Independent State of Papua New Guinea v Uddin [2022] PGSC 109; SC2312 (31 August 2022)

SC2312

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 12 OF 2020 (IECMS)

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-First Appellant-

AND:
PETRUS THOMAS, MINISTER FOR IMMIGRATION & BORDER SECURITTY
-Second Appellant-

AND:
PNG IMMIGRATION AND CITIZENSHIP AUTHORITY
-Third Appellant-

AND:
SOLOMON KANTHA, CHIEF MIGRATION OFFICER
-Fourth Appellant-

V

HELAL UDDIN
- Respondent-

Waigani: Salika CJ, Murray J & Anis J
2021: 22^nd November
2022: 31^st August

CONSTITUTIONAL LAW- Proscribed acts - Section 41- Applicability and whether Rights created - Enforceability – Section 57

IMMIGRATION AND ALIENS - Action by foreign national in the country with no entry permit- wife and son are citizens- Order for his deportation after being discovered of being in the country without an entry permit – Detention pending deportation- Whether removal orders made under Migration Act unreasonable and unlawful.

Cases Cited:

Paru Aihi v. Peter Isoaimo (2013) SC1276
Chief collector of Taxes v Bougainville copper Limited [2007] SC853
State v Tamate [2021] SC2132
Curran v The State; Minister for Foreign Affairs; Marsipal, Narokobi and Waka, as Members of a Ministerial Committee of Review [1994] PNGLR 230
Application by John Mua Nilkare, Review Pursuant to S155(4) of the Constitution [1998] PNGLR 472
Aihi v The State [1981] PNGLR 81
Raz v Matane [1985] PNGLR 329
Premdas v State [1979] PNGLR 329

Counsel:

Mr T. Mileng, for the Appellants
Ms J. Kambal, for the Respondent

31^st August, 2022

1. BY THE COURT: This appeal arises from the judgment and order of His Honour Justice Cannings in National Court proceeding HRA NO. 228 OF 2019 HELAL UDDIN v. THE INDEPENDENT STATE OF PAPUA NEW GUINEA & 2 ORS (“Proceedings”) made on 16 April 2020, whereby His Honour Justice Cannings, amongst others, quashed the Second Appellant’s (the Minister) removal Order dated 9 April 2019 to deport the Respondent and order that the Respondent be issued with an entry permit authorizing his residency in country.
   

Background

2. The background facts which are set out below in a chronological order are obtained from the Respondent’s affidavit which is at pp 29-72 AB, as well as from the National Court Judgment of 16^th April 2020.
   
3. In 2013, the Respondent, Helal Uddin, a Bangladeshi first entered Papua New Guinea as an asylum seeker under Regional Resettlement Agreement (RRA) between Australia and Papua New Guinea. Whilst in the country on that arrangement, he was held on Manus Island. Whilst in Manus, he made an application under the Migration Act to be granted a refugee status.
   
4. On 9^th January 2016, the Minister for Immigration & Border Security wrote to him, informing him that his application was refused. In the same letter, the Minister gave him the option to voluntarily return to his country and further put him on notice that, removal orders have been issued, and if he fails to voluntarily leave PNG, removal action would be taken against him.
   
5. Also, in that year, 2016, whilst in Manus, he met a Alice Michael, a young woman from Manus and married her later on 01^st March 2017 through Manus custom.
   
6. On 19^th March 2017, their only child, a son was born. Their son would now be 5 years old.
   
7. In early 2018, the PNG Immigration & Citizenship Service Authority implemented the Minister’s removal order referred to in the Minister’s letter of 29^th January 2016. The Respondent was deported back to Bangladesh, his country of origin.
   
8. In early 2019, the Respondent illegally entered Papua New Guinea by boat through the Indonesian border. When he got into the country, he returned to his family in Manus.
   
9. On or around 28^th March 2019, after learning from the Papua New Guinea National Civil and Identity Registry office in Manus through the NID Program, that the Respondent had returned and was in the country illegally, the Papua New Guinea Immigration Authority had him arrested and charged under the Migration Act 1978, for illegally entering the country without a permit.
   
