both counsel, it was agreed that the Court should treat the inter-partes hearing as a hearing of both the First and Second ex parte orders.

11. I will proceed on that premise.

LAW

12. The criteria for granting interim injunction or restraining orders are settled in this jurisdiction. See cases: Employees Federation of PNG v. PNG Waterside Workers Union (1982) N392, Golobadana No 35 Ltd v. Bank South Pacific Ltd (2002) N2309, and Collector of Taxes v. Bougainville Copper Ltd (2007) SC853.

13. The main criteria are:

• Where there are serious questions to be tried or an arguable case;
• Has the Plaintiff given an undertaking as to damages?
• Whether damages would be an adequate remedy?
• Does the balance of convenience favour the granting of the interim orders?
  

CONSIDERATION

14. Let me first address the main contested criteria, that is, undertaking as to damages.

15. No undertaking as to damages was given by the plaintiff. Counsel submits that the plaintiff is not from this country but is here to seek refugee status on the premise that he is fleeing persecution from his country. Counsel submits that the plaintiff is a destitute person; that he does not have money or wealth where he would be in a position to repay thus an undertaking is not applicable or relevant in this case. Counsel urged the Court to exercise its powers under s.155(4) of the Constitution.

16. The defendant submits that because no undertaking has been given, the criteria has not been met and therefore should be taken into account by the Court. The defendant submits that the restraining orders should therefore be set aside on that basis.

17. I note the submissions of the parties.

18. I find this criteria to be inapplicable. The plaintiff’s legal status in the country as a refugee is in question. It may have been legally declined by the defendant but that is now being challenged it seems, in a separate judicial review proceeding, namely, OS(JR) 73 of 2023 (JR 73). In that proceeding, the plaintiff is seeking to review the defendant’s recent decision made on 25 May 2023 (where he purportedly rejected the plaintiff’s refugee status application) as well as the decision of the former Minister also made in relation to the refugee status of the plaintiff. The plaintiff is a not a citizen of this country but rather is a citizen of Bangladesh. When I take all these factors into account, I note that the plaintiff is in fact incapable of complying with this criteria. So, and in my view, it is not a question of whether he has given an undertaking or whether he has failed to do so, but rather, it is a question of whether he has any capacity to give such an undertaking, and the answer to that is in the negative.

19. I find this criteria inapplicable in this case.

20. The next question I have is this. Does the plaintiff have an arguable or meritorious case? This criteria was not challenged in any substantive manner by the defendant. Given that, I note the submissions of the plaintiff. I had, premised on the plaintiff’s submission at the ex parte hearing, granted the orders because I was satisfied that there was an arguable case to answer. However, as this is an inter-partes hearing, I should consider the matter on its merit having had the benefit of considering the evidence of both parties.

21. I refer to the Originating Summons (filed 26 June 2023) of the Plaintiff (the OS). Relief 1 seeks a declaration that the Court Order of 21 April required the defendant to make a positive determination (under s.15A of the M Act) in regard to the plaintiff’s refugee status application within 30 days from 28 April 2023. Relief 2 and 3 seek declarations that the defendant did not make the positive determination (i.e., grant of refugee status) in favour of the plaintiff and within the 30-day period as ordered by the Court in the JR proceedings or as per the Court Order of 21 April. Relief 4, 5 and 6 seek declarations that are consequential to relief 1, 2 and 3. They seek declarations that the defendant had breached the Court Order of 21 April and therefore should be held liable for contempt of court, and that the Court should, upon finding the defendant guilty, impose on him a prison term, or a fine, or both.

22. When I consider the plaintiff’s own evidence, that is, Annexure A to his affidavit filed 4 July 2023, he attaches a copy of the defendant’s decision which is titled “NOTICE OF DECISION FOR REFUGEE STATUS DETERMINATON”. The notice is dated 25 May 2023. On its face value, it appears to be in compliant with the Court Order of 21 April in that the decision appears to have been made within 30 days as ordered.

23. If I was to decide on the said claim alone, I would have found that there was no arguable case. However, the next argument by the plaintiff under this criteria, is in regard to what the orders actually mean or convey. The plaintiff, as stated above, argues that the Court Order of 21 April orders or commands the defendant to affirm or rule positively and grant the plaintiff his refugee status. The plaintiff submits that the Court Order of 21 April did not give the defendant any other option including the option to decline or rule in the negative for the grant of the refugee status of the plaintiff. The defendant, however, strenuously disputes the plaintiff’s interpretation of the Court Order of 21 April. He submits that the Court Order of 21 April simply ordered him to determine the application pursuant to his powers under s.15A of the M Act, thus he had acted accordingly and made his determination where he rejected the plaintiff’s application.

