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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCAPP 17 of 2016
ENFORCEMENT PURSUANT TO
CONSTITUTION SECTION 57
APPLICATION BY:
BEHROUZ BOOCHANI
& 730 OTHERS
Applicants
AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
First Respondent
AND:
NATIONAL EXECUTIVE COUNCIL
Second Respondent
AND:
HON RIMBINK PATO, Minister for
Foreign Affairs & Immigration
Third Respondent
Waigani: Injia CJ, Salika DCJ and Hartshorn J
2017: 8th, 13th March
APPLICATION for interlocutory injunctive relief to restrain the Respondents from deporting, to their home country, asylum seekers determined by the Respondents to be "non-refugees"- Excercise of discretion- Application refused.
Cases:
Airlines of PNG v. Air Niugini Ltd (2010) N4047
American Cyanamid Company v. Ethicon Limited [1975] UKHL 1; (1975) AC 396
Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853
Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC 525
James Marape v. Peter O’Neill (2016) SC1493
Louis Medaing v. Ramu Nico Management (MCC) Limited (2011) SC1156
Mauga Logging Pty Ltd v. South Pacific Oil Palm Pty Ltd [1977] PNGLR 80
Markscal Ltd v. MRDC [1996] PNGLR 419
PAC LNG International Ltd v. SPI (208) Ltd (2014) N5681
PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126
Ramu Nico Management (MCC) Limited and Ors v Tarsie and Ors [2010] SC 1075
Rex Paki v. Motor Vehicles Insurance (PNG) Ltd (2010) SC1015
Robinson v. National Airlines Commission [1983] PNGLR 478
The State v. Transferees (2015) SC1451
Counsel:
Mr. P. B. Lomai, for the Applicants
Mr. T. Tanuvasa, for the First Respondent
Mr. L. P. Kandi, for the Second Respondent
Mr. I. R. Molloy and Mr. R. Bradshaw, for the Third Respondent
13th March, 2017
1. INJIA CJ: I have read the joint ruling of the Deputy Chief Justice and Justice Hartshorn and concur with the orders proposed and reasons thereof. I wish to give additional remarks of my own.
2. The background to the substantive proceedings and the interlocutory application before us are within the knowledge of the parties and I simply allude to some of the pertinent aspects.
3. On 26 April 2016, the Supreme Court found the detention of asylum seekers or transferees (transferees)) held at the Manus Island Regional Processing Centre (MIRPC) to be unconstitutional and illegal: SCA No. 84 of 2013 Between Norman Namah, MP and Leader of the Opposition v Hon. Rimbink Pato, Minister for Foreign Affairs & Immigration, The National Executive Council and The Independent State of Papua New Guinea, Unpublished Judgement of the Supreme Court of Salika Dep.CJ, Sakora, Kandakasi, Sawong & Higgins JJ, dated 26 April 2016, SC1497 (2016). In that case, the Court declared and ordered, inter alia, that:
4. In that case, the consequential ramifications of the closure of MIRPC were obvious. Those included determinations with regard to the future accommodation of the transferees on Manus Island and the processing of the refugee status and settlement of transferees. Of critical importance was a determination with regard to the legal responsibility of the governments of PNG (govPNG) and Australia (govAUS), either severally or jointly, to undertake those tasks. These were not addressed by the full Court in that case.
5. The govPNG complied with the Court order and closed the MIRPC. Between June and August 2016, a series of directional hearings were conducted by the Chief Justice on his own initiative, to find a way forward on those consequential matters and to issue directions to expedite the future settlement of transferees that were stranded on the island after the closure of the MIRPC. By this time the transferees were allowed to move freely in and out of the MIRPC and later when the MIRPC was shut down completely, they were accommodated at the nearby PNGDF Navy base (Lombrum base). In the course of the directional hearings, a threshold question arose as to whether it was the sole responsibility of the govPNG or that of the government of Australia; or that of both; to undertake that task. The Chief Justice referred the question to the original bench that decided the case to determine the issue. On 22 August 2016, the original bench (except for Manuhu J who was brought in by the bench to replace Higgins J) declined to answer the question and instead permanently stayed the proceedings before the Chief Justice.