10. On 9^th April 2019, the Papua New Guinea Immigration Authority through the Minister, issued a removal order for the Respondent to return to Bangladesh. That was put on hold pending the determination of the Respondent’s charge before the District Court.
    
11. On 17^th July 2019, the Waigani District Court found him guilty on the charge of illegally entering the country and fined him K2,000.00.
    
12. A few days after the District Court decision, the Respondent paid the fine but remained in custody pursuant to the Removal Orders and Directions of the Minister while arrangements were made for his deportation.
    
13. On 29^th July 2019, aggrieved by the Removal orders and directions of the Minister, the Respondent filed a Human Rights application in National Court (HRA No. 228 of 2019), challenging the Minister’s Removal Orders, claiming his rights under the Constitution were breached.
    
14. On the same date, the National Court, issued interim restraining orders against the Minister and all other persons preventing them from giving effect to the Removal Orders of 9^th April 2019 and from taking further steps to deport the Respondent, until further orders.
    
15. On 16^th April 2020, following a trial, the National Court found that the Appellants acted unreasonably by issuing the removal order for his deportation, and that such actions or decision to issue a Removal Order for the Respondent’s deportation was harsh and oppressive under the circumstances.
    
16. The National Court then quashed the removal order issued by the Minister and ordered the Appellants to issue by 29^th April 2020, a permit to the Respondent to remain in the country for a period of 3 years.
    
17. Aggrieved by that decision of the National Court, the Appellants filed this Appeal and obtained an interim stay of the National Court orders of the 16^th April 2020.
    
18. The appeal lies without leave.
    

Grounds of Appeal

19. At paragraph 3 of the Supplementary Notice of Appeal, the appellants raised 10 grounds of appeal which we have distilled into 5 main categories of alleged errors of law and mixed facts and law as follows:
    
    1. The National Court erred in finding that Section 41 (1) of the Constitution created rights and freedoms that are enforceable under Section 57 of the Constitution.
       
    2. The National Court erred in finding that the actions of the Minister for Immigration & Border Security and his officers, in issuing the removal orders, firstly in 2016 and later in 2019 were harsh, oppressive, and not warranted by the circumstances of the case, and therefore, unlawful under Section 41 (1) (a) and (b) of the Constitution.
       
    3. The National Court erred in making the following orders: firstly, for the release of the Respondent from custody and secondly, for the Second and Third Appellants to issue the Respondent an entry permit for a period of three years.
       
    4. The National Court erred in finding that the Respondent was denied natural justice in that he was not given the opportunity to be heard on the question of his deportation.
       
    5. The National Court erred in finding that the Respondent was forcefully transferred from Australia to PNG in 2013 and unlawfully detained in Manus for 2 years and 6 months, in breach of his rights under Section 41 of the Constitution.
       

Issues

20. Proceeding on the five categories of grounds of appeal, the issues for our determination are:
    
    1. Did the National Court err in its finding that Section 41 (1) of the Constitution does create rights and freedoms that are enforceable under Section 57 of the Constitution?
       
    2. Did the National Court err in its finding that the actions of the Minister for Immigration & Border Security and his officers, in issuing the removal orders, firstly in 2016 and later in 2019 were harsh, oppressive, and not warranted by the circumstances of the case, and therefore, unlawful under Section 41 (1) (a) and (b) of the Constitution?
       
    3. Did the National Court err in making orders for: firstly, the release of the Respondent from custody and secondly, for the Second and Third Appellants to issue the Respondent an entry permit for a period of three years?
       
    4. Did the National Court err in its finding that the Respondent was denied natural justice in that he was not given the opportunity to be heard on the question of his deportation?
       
    5. Did the National Court err in its finding that the Respondent was forcefully transferred from Australia to PNG in 2013 and unlawfully detained in Manus for 2 years and 6 months, in breach of his rights under Section 41 of the Constitution?
       
