|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO: 507 of 2001
PHILIP KIAN SENG LEE
Plaintiff
HON. JOHN PUNDARI, MP
MINISTER FOR FOREIGN AFFAIRS
First Defendant
EVOA LALATUTE
SECRETARY, DEPARTMENT OF FOREIGN AFFAIRS
Second Defendant
THE STATE
Third Defendant
WAIGANI : Kandakasi J
2001 : 18th September
9th November
ADMINISTRATIVE LAW – Application for leave for judicial review – Available statutory remedy not exhausted – Whether cancellation of PNG passport and having no PNG citizenship exceptional circumstances to avoid need to meet requirement that all available remedies be first exhausted before applying for case for judicial review – No exceptional case shown – Application declined – constitution ss. 67, 76 & 81 – Passports Act (Chp) s.13.
CITIZENSHIP – Recommendation by citizenship Advisory Committee not grant of citizenship – No citizenship without certificate of citizenship – Only citizens entitled to PNG passports – Cancellation of passport without prove of citizenship – Right of review against decision – Review Committee in better position to review decision – Constitution ss. 67, 76 & 81 – Passports Act s. 13.
Cases Cited:
Lawrence Bokele v. The Police Commissioner and The State (unreported 28th June 2001) N3005 at page 7.
Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417 at page 421.
Kekedo v. Burnsphilip (PNG) Ltd [1988-89] PNGLR 122.
Counsels:
J. Yagi, for the plaintiff.
L. Henao, for the defendants.
9th November 2001
KANDAKASI J: This is a application for leave for judicial review under Order 16 Rule 3(1) of the National Court Rules ("the Rules"). The first defendant ("the Minister") made the decision in question. He decided to cancel the plaintiff’s ("Mr Lee") PNG Passport, Entry Permit and reject a recommendation by the Citizenship Advisory Committee that Mr Lee be granted PNG citizenship. The Minister also ordered that Mr Lee be removed out of Papua New Guinea. All of these decisions were made on the 1st and 2nd of August 2001.
The defendants opposed the application on the basis that Mr Lee has not exhausted remedies available to him under section 13 of the Passports Act, chp. 17. The defendants also say that, if leave is granted, they have substantial arguments on the merits of the case against any review because no Certificate of Citizenship was issued and as such Mr Lee was not entitled to any PNG Passport or enjoy the privileges of a citizen. Section 81 of the Constitution was cited in support of that argument.
Mr Lee’s response to that is that, he could not utilize the remedy under s.13 of the Passports Act as his citizenship was revoked and that would operate against the Review Committee favourably dealing with his application for review under that section. In relation to having not being granted a Certificate of Citizenship under s.67 of the Constitution the Citizenship Advisory Committee did recommend he be granted citizenship in the exercise of its power under s.76 of the Constitution. Given his particular circumstances, Mr. Lee thus argues that, his case falls under the exception to the rule that all other available administrative remedies be exhausted first before resorting to leave for judicial review.
This case raises two important Constitutional and legal questions. These questions are:
The affidavit of Mr. Lee sworn on the 13th of August 2001 and filed on the 17th of August 2001, sets out the relevant facts in this case. In early 1997, the Citizenship Advisory Committee recommended Mr Lee be granted PNG citizenship along with several others. Mr. Lee says, he met all the requirements for citizenship under s.67 (2) of the Constitution. He did not in any form or shape bribe any government official, be it officers of the Department of Foreign Affairs and staff and any member of the Citizenship Advisory Committee to facilitate a recommendation for him to be granted PNG Citizenship. The recommendation or a copy of that is not in evidence.
Mr. Lee was not issued with a citizenship certificate under s.81 of the Constitution to confirm his citizenship. That continues to be the position at the present time.
Without having first obtained a certificate of citizenship, Mr. Lee applied for and obtained three different PNG Passports. According to a newspaper report, which is annexure ‘F’ to Mr Lee’s affidavit, his first PNG passport was issued on March 14th 1997. The second one was issued on July 17th 1997 and the third and final one was issued on May 23rd 1999. The respective passport numbers were 046609, 050012 & 081991A. At the time when Mr Lee first applied for citizenship, he was still a current holder of a Malaysian passport and a Thai passport, which confirmed his citizenship with those countries. At paragraph 28 of his affidavit, Mr. Lee says:
"The PNG Passport No. 046609 was issued to me on condition that I surrender my Malaysian passport and renounce my Malaysian and other citizenship which I complied and did sign the denunciation document."