6. It is now eleven months since the full court’s decision in SCA No. 84 of 2013 and five months since the full Court stayed the directions hearing before the Chief Justice, that the actions taken by the govPNG to implement the full Court’s decision in terms of processing the refugee status of the transferees is now before the Court. The result is that of the 888 transferee population as at 6 March 2017, 614 have been determined to be genuine “refugees”, 205 determined to be “non-refugees” and 69 categorised as “asylum seekers” awaiting processing. The govPNG appears to have taken full responsibility for processing the refugee status of transferees under PNG laws. It appears the govAUS is playing a supporting role and appears to be standing ready to assist the govPNG in whatever decision the govPNG makes to determine the legality of their presence in PNG. It appears the govPNG has determined the refugee status of the majority of transferees and by virtue of that determination, those determined to be non-refugees have had their waiver or exemption from entry requirements given to them when they first entered PNG, to be withdrawn, thus rendering their presence in PNG unlawful and liable to deportation to their home country. Those transferees who have been determined to be genuine refugees will be given the option of returning to their own country or secure a third country including PNG and Australia.
7. The applicants in this application comprise 166 of the 205 non-refugees. They seek interim orders to restrain the respondents from deporting them to their home country pending determination of the substantive application. The applicants are part of the 730 transferees who commenced the substantive proceedings in which they sought declaratory and other orders for what they said were a breach of their Constitutional rights.
8. On 7 November 2016, some 730 transferees represented by the main applicant (Behrouz Boochani) commenced proceedings in the Supreme Court seeking enforcement of their constitutional rights given by ss 32, 36, 37 and 42 of the Constitution. They sought orders, inter alia, that the respondents be restrained from deporting them to their home country; that they be allowed to be sent back to Australia from where they came and were taken to Manus Island; or in the alternative, sent to another country of their choice. They also claimed damages for breach of their Constitutional rights. The substantive application is going through directions hearing to list the matter for trial.
9. It is clear from the evidence that the transferees are being accommodated in a secured military facility where access to and
from the facility and the activities within the facility are restricted or regulated. The applicants argue that their accommodation
at the Navy base has turned into further detention-type accommodation in that their movement is controlled by the govPNG, that their
welfare is at risk, that they have been prevented from coming to Court to pursue their claims and are facing other hardships.
10. I would think that the accommodation of transferees at the Navy base has come about by necessity, the MIRPC been closed under compulsion of court order. The Navy base appears to be the only other government facility in the area that has the capacity to accommodate the transferees in such high numbers. Military premises being what they are, the transferees are subject to the same restrictions that apply to its own habitants. I am not convinced that the applicants have serious issues to be tried on this point.
11. The question whether the responsibility lies with the govAUS or govPNG in terms of the future destination of the non-refugees is an important point in contention between the parties. The applicants rely on the first and sixth Court orders of the full courts’ decision of 26 April 2016 (see paragraph 3 above), to argue that because it was the govAUS that brought them to PNG for the purpose of processing their refugee status and were detained at MIRPC, the govAUS is responsible for settling the transferees in Australia and they be returned to Australia or alternatively, taken to another country of their choice.
12. It is argued for the respondents that the govAUS is neither a party to these proceedings nor does it have any direct role to play in the processing of transferees and no Court orders can be made against govAUS to compel it to accept the non-refugees. It is argued that the transferees are illegal entrants into Australia, that they have no right to enter Australia and that the PNG Courts lack jurisdiction to order the govAUS to permit them to enter Australia.