       

Determination of the Issues

Did the National Court err in its finding that Section 41 (1) of the Constitution does create rights and freedoms that are enforceable under Section 57 of the Constitution? (Ground 3 (a)

21. The appellants argue that the trial Judge made an error in finding that Section 41 (1) of the Constitution created rights and freedoms that are enforceable under Section 57 of Constitution when his Honour followed and applied the dissenting view in the case of Raz v Matane [1985]PNGLR 329. It is argued that the trial Judge ought to have found that Section 41 of Constitution does not create a right enforceable under Section 57 of Constitution which was the view of the majority in Raz v Matane, which his Honour was bound to follow and apply.
    
22. The respondent argues that the trial Judge did not go wrong when his Honour made a finding that Section 41 (1) of the Constitution created rights and freedoms that are enforceable under Section 57 of Constitution. It is argued that, although his Honour followed and applied the dissenting and the minority view in the case of Raz v Matane [1985]PNGLR 329, his Honour did not go wrong because the Supreme Court, comprising of 5 Judges, in Premdas v State [1979] PNGLR 329 supports that proposition. In other words, the respondent submits, Premdas supports the view that Section 41 does create rights and freedoms that are enforceable under s 57 of the Constitution.
    
23. We find the argument by the respondent misleading. The Premdas case is a Section 18 Supreme Court Reference. Six questions involving the interpretation of the Constitution that arose from the National Court proceeding instituted by Dr. Premdas were referred. In the National Court proceeding, Dr. Premdas sought a declaratory order that the principles of natural justice referred to in the Constitution had been violated and that his rights and freedoms were in need of protection and enforcement. He also sought an order that he not be forcefully removed from Papua New Guinea.
    
24. None of the questions referred involved the issue of whether Section 41 of the Constitution created rights and freedoms that are enforceable under Section 57 of the Constitution.
    
25. The Premdas case does not stand for any proposition that supports the respondent’s contention. However, it is in line with the case of Raz v Matane [1985] PNGLR 329. The Raz case is also a Supreme Court reference pursuant to Section 18 of the Constitution. The Court specifically determined, as one of the questions referred, whether Section 41 of the Constitution confer a right enforceable by the National Court under Section 57 of the Constitution. In its majority decision, the Supreme Court held the view that section 41 of the Constitution does not confer a right or freedom within the meaning of section 57 (1) and is therefore not enforceable under section 57 (1).
    
26. Under the doctrine of stare decisis, the law requires the National Court to follow and apply the majority decision of the Supreme Court.
    
27. In this case, the National Court made Orders and declarations, the subject of this appeal, based on principles outlined in the dissenting minority view of the court. The National Court did not follow the principles set out by majority decision of the Supreme Court in Raz. This is contrary to the accepted principles of precedent (“stare decisis”).
    
28. As the Supreme Court is not bound by its own decisions, we are not required to follow the majority decision of Raz. At the same time, we cannot easily depart from it. To do so, there must be a good reason. In Paru Aihi v. Peter Isoaimo (2013) SC1276, the Court, per Kandakasi J (as I then was), Hartshorn and Yagi JJ stated that position at paragraph 23 in the following terms:
    

“As clearly stipulated in Schedule 2.9 (1) of the Constitution, this Court is not bound by its earlier decisions. However, that does not mean that, the Court can readily and easily depart from its earlier decisions as and when it wants to or feels like. Instead, departures are permissible for good reason and in keeping with the relevant principles governing departures.”

29. In this case, as the Respondent has not provided any sound arguments why this Court should diverge from the majority decision in Raz v Matane. We adopt and affirm the majority decision in the case of Raz v Matane, that section 41 of the Constitution does not confer or create any new rights that are enforceable under section 57 of the Constitution.
    
30. The National Court made Orders and declarations in favour of the respondent on the basis of the principles outlined in the dissenting minority view of the court in Raz v Matane (supra). Having accepted that, that is not the correct position at law and that the correct position is that no new right is conferred by section 41 of the Constitution, it follows therefore that, the declarations given by the National Court to the respondent should be rendered void and of no effect.
    
