Shields v Cornelius [2025] PGNC 38; N11161 (28 February 2025)

N11161

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO 318 OF 2024

DOUGLAS ALAN SHIELDS
First Plaintiff

RAMONA MAY SHIELDS
Second Plaintiff

JONATHAN NEAL TAYLOR
Third Plaintiff

ARMANCE ELAINE TAYLOR
Fourth Plaintiff

CHRISTINE RENEE McCASLAND
Fifth Plaintiff

ROGER BRYAN McCASLAND
Sixth Plaintiff

V

ROY CORNELIUS, COMPLIANCE & ENFORCEMENT OFFICER
First Defendant

DENNIS BADI, ACTING CHIEF MIGRATION OFFICER
Second Defendant

WELLINGTON NAVASIVU, CHIEF MIGRATION OFFICER
Third Defendant

THE HONOURABLE JOHN ROSSO MP,
MINISTER FOR IMMIGRATION
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

WAIGANI: CANNINGS J
20, 28 FEBRUARY 2025

IMMIGRATION – non-citizens – entry permits – direction to leave country – whether entry permit voided – whether senior officer of Immigration and Citizenship Service Authority has power to direct a non-citizen to leave the country.

PRACTICE AND PROCEDURE – proceedings commenced by originating summons challenging legality of directions to non-citizens to leave the country – whether any requirement to disclose a cause of action or to plead jurisdictional basis of relief sought – whether abuse of process.

The plaintiffs are six non-citizens who had been living and working in Papua New Guinea as missionaries. Each was the holder of an entry permit and a work permit. They were each, without prior notice, issued a notice by the second defendant, a senior officer of the Immigration and Citizenship Service Authority (ICSA), directing them to “voluntarily leave Papua New Guinea immediately within seven days” and surrender their passports and provide their confirmed outbound travel bookings. The first and second plaintiffs were at Jackson’s Airport, Port Moresby, preparing to leave the country on furlough leave, when they were prevented from leaving and had their passports confiscated and requested to attend a meeting to facilitate their exit from the country. All plaintiffs were aggrieved by the actions of the second defendant and other officers of the ICSA. They commenced proceedings by originating summons seeking declarations that the directions to leave the country issued by the second defendant were “invalid, null and void and of non-effect” [sic] and that the confiscation of the first and second plaintiffs’ passports was unlawful. The first to fourth defendants (senior officers of the ICSA and the Minister for Immigration) argued that the proceedings ought to be summarily dismissed for failure to disclose a cause of action and plead the jurisdictional basis of the relief sought and being frivolous, vexatious and an abuse of process. They further argued that the directions to leave the country were validly issued as the company that had been their employer was deregistered, so their entry permits were automatically “voided” and their presence in the country was unlawful. The fifth defendant was the State, which generally agreed with the plaintiffs’ position regarding the invalidity of the directions. The Court identified four issues for determination: (1) Should the proceedings be summarily dismissed? (2) Were the passports of the first and second plaintiffs lawfully confiscated? (3) Were the directions to leave the country validly issued? (4) What orders should the Court make?

Held

(1) The originating summons was drafted in accordance with the National Court Rules and adequately disclosed a cause of action. There was no requirement to plead the jurisdictional basis of the relief sought. The proceedings were neither frivolous nor vexatious. Though the proceedings might have been commenced by an application for leave for judicial review under Order 16 of the National Court Rules, it was not necessary to invoke Order 16 as no prerogative relief was sought. Though only declarations were sought and the plaintiffs did not claim consequential relief such as damages and they had complied with the directions and left the country, the case was not a futile exercise as it raised serious issues as to the lawfulness of actions of officers of the ICSA and has a direct bearing on whether the plaintiffs will be able to re-enter PNG and resume their lives. The proceedings were not summarily dismissed.

(2) There is no general power vested in any officer of the ICA under the Migration Act or any other law to confiscate any person’s passport. Confiscation of the passports of the first and second plaintiffs was unlawful.

(3) No officer of the ICSA is authorised by the Migration Act or any other law to direct a non-citizen who is the holder of an entry permit to leave the country. The power to order removal from the country of a non-citizen is vested exclusively in the Minister under s 12 of the Migration Act. The directions issued to the plaintiffs by the second defendant had no statutory basis and were contrary to the principles of natural justice, vague and contradictory and not based on proper legal grounds.