13. It is further argued by the applicants that the appropriate body to process the refugee status of the transferees is the United National Commission for Human Rights (UNCHR) under the United Nations 1951 Convention Relating to the Status of Refugees and its 1997 protocol (the Refugee Convention) to which PNG and Australia are both signatories. The transferees come from many countries who have fled from their countries to seek asylum in Australia and the UNCHR should assume jurisdiction over the matter under the UN Refugee Convention. The govAUS and govPNG should allow the UNCHR to assume responsibility for processing the refugee status of transferees.
14. In my view, the case for the parties on the question of the refugee status of the transferees has not been clearly spelt out by the applicants in the substantive proceedings. As a result, I am unable to determine with any degree of precision and clarity any question relating to that point. It is not clear if the govPNG is applying the Migration Act or the UN Convention on Refugees or both to simultaneously determine the refugee status of the transferees and the legality of their entry status in PNG. It is possible that the govPNG may be complying with its obligations under the Refugee Convention, to process the transferees’ refugee status, a determination which provided the ground for determining the legality of the entry status of transferees. It is unclear as to the treaty obligations of the govAUS under the Refugee Convention. It is possible that the govAUS may have accepted its treaty obligations under international law and is assisting the govPNG to process the refugee status of transferees. It may be that the UNCHR may have a role in determining the refugee status of the transferees and take appropriate action to settle the refugees and the non-refugees in a given country. There is no question that these are serious matters for determination at the trial of the substantive action. Provided the claim pleaded in the substantive application challenge the process applied by the respondents to determine the refugee status of the applicants, the answer to these questions should be determined in the trial of the substantive action.
15. The applicants argue that the necessary nexus between the relief claimed in the substantive action and those in the current interlocutory application is supplied by the decision of the full court in SCA 84 of 2013, in Orders No 1 and 6: see paragraph 3, supra. They also argue that the nexus is supplied in the relief set out in the substantive application, in the following paragraphs:
(1) A declaration that the respondents breached the Applicant’s constitutional rights under ss 37(1), 42(1), 42(2), and 42(5) of the Constitution by their conduct and involvement in bringing the applicants into PNG and detaining them at the relocation centre on Manus Island.
(6) An order that the respondents, upon the written request of an applicant, take all necessary steps that they have the power to take to send or cause him or her to be sent back to Australia.
(7) An order that the respondents, upon written request of an applicant, take all necessary steps that they have the power to take or cause him or her to be sent to a third country, which has agreed to accept their claim for asylum as refugees.
(8) An order that the respondents return to this Court in 30 days with affidavit evidence setting out the steps taken to comply with orders 6 and 7 to a third country, which has agreed to accept their claim for asylum as refugees.
(10) A declaration that the Commonwealth of Australia breached the applicants’ constitutional rights under s 37(1) and 42(1) of the Constitution by its conduct and involvement in bringing the applicants into PNG and in participating in their detention at the relocation centre on Manus Island.
(11) Further or in the alternative to order 10, that the Commonwealth of Australia, and/or the Minister for Immigration and Border Protection, take all necessary steps within their power to permit any applicant who makes a written request under Order 8 above to be sent back to Australia.
16. The respondents argue that there is no challenge to the process applied in the substantive action and the issues raised by the applicants in this interlocutory application are not open to be raised.
17. In my view, there appears to be a connection between the relief claimed in the substantive action and this interlocutory application. The substantive action does address some of the critical issues that stem from the closure of MIRPC which were not addressed by the full Court in SCA 84 of 2013. However I do agree with the respondents that the process applied to determine the refugee status which is under serious challenge in this interlocutory application is not specifically challenged in the substantive action and therefore the necessary nexus is lacking.