31. The first category of grounds of appeal is upheld.
    

Did the National Court err in its finding that the actions of the Minister for Immigration & Border Security and his officers, in issuing the removal orders, firstly in 2016 and later in 2019 were harsh, oppressive, and not warranted by the circumstances of the case, and therefore, unlawful under Section 41 (1) (a) and (b) of the Constitution? (Grounds 3 (b), (c), (f), (g), (h))

32. The appellants argue that the trial Judge erred in finding that the actions of the Minister for Immigration & Border Security and his officers, in issuing the removal orders, in 2016 and later in 2019 were harsh, oppressive, and not warranted by the circumstances of the case, and therefore, unlawful under Section 41 (1) (a) and (b) of the Constitution, in that:
    
    • The decision by the Minister to issue the removal order was a lawful and reasonable step taken in the sovereign interest of the country as the Respondent had entered the country illegally without a permit.
    • reasonable steps were taken to process the Respondent where he was prosecuted for illegal entry and thereafter ordered to be removed from the country as he had illegally entered.
    • the Respondent failed to prove that the Appellants acted unreasonably in issuing a removal order for his deportation. The removal order was standard immigration practice and it was legally issued under Section 10 of Migration (Amendment) Act 2016 (hereon referred to as Migration Act) for his deportation after he was found to be illegally in the country.
    • the circumstances taken into account by the trial judge were irrelevant.
    • the trial judge failed to give paramount consideration to the status of the Respondent as an illegal entry person who entered the country unlawfully before finding that the Appellants acted unreasonably in ordering the deportation of the Respondent.
    • the circumstances taken into account by the trial judge were irrelevant as the Respondent was deported out of the country as a non-refugee through a ministerial determination in 2018. This in effect extinguished any right of the Respondent to raise any arguments on a breach of a right.
    • as the Respondent illegally entered the country, the Appellants acted reasonably under the circumstances through the Minister in ordering for the deportation of the Respondent.
    • the Minister lawfully issued the removal order for the Respondent to be deported after he was found to be unlawfully in country without an entry permit. That is not peculiar to our jurisdiction. That is the case everywhere in the world.
    • All countries in the world have laws that regulate the entry of foreigners into their country, decide how long they should stay with conditions and to provide for their expulsion if they are considered undesirable.
    • the entry of a foreigner in a country and his stay in a country are not rights but are licences. (Premdas v The State [1979] PNGLR 329).
      

33. The respondent contends that trial Judge did not make any error in finding that the actions of the Minister for Immigration & Border Security and his officers, in issuing the removal orders, were harsh, oppressive, and not warranted by the circumstances of the case, and therefore, unlawful under Section 41 (1) (a) and (b) of the Constitution, because the Court was satisfied that the respondent discharged the burden of showing on the balance of probabilities that the appellants' treatment of him, especially his proposed deportation, has been, and if not restrained will continue to be harsh, oppressive and not warranted in the circumstances of his particular case. Those circumstances being:

• He was forcibly transferred in 2013 from Australia to PNG without any choice and was unlawfully detained in a processing centre in conditions akin to a prison from 2013 to 2016 for two years, six months;
• he married a PNG citizen and is the biological father of a child who is a PNG citizen.
• No investigation has been undertaken into the question of whether he is a fit and proper person to remain in PNG and there is no evidence that he has committed any offence other than illegal entry under the Migration Act;
• He has not been given a right to be heard on the question of whether he ought to be deported, nor has he been accorded the opportunity to say why he wishes to remain in PNG.
• the wishes of the Respondent's wife, a PNG citizen, for the respondent to stay with her and their child and,
• the interests of the Respondent's child. The child will be denied the opportunity to be raised and nurtured by the respondent if he is deported.
  