(4) Declarations granted: that the confiscation of the first and second plaintiffs’ passports was unlawful and that the directions issued by the second defendant were invalid, null and void.

Cases cited

Botha v Yaki [1999] PNGLR 490
The State v Central Provincial Government (2009) SC977
Toap v The State [2004] 1 PNGLR 25
Toap v The State [2004] 2 PNGLR 191
Tomscoll v Mataio [2016] 2 PNGLR 178
Wabia v BP Exploration Co Ltd [1998] PNGLR 8

Counsel

P Tamutai for the plaintiffs
G Gaudi for the first to fourth defendants
B Samiat for the fifth defendant

1. CANNINGS J: The plaintiffs are six American citizens who have been living and working in Papua New Guinea in the Highlands region as missionaries for various stints since the 1990s. They are each connected with and work for the Bible Missionary Church. Each is the holder of an entry permit, issued in the “Special Exemption Religious Worker category, and a work permit. They are three married couples: Douglas Alan Shields and Ramona May Shields (first and second plaintiffs), Jonathan Neal Taylor and Armance Elaine Taylor (third and fourth plaintiffs) and Christine Renee McCasland and Roger Bryan McCasland (fifth and sixth plaintiffs).

2. In November 2024 they were each, without prior notice, issued a notice by the second defendant, Dennis Badi, acting Deputy Chief Migration Officer, a senior officer of the Immigration and Citizenship Service Authority (ICSA), which directed them to “voluntarily leave Papua New Guinea immediately within seven days” and surrender their passports and provide their confirmed outbound travel bookings.

3. The notices, dated 7 November 2024, under the letterhead of the ICSA, were issued in the same terms, save for the numbers of the plaintiffs’ entry permits and work permits. The notices stated:

Dear [name of plaintiff provided],

SUBJECT: DIRECTION TO LEAVE THE COUNTRY NOTICE

This notice serves to inform you that your Special Exemption Religious Worker entry permit number: [specific 11-digit number provided] and your work permit number: [specific 8-digit number provided] has been voided as of the 15^th of October 2024 in line with the deregistration of your company by the Registrar of Companies.

After thorough assessment by the PNG ICSA Compliance Branch it has been established that your presence in the country is unlawful as you do not hold a valid entry permit for continued presence.

Accordingly, you are directed to voluntarily leave Papua New Guinea within seven (7) days, upon receipt of this notice. You may apply for appropriate visa abroad should you wish to return.

Your continued presence in the country is therefore deemed in breach of section 7(1) of the Migration Act 1978. Subject to sub-section (2) – The presence of a person other than a citizen, in the country is unlawful if (1),(a) he/she is not the holder of an entry permit.

Furthermore, you are directed to surrender your passport and provide your confirmed outbound travel bookings to the officer in charge of your case, Mr Roy Cornelius by email [address provided] or compliance email [address provided].

Yours sincerely

Dennis Badi

Acting Deputy Chief Migration, CED

4. The first and second plaintiffs were on 11 November 2024 at Jackson’s Airport, Port Moresby, preparing to leave the country on furlough leave, when they were prevented from doing so, interviewed and had their passports confiscated. They were instructed to attend a meeting on 15 November 2024 with the first defendant, Roy Cornelius, Compliance and Enforcement Officer with the ICA. On 17 November 2024 they were served with the notice directing them to leave within seven days. All the plaintiffs left the country in accordance with the directions issued to them.

5. All plaintiffs were aggrieved by the actions of the second defendant and other officers of the ICSA. They commenced proceedings by originating summons seeking declarations that the direction to leave the country issued by the second defendant was “invalid, null and void and of non-effect” [sic] and that the confiscation of the first and second plaintiffs’ passports was unlawful.

6. The first to fourth defendants (senior officers of the ICSA and the Minister for Immigration) argue that the proceedings ought to be summarily dismissed for failure to disclose a cause of action and plead the jurisdictional basis of the relief sought and being frivolous, vexatious and an abuse of process (due to the proceedings not being commenced under Order 16 of the National Court Rules and having no utility as all plaintiffs had complied with the directions to leave the country).

7. They further argue that the directions to leave the country were validly issued as the company that had been the plaintiffs’ employer, the Bible Missionary Church Inc, was deregistered from the company register, so their entry permits were automatically “voided” and their presence in the country was unlawful.