18. That said, I wish to make some preliminary remarks that respond to the arguments raised on this point. The respondents (govPNG) have assumed full responsibility for the maintenance of the transferees on the relocation centre at Lombrum Navy base and processing the refugee status of the transferees applying PNG laws, with the support of govAUS. It appears from the evidence that the govPNG may have had some consultations with the UNHCR and other interested international bodies because the UNHCR, the Commonwealth Ombudsman and the International Red Cross have carried out regular inspections at the MIRPC and have had engagements with the transferees: see affidavit of Esther Gaegaming sworn on 6 March 2016. I do not see any real difficulty, legally speaking, with this arrangement. The transferees were first allowed to enter PNG under Ministerial exemption of the entry requirements under PNG law, under the Migration Act to be specific. The argument by the respondents that the determination of the legality of their presence in PNG will have to be determined in accordance with the Migration Act is the stronger argument. The determination of the refugee status of the transferees would have to be made under the UN Convention on Refugees .That a determination by the govPNG, as to the refugee status could as well be a ground for determining the legality of the entry of non-citizens into PNG under the Migration Act, appears to be beyond question.
19. I also make some preliminary observations on the immigration status of the transferees. The immigration status of these asylum seekers into Australia is not clear from the evidence, though their entry into PNG is not in question. It is not difficult though to ascertain their status. They fled their own countries for different reasons and made their way to Australia by boat. PNG was never their choice of destination; Australia was. They were no doubt illegal immigrants into Australia. They were in the custody of the govAUS as illegal immigrants and were not welcome in Australia. Instead of holding them in their own processing center or detention facility, the govAus reached an agreement with the govPNG to transfer them to Manus Island to be held in detention whilst the govAus processed their applications on PNG soil. As a sovereign nation, govPNG agreed to waive or exempt entry requirements under its own Migration Act and validated their entry into PNG. That establishment of the MIRPC is a decision made by the govPNG and it has taken full responsibility for its closure and the future of transferees is understandable. The processing of transferees’ refugee status should remain the responsibility of govPNG, applying PNG law and applicable international law on refugees, and of course assisted by Australia. The applicable Constitutional amendments and two MOUs entered between the govAUS and govPNG to give effect to the Constitutional amendments have been invalidated by the Supreme Court in SCA 84 of 2013, and as the applicants argue, there is no legal framework in place to facilitate the processing of the applicants' refugee status. This arguments ignores the fact that PNG and Australia already have in place other bilateral treaty arrangements for cooperation between them on these sort of matters and are also signatories to the UN Convention on Refugees, under which the two governments can cooperate and process the refugee status of the transferees.
20. The govPNG has applied its own laws and I assume the UN Convention on Refugees to process the asylum seekers and found the 205 including the 166 applicants to be "non-refugees" and decided to return them to their home country. There is evidence before us from the respondents to suggest that the processing has been done carefully, applying relevant laws and processes under those laws. The number of transferees appearing under the three categories (Refugees, Non-Refugees &Asylum Seekers) reflects a carefully thought out and applied process that has produced a fair outcome for this group of asylum seekers. I reach this inference from the number of transferees involved and the number that have been processed so far. At the peak of the transfers, in November 2013, the number of transferees reached 1,339. On 6 March 2017, the number was reduced to 888. I would have to assume that the difference of 451 transferees have already been processed and no question arises in respect of them. The respondents say some of those have returned to their home countries voluntarily. Of the 888, a total of 819 transferees have been processed, of which 614 (69%) have been determined to be genuine refugees and 205 (23%) determined to be non-refugees, and 69 (3%) still remain asylum seekers and their applications are under processing. A screening and decision-making process that yields a very high percentage (69%) of asylum seekers receiving “refugee” status bespeaks of a process that has been fair and merit-based. The high number of refugees has now placed the govPNG and govAUS under enormous and onerous responsibility to settle them in a new home country of their choice including Australia and PNG. The process could not get any fairer than this. It would seem unfair, cause great inconvenience and financial hardship and cause prejudice and complicate the rights and obligations of the govPNG and govAUS under their domestic and international law, for this Court, to compel the govAUS and govPNG to do more than their share of meeting their international obligations to help “asylum seekers” in addressing their plight.
21. SALIKA DCJ and HARTSHORN J: This is a decision on:
a) a contested application for an interlocutory injunction, and;
b) an application to withdraw the proceeding against the second respondent.