34. At the outset, we find no merit in the respondent’s argument that the removal orders were harsh, oppressive, and not warranted given the peculiar circumstances for 2 reasons. First, the removal orders were made in accordance with law and second, there is nothing peculiar about the circumstances of the respondent to which he argues do not warrant the action by the Minister and his officers. What the respondent considers peculiar are not above the law. They must be considered in accordance with the law. The appropriate law dealing with immigration matters is The Migration Act 1978 (“The Act”). More relevant are Sections 3, 4, 10 and 13. These provisions provide:

SECTION 3. PROHIBITION ON ENTRY WITHOUT ENTRY PERMIT

No person, other than a citizen, shall enter the country unless–

(a) he is the holder of an entry permit; or

(b) he is a person, or a member of a class or description of persons, exempted by the Minister under Section 20 from the requirement to hold an entry permit.

SECTION 4. ISSUE OF ENTRY PERMIT

(1) A person seeking an entry permit shall apply for it in the prescribed manner.

(2) An officer or authorized person, on receipt of an application made under Subsection (1), may issue an entry permit.

(3) An entry permit may be issued to a person before he has entered the country or after he has entered the country.

SECTION 10. PREVENTION OF UNLAWFUL PRESENCE.

(1) An officer shall prevent a person from entering or remaining in the country in contravention of this Act.

(2) Where a person has entered or remained in the country in contravention of this Act, an officer shall– (a) return that person to the conveyance in which he arrived in the country and keep him there until its departure from the country; or (b) obtain a removal order in respect of that person; or

(c) arrest that person and keep him in custody pending his prosecution under this Act.

SECTION 13. POWER TO DETAIN AND REMOVE PERSONS FROM COUNTRY.

(1) The Minister may order that a person against whom a removal order has been made be detained in custody until arrangements can be made for his removal from the country.

(2) A person against whom a removal order has been made may– (a) if he has not removed himself from the country within the period stated in the order; or (b) if he is being detained in accordance with an order made under Subsection (1), be placed on board a suitable conveyance by an officer and may be detained in that conveyance until it leaves the country.

(3) A person against whom a removal order has been made may be removed to any country which is under an obligation to receive him or to any country to which he consents to be removed if the government of that country agrees to receive him.

(4) A person in charge of a conveyance going to a country to which a person is to be removed shall receive that person on board and on proper payment being made convey him to that country and give him accommodation and maintenance during the passage.

(5) Subject to Section 14, the cost of the passage, accommodation and maintenance provided in accordance with Subsection (4) shall be paid by the person removed and the Minister may apply money or property of the person removed in payment of the whole or part of that cost, or if the Minister thinks fit, the whole or part of the cost shall be borne by the State.

35. Sections 3 and 4 of the Act clearly requires all non-citizens and non-exempt persons are to apply for an entry permit, where on satisfaction of the legal requirements, they may be issued with an entry permit. This permit may be issued before or after entering the country.

36. Whilst section 10 provides for the prevention of unlawful presence of persons in contravention of the Act. That is, where a person has entered or remained in contravention of the Act, the Act empowers an immigration officer to obtain a removal order for that person.

37. And section 13 gives the Immigration Minister the discretion to order the removal of a person whose presence in the country is unlawful.

38. It follows therefore that, for the Minister’s act or actions to be deemed harsh, oppressive and therefore illegal or unlawful, the actions of the Minister or his officers essentially, should involve or give rise to a complaint that the Minister and his Officers’ decision was one which no reasonable body could have come to and that the Minister’s discretion was not exercised in accordance with the prevailing Immigration policy and objects of the Migration Act 1978.

39. In Premdas v State (supra), Prentice CJ in considering Section 41 of the Constitution, said:

“I consider that, giving s. 41 a fair and liberal meaning as the court is instructed to do by schedule 1.5(2) of the Constitution, it should be regarded as of general application. The criteria put forward in the section are clearly questions of fact. Both counsel concur in the submission that in assessing the quality of the relevant facts, the test should be an objective one. I feel that the test should be to question whether the Minister and the Committee acted as reasonable men in the circumstances, having regard to the policy of the act on the one hand and the various provisions of the Constitution on the other.”