8. The first defendant, Roy Cornelius, has given evidence that on 22 October 2024 the Chief Migration Officer received an investigation report from the Director of Crimes at Police headquarters stating that the police were investigating criminal allegations involving activities of the Bible Missionary Church, that the Bible Missionary Church Inc had been deregistered and that the visas of all foreign employees of that entity should be deemed invalid. Mr Cornelius further deposed that the Chief Migration Officer had instructed the compliance branch of ICSA to liaise with the Police and facilitate the plaintiffs’ exit from the country. That was done in the normal way and the plaintiffs exited the country on 27 November 2024.

9. The fifth defendant is the State, which generally agreed with the plaintiffs’ position regarding the invalidity of the directions.

ISSUES

10. The parties agree on the facts outlined above. Four issues arise:

1. Should the proceedings be summarily dismissed?
   
2. Were the first and second plaintiffs’ passports lawfully confiscated?
   
3. Were the directions to leave the country validly issued?
   
4. What orders should the Court make?
   

1 SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?

11. The originating summons was drafted in accordance with Order 4 rule 27 and form 7 of the National Court Rules. There is no requirement for such an originating process to plead a cause of action. What is required is that the relief claimed by the plaintiff be pleaded. The relief sought is in the nature of declarations, which was clearly pleaded. In any event, the declarations are grounded on alleged breaches by the defendants of specific provisions of the Migration Act, ss 7(1) and 12, so the originating summons does disclose a cause of action.

12. There was no requirement to plead the jurisdictional basis of the relief sought.

13. A case should only be labelled frivolous if it has no reasonable prospect of success or vexatious if it is intended to harass the defendant or if the proceedings are a sham: Wabia v BP Exploration Co Ltd [1998] PNGLR 8, Toap v The State [2004] 1 PNGLR 25, Toap v The State [2004] 2 PNGLR 191). These proceedings are neither frivolous nor vexatious.

14. Though the proceedings might have been commenced by an application for leave for judicial review under Order 16 of the National Court Rules, it was not necessary to invoke Order 16 as no prerogative relief was sought. The effect of Order 16 rule 1(2) is that if only declarations or injunctions are sought, the mode of commencement is optional. The plaintiff can use an originating summons under Order 4 or an originating summons under Order 16. The plaintiffs chose the Order 4 route and there is nothing wrong with that.

15. Though only declarations are sought and the plaintiffs do not claim any consequential relief such as damages and they have complied with the directions and left the country, the case does not fall foul of the principles outlined by the Supreme Court in The State v Central Provincial Government (2009) SC977, which explain the circumstances in which a claim confined to declaratory relief can be regarded as an abuse of process. Here there is a real dispute between the parties as to the legality of the actions of officers of ICSA in confiscating passports and issuing directions to leave the country to non-citizens. The question of whether declarations should be granted are not hypothetical or merely of academic interest.

16. Determination of the case will have a direct bearing on whether the plaintiffs will be able to re-enter PNG and resume their lives. The case is not a futile exercise. I find no abuse of process and will not summarily dismiss the proceedings.

2 WERE THE FIRST AND SECOND PLAINTIFFS’ PASSPORTS LAWFULLY CONFISCATED?

17. Mr and Mrs Shields, after being prevented from leaving the country and being interviewed, were required to surrender their passports to ICSA officials and attend a meeting a few days later. Receipts for their passports were issued. This raises the question whether ICSA officials have any power to confiscate or seize a passport or require that a passport be surrendered.

18. Counsel for the first to fourth defendants did not refer to any provision of the Migration Act that is relevant. I conclude that there is no general power vested in any officer of the ICSA under the Migration Act or any other law to confiscate any person’s passport. The first and second plaintiffs’ passports were unlawfully confiscated.

3. WERE THE DIRECTIONS TO LEAVE THE COUNTRY VALIDLY ISSUED?
   

19. It is apparent from the evidence of the first defendant, Mr Cornelius, and submissions of counsel that the directions were issued on the understanding that the plaintiffs’ employer, Bible Missionary Church Inc, was deregistered in October 2024.

20. I am satisfied, however, that though it was the understanding of the first to fourth defendants that the employer of all of the plaintiffs had been deregistered, that was not the case. Bible Missionary Church Inc, which was registered as a foreign company, was deregistered. However, it was the employer of only the second and third plaintiffs. There was another entity, Bible Missionary Church of Papua New Guinea Inc, an incorporated association, which was the employer of the first, fourth, fifth and sixth plaintiffs; and it was not deregistered.