22. The interlocutory injunction application is to restrain amongst others, the third respondent, the Hon. Rimbink Pato, Minister for Foreign Affairs & Immigration from forcibly deporting the 166 applicants, also referred to as the “rejected asylum seekers”, or any other asylum seekers or refugees detained at the Lombrum Detention Centre and the East Lorengau Detention (Transit Centre), pending determination of this proceeding or further order.
23. The application to withdraw the proceeding against the second respondent, the National Executive Council was not opposed apart from on the question of costs.
Background
24. This proceeding has been commenced by an Application to Enforce Constitutional Rights (Application). It has been purportedly filed by Mr. Behrouz Boochani and 730 other persons. They are collectively referred to as “Asylum Seekers”. The Application was filed on 7th November 2016 and alleges amongst others, breaches of s. 42 Constitution in respect of the Applicants’ detention at the Manus Island Processing Centre.
25. The relief sought in the Application includes declaratory orders to the effect that the respondents and the Commonwealth of Australia breached the Applicants’ constitutional rights, that the respondents are liable to the Applicants for reasonable compensation and exemplary damages and that the respondents take all necessary steps that they have the power to take, to send each Applicant to Australia or a third country.
Application to withdraw the proceeding against the second respondent
26. The second respondent seeks its costs on a solicitor client basis as it is submitted that the Applicants had been careless in naming it as a party. We are not satisfied that by naming the second respondent as a party in circumstances when it was named as a party in a previous Supreme Court proceeding involving essentially the same parties, is conduct that falls within that described in Rex Paki v. Motor Vehicles Insurance (PNG) Ltd (2010) SC1015, as warranting an award of costs on an indemnity basis.
27. Order 11 Rule 30(2) Supreme Court Rules provides for costs to be paid by the party withdrawing proceedings and we see no reason why the Applicants should not pay these and on a party party basis. We order that leave to withdraw the proceeding against the second respondent is granted and for the Applicants to pay the costs of the second respondent of and incidental to the proceeding on a party party basis.
Application for interlocutory injunctive relief
28. The applicants for the interlocutory injunctive relief submit that it should be granted as amongst others:
a) they have established that they have serious questions to be tried in their substantive Application including that their constitutional
rights have been infringed;
b) the balance of convenience favours the grant of the injunction to preserve the status quo as they will suffer considerable prejudice
otherwise. It is submitted that all of the Applicants including those under threat of deportation have expressed fears that if they
are returned to their home countries, they will be subjected to torture, or inhumane treatment and punishment;
c) damages would not be an adequate remedy as the applicants are seeking in addition to damages, that they be caused to be sent to
Australia or a third country and further that they are unwilling to remain in Papua New Guinea;
d) there has not been any delay in making this application.
29. The first and third respondents (hereinafter referred to as “the respondents”) submit that the interlocutory injunctive
relief sought should not be granted as:
a) no proper jurisdictional basis is relied upon by the applicants as required by Order 13 Rule 15 Supreme Court Rules. The various provisions relied upon do not confer upon this Court the jurisdiction to grant injunctive relief sought;
b) none of the 166 applicants for the relief sought, purportedly at risk of imminent deportation, have given evidence in support of
this application;
c) the evidence relied upon does not refer to or support this application;
d) this application does not disclose any grounds as to why the grant of an interlocutory injunction is required to preserve or protect
an underlying legal right or claim the subject of the substantive Application;
e) there is a disconnection between what is being sought by way of interlocutory injunction and the substantive claim. The substantive
claim is that the Applicants have been unlawfully detained whereas the claim for the interlocutory injunction appears to concern
decisions finding persons not to be refugees. Those decisions however do not arise in the substantive Application;
f) if the question raised by the applicants in this application does arise in the substantive Application, the evidence does not establish
a serious question to be tried;
g) there is no substantive challenge to the validity of the Migration Act or the process followed to determine an applicant’s refugee status;
h) it is not clear who is making the application or their status as some of the persons named in a schedule of non-refugees that is
in evidence are not applicants to the substantive Application;
i) the issue of the balance of convenience does not arise as there is no serious question to be tried established, and the determination
of the substantive Application is not concerned with matters raised in this application;
j) not all of the applicants to this application have given an undertaking as to damages;
k) damages would be an adequate remedy as the claim for damages could be pursued if the applicant is not in Papua New Guinea, as could
their claims for the respondents to take all necessary steps that they have the power to take to send or cause the applicants to
be sent back to Australia or a third country.