40. It is clear from that passage that, in deciding on whether an act or actions of an executive person or body is illegal or unlawful, one must have regards to the facts at hand and those facts must show that the conduct of the executive person or body and his officers must be so outrageous.

41. And in the case of Chief collector of Taxes v Bougainville copper Limited [2007] SC853, the Court, at para. 107, stated:

“What appears clearly from these authorities is that, whether an act or conduct is harsh and oppressive is dependent on the relevant facts giving rise to a claim of harsh and oppressiveness. The person making the claim has the burden to establish his or her claim by appropriate evidence.”

42. In the case before us, we are not persuaded by the respondent’s argument that the actions of the Minister or his officers were harsh, oppressive, and not warranted because there is absolutely nothing to show that the Minister or his officers acted in ways contrary to immigration policy and the Migration Act 1978 to sustain the argument that their actions were harsh, oppressive and thus unlawful.

43. On the other hand, we agree with the appellants ‘arguments. It is an undisputed fact that, at all material times prior to the grant of a stay of the removal orders by the National Court, the Respondent was in the country without being granted an entry permit. His presence in PNG was in contravention of existing laws and regulations. His status was that of an illegal immigrant. He knew of the nature and reasons for his arrest as an illegal immigrant. He was accorded due legal process and appeared in a District Court which found him to have been in the country in contravention of the Migration Act 1978.

44. He did not appeal his conviction in the District Court, and at the time of the deportation order was awaiting repatriation to his country of origin. This is the process that applies to all non-citizens who enter the country without an entry permit. As the respondent was an illegal immigrant, the actions of the Minister and his officers, in our view, followed the law, and they had even given the Respondent greater latitude than he is entitled to. In the circumstances, the Minister’s actions could not be considered harsh, oppressive, and unwarranted, but rather reasonable and therefore lawful in the circumstances.

45. The second category of grounds of appeal is upheld.

Did the National Court err in making orders for: firstly, the release of the Respondent from custody and secondly, for the Second and Third Appellants to issue the Respondent an entry permit for a period of three years? (Ground 3 (d), (e) and (k))

46. As to the order releasing the respondent from custody, the appellants argue that the respondent was kept in custody pending arrangements for his deportation. His detention was made in accordance with Section 13 of the Migration Act for a good reason. The reason being, he entered the country without a visa or permit. It is argued, for the Court to order his release when he has no entry permit is wrong.

47. As to the order directed at the second and third appellants to issue the respondent an entry permit, relying on the case of Curran v The State; Minister for Foreign Affairs; Marsipal, Narokobi and Waka, as Members of a Ministerial Committee of Review [1994] PNGLR 230, the appellants argue that the power to issue or refuse issuance of a permit is an executive power under the Migration Act and cannot be exercised judicially. It is argued, the court may review but it cannot grant or direct the issuance of a visa or permit.

48. In response, firstly, with respect to the order for release of the respondent, the respondent argued that the learned trial judge did not err in law and in fact when he ordered the respondent to be released from custody. The circumstances were such that such an order made was necessary and just given the peculiar circumstances of the respondent's case.

49. As to the order for the issue of the entry permit, it is argued that the learned trial judge sitting at the National Court had wide unlimited powers under Section 57 and 155 (4) of the Constitution as given under Section 166 of the Constitution, to make orders as were necessary and just given the particular circumstances of the case. Hence the trial Judge did not err in law and in fact in ordering the Second and Third Appellant to issue the Respondent with an entry permit by 29^th April 2020 for a period of three years with conditions. Such an order was necessary, lawful and just, given the fact that the Minister has already issued an order for the Respondent's removal from the Country without considering and taking into account the peculiar circumstances surrounding the Respondent.

50. The Migration Act provides for the issuance of an entry permit, and for those without any, they are subject to the process set out in sections 7, 10, 12, and 13 for apprehension, incarceration and removal from the country.