24. I may have preliminary views on that, however, given that it is raised as a substantive matter, I will reserve my views on that for trial. All I can say now is that on the face of the Court Order of 21 April, and from a lay man’s point of view, it is arguable whether the Order is clear, ambiguous or could be easily misconceived. These would have to be considered and argued at a later date. I also note that clarity of a Court Order is a relevant prerequisite in contempt proceedings so obviously proper arguments would have to be heard on that at the relevant time.

25. I therefore find that there appears to be an arguable case. I find the third criteria to favour the plaintiff.

26. As regards criteria whether damages may be an appropriate remedy and the balance of convenience, I find them to favour the plaintiff. If the interim injunction is lifted or set-aside, there is no guarantee that the plaintiff will not be deported. The defendant and his agents and servants have already attempted to deport the plaintiff, as the evidence suggests, and as a result, the Second exparte orders were sought and obtained by the plaintiff, that is, to protect him from detention and harassment by the defendant and his servants and agents. Further, irreparable damage may be committed if I set-aside the restraining orders. It is most probable, premised on the evidence that is adduced herein, that the plaintiff may undergo further harassments and detention. He may not be afforded with the full protection of the law to speak to his lawyer or be duly heard in Court. And if the plaintiff is deported, then he shall be denied his right to be heard in this proceeding.

SUMMARY

27. In summary, I will allow the First and Second ex parte orders to remain with some modifications.

CAUTION/WARNING

28. I must caution the defendant and his servants and agents including this person, the Chief Migration Officer STANIS HULAHAU, with this stern warning, that the moment the plaintiff is detained against his will and in defiance with Court Orders by either STANIS HULAHAU or his officers including the defendant Hon. John Rosso or whoever shall be the Minister responsible for Labour and Immigration, a further order may be issued, upon notice to the Court, for their immediate arrest and detention at the police cells to be brought to the Court to answer why they should not all be held liable for contempt of Court.

29. I hope that the counsel for the defendant take heed and pass this stern warning to the defendant and Stanis Hulahau. I will also make an order that the lawyer for the defendant shall immediately serve a copy of this judgment on Stanis Hulahau and file an affidavit in that regard before or by a certain date to ensure that everyone is absolutely clear of this warning.

30. I refer to term 4 of the Second ex parte order. It required Stanis Hulahau to appear in Court and provide an explanation as to why he failed to comply with the terms of the First ex parte order when he detained the plaintiff on 15 August 2023 with the assistance of police. Mr. Hulahau filed an affidavit on 22 September 2023 to explain his actions and the actions of his officers. The response appears unsatisfactory on the face of it. However, I do not have sufficient information to decide whether formal charges should be laid against Mr Hulahau. The way forward therefore is this. Premised on Mr Hulahau’s response, the plaintiff is at liberty to file formal contempt proceeding or application, if he wishes, premised on advice from his lawyer or premised on further investigation that may have to be conducted beforehand.

COST

31. A cost order with this type of application is discretionary. I will order cost to follow the event, on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

32. I make the following orders:

1. The Defendant or any officer of the Immigration & Citizenship Authority or other agents or servants of the State including Police, are restrained from deporting or harassing the Plaintiff Masum Mozumder until the final determination of this proceeding.
   
2. The Chief Migration Officer Stanis Hulahau is restrained from deporting the Plaintiff Masum Mozumder forthwith until the final determination of this proceeding.
   
3. All airline companies and aviation carriers operating out of or using the Jacksons International Terminal-Port Moresby or elsewhere in PNG, including vessels or ships, are restrained from issuing tickets or boarding passes to the Plaintiff-Masum Mozumder or from permitting the Plaintiff to travel out of Papua New Guinea until the final determination of this proceeding.
   
4. The Defendant’s counsel shall immediately serve a copy of this judgment on the Chief Migration Officer Stanis Hulahau to observe and, he shall file an affidavit in that regard before or by 8 November 2023.
   
5. The Plaintiff shall serve a sealed copy of this Court Order on all those persons or entities that are affected by the Court Order including airlines and vessel operators in PNG.
   
6. The Defendant shall pay the plaintiff’s cost of the application on a party/party basis to be taxed if not agreed.
   
7. Time for entry of these orders is abridged to the date and time of settlement by the Deputy Registrar of the National Court which shall forthwith take place.
   

The Court orders accordingly

________________________________________________________________
Solomon Wanis Lawyers: Lawyers for the Plaintiff/Applicant
Kipes Law: Lawyers for the Respondents