Consideration
30. The principles upon which the court can grant an interlocutory injunction are well settled. The leading authority is a decision of the House of Lords in American Cyanamid Company v. Ethicon Limited [1975] UKHL 1; (1975) AC 396. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC 525. These principles have been reaffirmed by the Supreme Court in Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853.
31. In Chief Collector of Taxes v. Bougainville Copper Limited [2007] SC 853, the Supreme Court said at 31:
“In our jurisdiction the principles relevant to injunctive reliefs (sic) are well settled. In Golobadana No. 35 v. Bank of
South Pacific, Kandakasi J. ... concluded as follows:
“A reading of these authorities shows consistency or agreement in all of the authorities that the grant of an injunctive relief
is an equitable remedy and it is a discretionary matter. The authorities also agree that before there can be a grant of such a relief,
the Court must be satisfied that there is a serious question to be determined on the substantive proceedings. This is to ensure
that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised in
the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief
to maintain the status quo. Further, the authorities agree that, if damages could adequately compensate the applicant then an injunctive
order should not be granted”.”
32. Similarly, in Ramu Nico Management (MCC) Limited and Ors v Tarsie and Ors [2010] SC 1075 at [53], in a decision in which Hartshorn J. dissented on matters not currently relevant, His Honour said:
“The law on injunctions is settled in this jurisdiction. Injunction is an equitable remedy. It is a matter for the discretion of the Court to refuse or grant the relief sought. In order for an injunction to be granted, the applicant must demonstrate to the Court that there is a serious case to be tried on the substantive proceedings. The leading authority is a decision of the House of Lords in “American Cyanamid Company v Ethicon Limited (1975) 1 All ER 594. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Niugini Pty Ltd v Allan Mott (1997) SC525 and Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853.”
33. If damages would be an adequate remedy then even if there is a serious question to be tried interlocutory injunctive relief should be refused: Airlines of PNG v. Air Niugini Ltd (2010) N4047 at 22 and 23 and PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126 at 30, PAC LNG International Ltd v. SPI (208) Ltd (2014) N5681 [24], Ramu Nico Management (MCC) Ltd v. Tarsie (2010) SC1075 [53].
Jurisdictional basis of the application for interlocutory injunctive relief
34. Order 13 Rule 15 Supreme Court Rules relevantly provides that all applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought.
35. The jurisdiction of the court relied upon for this application is s. 57 (1), (3) and (6), and s. 155(4) Constitution, and Order 6 Rule 1 Supreme Court Rules. In regard to s. 57 Constitution, the only submission made by counsel for the applicants was in his reply and that was concerning s. 57(3). It was submitted that s. 57(3) gives jurisdiction to a court to make amongst others, interlocutory orders. No authority was cited in support of this submission.
36. From a perusal of s. 57(3) we are satisfied that it is concerned with the grant of a substantive order or declaration by a
court which has jurisdiction under s. 57(1). This is reflected in the following statement by Gavara Nanu J. in The State v. Transferees (2015) SC1451 at [14] although made in a different context:
“41. In regard to s. 57(3) of the Constitution, I find that it confers power on a court only to make an order for a declaration to
enforce a statutory right or duty:...... The court’s jurisdiction under s. 57(3) is derived from s. 57 (1) and a court’s
power to make an order or a declaration under this section only arises upon an application being made by a party.”