51. Then, Section 19 of the Migration Act 1978 provides:

SECTION 19. NO APPEAL AGAINST DECISION OF MINISTER, ETC.

(1) Without limiting the generality of Subsection (2), the expression “review or challenge” in that subsection includes–

(a) a writ of certiorari, prohibition or mandamus or other form of prerogative writ, or other writ, order or process in the nature of such a writ; or

(b) proceedings by way of appeal or for a writ, order or process referred to in Paragraph (a) (including proceedings for an order nisi or to show cause why relief should not be granted).

(2) An act, proposed act or decision of the Minister relating to the grant or cancellation of an entry permit or to the removal of a person from the country, or any decision of a Committee of Review under Section 6, is not open to review or challenge in any court on any ground.

52. It is trite that, courts are duty bound to apply and follow the law, until and unless it is declared invalid by a superior court.

53. In the case of State v Tamate [2021] SC2132, the Court held among other things that:

“The power of the National Court to protect or enforce any actual or imminent or reasonably probable infringement of the guaranteed rights and freedoms of a person by an order and/or declaration under s. 57(1), (3) and (6) of the Constitution is not absolute or unlimited but is, in addition to, and not in derogation of, its jurisdiction, powers and functions vested in it and other authorities under any other provision of the Constitution, an Act of Parliament or any other law.” [emphasis ours]

54. Having had regard to that position which we accept, it follows therefore that the National Court had issued the orders per incuriam, and that in doing so had exceeded the limitation placed on the court’s powers, by the Supreme Court.

55. Based on that, we agree with the appellants that, the court had no powers to issue the two orders firstly for the release of the Respondent, and the subsequent order to issue him with a three-year entry permit.

56. We also agree with the appellants that, the power to issue or refuse issuance of a permit is an executive power under the Migration Act that cannot be exercised judicially. The court may review but it cannot grant or direct the issuance of a visa or permit. (Curran v The State; Minister for Foreign Affairs; Marsipal, Narokobi and Waka, as Members of a Ministerial Committee of Review [1994] PNGLR 230.

57. The argument by the respondent that, the learned trial judge sitting at the National Court had wide unlimited powers under Section 155 (4) of the Constitution to make orders as were necessary and just given the particular circumstances of the case, in our view is flawed. Whilst the Supreme Court has consistently ruled that a person is guaranteed the rights to review under section 155 (4) of the Constitution, this right is qualified. It does not give the court power to waive the requirements to comply with the requirements of an Act or statute (See Application by John Mua Nilkare, Review Pursuant to S155(4) of the Constitution [1997] PGSC 20; [1998] PNGLR 472; Aihi v The State (No 1) [1981] PNGLR 81). In the Avia Aihi (supra) case Per Kapi DCJ at page 107 stated:

"In determining whether a person has the right and whether the Supreme Court has the power, this has to be determined in accordance with the law on the subject. In my opinion these matters cannot be determined under s 155(4). The orders that can be sought under such general provision are too numerous; it is difficult to see how this provision can cover all of them....

Can it be argued that under s 155(4) it would do justice to extend time because it was not her fault that she did not apply within forty days? In my view this cannot be so. ‘Justice’ under this provision means justice according to law. This section is to be interpreted in the light of the doctrine of separation of powers under s 99 of the Constitution. The law making powers of the National Parliament have to be kept separate from the functions of the judiciary.

If this Court ruled that it can give a right to apply to the applicant under s 155(4) of the Constitution contrary to s 27 of the Supreme Court Act then this would have the peculiar effect in that this Court would have power to disregard or override clear provisions of the statutes. This, in effect, would amount to amendment or repeal of legislation by judicial power. Such an interpretation would put this Court above the legislature and it could make orders against the clear provisions of legislation if it thought the legislation was unfair or did not do justice."