21. The reason for the plaintiffs having different sponsoring employers is not something that is relevant for the purposes of this case. Suffice to say, I am satisfied that the reason put forward for issuing the directions to all plaintiffs, justifies, if anything, only the directions issued to the second and third plaintiffs. It does not justify the directions issued to the first, fourth, fifth and sixth plaintiffs.

22. There are a number of other problems with the directions issued to all the plaintiffs.

23. First, no officer of the ICSA is authorized by the Migration Act or any other law to direct a non-citizen who is the holder of an entry permit to leave the country. It is telling that the directions did not cite any jurisdictional basis for issuing the directions. There is none. The directions issued to the plaintiffs by the second defendant had no statutory basis.

24. Secondly, the directions were based on the flawed presumption that the plaintiffs’ entry permits were automatically “voided” on deregistration of Bible Missionary Church Inc. Even if Bible Missionary Church Inc were the sponsoring employer for all plaintiffs, there is no provision of the Migration Act that provides for automatic cancellation or ‘voiding’ of an entry permit in circumstances where the sponsoring employer is deregistered. The Act makes provision in s 6 for cancellation of entry permits, but the power of cancellation vests in the Minister and must be exercised in accordance with an elaborate procedure that allows the permit-holder to request the appointment of a Committee of Review to reconsider the matter. None of those procedures were followed in the present case.

25. Thirdly, the plaintiffs’ presence in the country was not unlawful under s 7(1) of the Migration Act, which states:

... the presence of a person, other than a citizen in the country, is unlawful if –

(a) he is not the holder of an entry permit; or
(b) he evaded an officer for the purposes of entering the country.

26. The plaintiffs were the holders of entry permits, which were not cancelled, and there is no evidence or claim that any of them evaded any officer for the purposes of entering the country. Section 7(1)(a), which was invoked in each of the directions, did not apply to any of the plaintiffs.

27. Fourthly, the directions were issued contrary to the principles of natural justice, as none of the plaintiffs were given a right to be heard on the question of whether they should be directed to leave the country.

28. Fifthly, the directions were vague. It is not sufficient to refer to the deregistration of “your company”. The company that was believed to be deregistered should have been identified.

29. Sixthly, the directions were contradictory. Directing a person to do something voluntarily makes no grammatic or legal sense.

30. Finally, the directions were tantamount to an order for removal of the plaintiffs from the country (Tomscoll v Mataio [2016] 2 PNGLR 178). An officer may take action under s 10 of the Migration Act to prevent a non-citizen remaining in the country in contravention of the Act, including detaining the person for such time as is necessary in order to effect their removal or departure from the country (Botha v Yaki [1999] PNGLR 490). However, the power to remove a non-citizen from Papua New Guinea is vested in the Minister, under s 12(1) (removal orders) of the Migration Act, which states:

(1) The Minister may order the removal from the country of—

(a) a person whose presence in the country is unlawful; and

(b) at the further discretion of the Minister—any dependants of such a person.

(2) A removal order shall—

(a) be served on the person to be removed; and

(b) state a period from the date of service within which the person or dependants to be removed shall be removed or shall remove himself or themselves from the country.

(3) The Minister may vary or revoke a removal order.

31. In this case directions were issued by Dennis Badi, acting Deputy Chief Migration Officer. There is no evidence that the Minister delegated to him any power to issue what was in effect an order for removal of the plaintiffs from the country.

32. The combined effect of the above defects in the directions is to render them a nullity. The directions were not lawfully issued.

4. WHAT ORDERS SHOULD THE COURT MAKE?
   

33. I am satisfied that the passports of the first and second plaintiffs were invalidly confiscated and that the directions issued to each of the six plaintiffs had no legal basis and are a nullity. I will grant the declarations sought and award costs of the proceedings to the plaintiffs.

ORDER

1. It is declared that the confiscation by officers of the ICSA of the first and second plaintiffs’ passports at Jackson’s Airport, Port Moresby on 11 November 2024 was unlawful.
   
2. It is declared that the directions to leave the country notices dated 7 November 2024 issued by the second defendant to each of the plaintiffs were illegal and null and void.
   
3. The first to fourth defendants shall pay the plaintiffs’ costs of the entire proceedings on a party-party basis, which shall if not agreed be taxed.

__________________________________________________________________
Lawyers for the plaintiff : Tamutai Lawyers
Lawyers for the 1^st-4^th defendants : Legal Branch, ICSA
Lawyer for the 5^th defendant : Solicitor-General