37. We are not satisfied that s. 57(3) confers jurisdiction to grant interlocutory relief and so it is not able to be relied upon by the applicants for that purpose in this instance.
38. Similarly, sections 57(1) and (6) do not confer jurisdiction to grant interlocutory relief.
39. Counsel for the applicants submits that s. 155(4) Constitution has been held to give jurisdictional basis to the grant of interlocutory injunctions. The National Court decision in Mauga Logging Pty Ltd v. South Pacific Oil Palm Pty Ltd [1977] PNGLR 80 is relied upon. There are however numerous Supreme Court decisions of later vintage that have given consideration to this provision. As was stated in Louis Medaing v. Ramu Nico Management (MCC) Limited (2011) SC1156 at [10] – [12]:
“10. Section 155 (4) Constitution has been considered on numerous occasions by this Court. It has been interpreted as conferring jurisdiction on the court to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law: SCR No 2 of 1981 [1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] PNGLR 401 at 402.
11. Section 155 (4) is not however the source of any substantive rights, as stated by Kidu CJ in SCR No 2 of 1981 (supra):
“The provision under reference.... does not.... vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement.”
12. We also make reference to Powi v. Southern Highlands Provincial Government (2006) SC844 in which the Court, after giving detailed consideration to s. 155 (4) said that in its view, there are about five important features or attributes of that section. They are:
“1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make “such other orders as are necessary to do justice in the particular circumstances of each case” before the Court;
2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
3. Where remedies are already provided for under other law, the provision does not apply;
4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; and
5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.”
We respectfully agree with the views expressed in Powi (supra).”
40. We also respectfully agree with the views expressed in Powi (supra). In this instance, Order 3 Rule 2(b) Supreme Court Rules applies. As a remedy is already provided for under other law, s. 155(4) Constitution does not apply.
41. As to the reliance upon Order 6 Rule 1 Supreme Court Rules, it is clear that this Rule does not confer jurisdiction to grant interlocutory relief.
42. Given the above, we are satisfied that this application does not contain a concise statement of the court’s jurisdiction
that enables it to grant the orders being sought. Consequently this application should be refused.
Whether interlocutory relief sought is necessary to ensure that the substantive relief may be made
43. If this application is not dismissed on the citing of jurisdiction issue, the next issue that we consider is whether the applicants have established that the interlocutory injunctive relief that they seek is necessary to ensure that the substantive relief sought may be made.
44. In James Marape v. Peter O’Neill (2016) SC1493 the Court said at [21]:
“21. “The first object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for
which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour
at the trial; ........”
“The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious
question to be tried.”
22. These are statements made by Lord Diplock in the seminal House of Lord’s decision of American Cyanamid Co. (No. 1) v. Ethicon
Ltd [1975] UKHL 1; [1975] AC 396. The principles contained in the speech of Lord Diplock pursuant to which a court can grant an interlocutory injunction have been
followed on many occasions in this jurisdiction. They have been cited with approval by this Court in Craftworks Nuigini Pty Ltd v.
Allan Mott (1997) SC525 and reaffirmed in Chief Collector of Taxes v. Bouganville Copper Ltd (2007) SC853.”
45. Then at [32]:
“32. An interlocutory injunction sought to protect the right of the plaintiffs as asserted in the Originating Summons would in our
view be seeking interim or interlocutory orders restraining conduct that may prevent the substantive orders and declaration sought
in the Originating Summons being made.”
46. As the purpose of an interlocutory injunction is to protect the right of the plaintiff as asserted in the originating process, the plaintiff will be seeking orders that restrains conduct that may prevent the substantive relief sought in the originating process being made.
47. In this instance, the substantive claim of the applicants is in essence that they were detained in contravention of s. 42 Constitution. This detention has ceased though as in their documentation it is stated that the “unconstitutional restraints on egress and ingress by the applicants ceased on or about 10 May 2016.”