(emphasis ours)

58. The third category of grounds of appeal is upheld.

Did the National Court err in its finding that the Respondent was denied natural justice in that he was not given the opportunity to be heard on the question of his deportation? (Ground 3 (h))

59. The appellants argue that under the Migration Act, the Respondent had no right to be heard or make any representation on the question of his deportation. The question of deportation rested solely on the Minister. Thus, a person need not be heard on the question of an order for deportation, (Premdas v. The State [1979] PNGLR 329) as there is no such right. As to the charge of unlawful entry laid against the respondent, it is argued that he was accorded a fair hearing.

60. All that was said by the respondent on this issue is that he was not given an opportunity to be heard on the question of whether or not he should be deported.

61. The Supreme court in the Premdas v State (supra) held that the principles of natural justice do not apply in proceedings under the Migration Act 1963 regarding the revocation of the entry permit of a non-citizen and an order for deportation.

62. The rationale for the majority conclusion reached in the Premdas case, was to apply the intent of the Constitution giving the Sovereign State control over aliens and non-nationals within the country. That can be seen in the judgment of Chief Justice Prentice when considering whether the Minister's and the Committee's acts were unlawful under s. 41 of the Constitution. At the top of page 346 of the relevant volume of the Law Report, the Chief Justice said:

“Both the Minister and the Committee acted lawfully in my opinion. That I believe they could each have acted more advisedly and with greater apparent regard to fairness and proprieties, an end which no doubt would have been furthered by a public hearing at which the applicant was allowed to make personal representation is not in my opinion, to the point. They had acted within well understood principles as to a sovereign State’s maintaining control over the activities of aliens within its borders. I do not consider the revocation of entry permit and order for deportation to have been shown to be harsh or oppressive, even having regard to the professional contract which the applicant held. Nor do I regard it as unwarranted by or disproportionate to the requirements of the particular case.”

[underline ours]

63. We agree with and adopt the statement underlined as having relevance and application to the matter before us which raise similar issues. However, in Premdas and Raz v Matane, the respective courts dealt with issues involving persons whose entry permits were revoked by the State.

64. Whereas in the case before us, the respondent is an illegal immigrant. It follows therefore that, the actions by the immigration minister to deport him are necessary for the State to exercise control over undocumented non-nationals, like the respondent in PNG.

65. With respect, we agree with the appellants’ submission that the National Court was wrong in its finding.

66. The fourth category of grounds of appeal is upheld.

Did the National Court err in its finding that the Respondent was forcefully transferred from Australia to PNG in 2013 and unlawfully detained in Manus for 2 years and 6 months, in breach of his rights under Section 41 of the Constitution?

67. This category of grounds of appeal can be easily determined. What was before the National Court was a challenge to the Minister’s decision to deport the respondent. The question of whether the respondent was forcefully transferred from Australia to PNG and whether he was unlawfully detained in Manus, were not issues for determination before the National Court. By the time the matter was in Court, those events were overtaken. The respondent was processed and after a finding that he was not a refugee, he was sent back to his country of origin. The problem arose when he returned without an entry permit being granted. Without an entry permit, he was bound to be deported. Hence the decision by the Minister which led to the respondent filing the proceeding in the National Court.

68. With respect, we agree with the appellants that, the consideration by the National Court was irrelevant to the issue that was before it.

69. The fifth category of grounds of appeal is upheld.

Conclusion

70. All grounds of appeal are upheld. The appeal must be upheld, with costs.

Order

1. The Appeal is upheld.
2. The Judgment of the National Court of 16 April 2020 in HRA No. 228 of 2019 is quashed.
3. It is declared that the Respondent is illegally and unlawfully in country without a permit pursuant to Section 7 of the Migration Act 1978.
4. It is further declared that the Removal Order issued by the Minister for Immigration and Border Security on 9^th April 2019 is in full force and effect.
5. The Respondent is to be kept in custody until arrangements are made for his removal from the country pursuant to the Removal Order dated 9^th April 2019.

6. The Appellants’ cost of and incidental to the appeal shall be paid by the Respondent to be taxed if not agreed.
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Solicitor-General: Lawyer for the Appellants
Public Solicitor: Lawyer for the Respondent