48. The subject of this interlocutory application appears to concern decisions that have been made to the effect that the applicants are not refugees and that the applicants are to be deported. The interlocutory application is not concerned with the applicants’ detention. The claims in the interlocutory application concerning decisions that have been made to the effect that the applicants are not refugees and that the applicants are to be deported have not made been made in the substantive Application. For instance there is no challenge to the process under which a determination is made as to an applicant’s refugee status and there is no challenge to the Migration Act in the substantive proceeding.
49. There is a disconnection between what is being sought by way of an interlocutory injunction and the substantive claim. Further, similar to the position in Marape v. O’Neill (supra) it is not the case in my view that the relief sought in the interlocutory application is necessary to restrain conduct that may prevent the substantive orders and declarations sought in the substantive Application being made.
50. Given this, we are not satisfied that the applicants have established that the interlocutory relief that they seek is necessary to ensure that the substantive relief sought may be made. Consequently, and consistent with the decision in Marape v. O’Neill (supra) this application should be refused.
Serious question to be tried
51. If the application is not refused on the above basis, the next issue we consider is whether the applicants have established that they have a serious question to be tried.
52. A serious question to be tried has been interpreted to mean:
“What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success....”:Robinson
v. National Airlines Commission [1983] PNGLR 478 and
“..... a strong case which, on the evidence presented would support a permanent injunction”: Markscal Ltd v. MRDC [1996] PNGLR 419.
53. The evidence in support of the application is at best limited. The applicants for the injunctive relief have not given any evidence notwithstanding in particular, the submissions made on their behalf concerning their alleged fears of adverse treatment if deported. The only evidence in support of the application consists of affidavits of the applicant’s lawyer. This evidence is of a general nature and concerns the lawyer’s beliefs, understanding and fears and is in my view inadequate to sufficiently support this application. The evidence does not detail for instance that the proper legal process in assessing the applicants was not followed. Further as referred to, there is no challenge to the validity of the Migration Act. We are not satisfied that a serious question to be tried that is not speculative and that has a real possibility of ultimate success has been properly established by the applicants given in particular the limited relevant evidence in support. Consequently the application for interlocutory injunctive relief should be refused.
Whether damages an adequate remedy
54. If a serious question to be tried has been properly established, the next consideration is whether damages are an adequate remedy. As the main substantive relief in the Application is for damages, and the Application could continue to be pursued even if the applicants were not in Papua New Guinea, we are satisfied that damages are an adequate remedy in regard to the part of the applicants claim that claims damages.
55. It is submitted on behalf of the applicants that as part of their claim is to be caused to be sent to Australia or a third country, damages could not be substituted for these orders. To our minds, that the applicants claim concerning being sent from Papua New Guinea is confined to the extent of the respondents’ power, this is a tacit acknowledgement by the applicants that the respondents are only able to send a person to a country, of which they are not a citizen, if that country consents. Given its limited nature, such an order could be made even if an applicant was not in Papua New Guinea. It is not necessary in our view therefore that an applicant remain in Papua New Guinea to pursue this part of the substantive Application.
56. Given the above and in all the circumstances, as for various reasons we are of the view that the application should be refused, it is not necessary to consider the other submissions of counsel.
Orders
57.
a) Leave to withdraw the proceeding against the second respondent is granted to the Applicants;
b) The Applicants shall pay the costs of the second respondent of and incidental to this proceeding on a party party basis to be taxed
if not otherwise agreed;
c) The application for interlocutory injunctive relief contained in paragraph 2 of the application of the applicants filed 27th February 2017 is refused;
d) The costs of the said application of the first and third respondents shall be paid by the Applicants on a party party basis to
be taxed if not otherwise agreed.
____________________________________________________________
Lomai & Lomai Lawyers: Lawyers for the Applicants
General Solicitor: Lawyers for the First Respondent
M.S. Wagambie Lawyers: Lawyers for the Second Respondent
Bradshaw Lawyers: Lawyers for the Seventh Defendant
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URL: http://www.paclii.org/pg/cases/PGSC/2017/4.html