He then annexes a copy of the denunciation document (annexure ‘S’) which specifically denounces his Malaysian citizenship and generally renounces his nationality and or citizenship of any other country and is dated 14th of March 1997, the same date the first passport was issued. There is however, no evidence of the conditions on which Mr. Lee says he was issued that passport.
In relation to the second passport, Mr. Lee says he lost the first one due to a robbery. He claims having reported it to police and with a police report he applied for a new passport. That resulted in the issue of the second passport. Again Mr. Lee does not annex any copy of his alleged report to police and the application for the second passport.
With regard to the third passport, Mr. Lee also claims that, he lost that passport and applied for a new passport and the third one was issued. He also claims that the second passport, which was allegedly lost, was later found and returned to him. He says, it neither occurred to him, nor was he advice by anyone that he should return the lost passport to the Immigration Office. He therefore, says he honestly believed that, based on immigration records of the Department of Foreign Affairs pertaining to his passport number 06609, it would have been cancelled or invalidated as a result of the issuance of the replacement passport number 050012. Again he does not annex copies of the information he provided to the authorities at the relevant time of applying for that passport.
The letter cancelling Mr. Lee’s passports dated 31st August 2001 and the various newspaper cuttings annexed to his affidavit as annexures ‘F’ to ‘J’ clearly show the allegations against him and the basis for cancelling his passports. They essentially show that, he was suspected of having obtained those passports by means of false and misleading statements within the meaning of s.12 (2)(f) of the Passports Act. It was therefore incumbent upon the plaintiff to provide copies of the relevant information he provided to the authorities at the time of applying for each of the three different passports to enabled this Court to determine whether or not there was basis for the decision resulting in the cancellation of his passports.
Mr. Lee’s counsel submitted that, most of his clients’ documents and records were taken by police under a search warrant and have not being returned despite a District Court Order by consent for that to happen. This submission is based on Mr. Lee deposing to police and other Department of Foreign Affairs Officials entering his premises under a search warrant on the 23rd of April 2000 and removing a number of items including his 3 PNG Passports, one Malaysian passport and one Thai passport. A list of the items that were removed from the plaintiff is set out in annexure ‘A’ to Mr. Lee’s affidavit. None of them include any copies of the passport applications or the conditions on which each of them were issued without first obtaining and having in his possession a certificate of PNG citizenship.
In relation to the decision to rescind and reverse the Citizenship Advisory Committee’s decision at its meeting held in Port Moresby on the 24th of January 1997, the Minister said
"My decision is based on the fact that you have failed to disclose full, accurate and honest information regarding your previous Nationalities and Citizenship."
The decision to cancel Mr. Lee’s entry permit (annexure ‘P’ to Mr. Lee’s affidavit) appears to be consequential on the other decisions.
Based on the decisions of the Minister, Mr. Lee’s was deported out of the country by Immigration and Police Officers on the 4th of August 2001.
Mr. Lee says he was deported without any prior notice or warning and the decisions he complains of were arrived at without having heard him. The sudden deportation put his business and personal interest in jeopardy including his wife who is an automatic PNG citizen and a child, aged, about 8 years now, who was born in PNG.
He says he was placed on an Air Niugini flight to Singapore and than on a Malaysian Airline flight to Kuala Lumpar. Upon arrival at Kuala Lumpar International Airport, Malaysian Immigrations Officials were not prepared to take him but on humanitarian grounds and out of compassion he was allow in to stay for a few days temporarily. There is also nothing to confirm this.
On the 17th of August 2001, he applied for interim orders seeking to restrain the defendants including the Police from preventing or prohibiting his return to the country and to go about his normal life as a citizen would do under the Constitution and the laws of Papua New Guinea. The orders also restrains the defendants from removing, expelling, deporting or take any action calculated to having the effect of a removal, expulsion or deportation of Mr. Lee out of the territory of the Independent State of Papua New Guinea. Those orders were granted by consent of the defendants pending final determination of the substantive proceedings. After a number of adjournments, the matter finally came before me for hearing on the 18th of September 2001 and upon having heard the arguments I reserve for ruling.
The relieves sought by the plaintiff are set out in the Originating Summons and in the statements in support, which I need not recite in any detail.
As I recently said in my judgement in Lawrence Bokele v. The Police Commissioner and The State (unreported 28th June 2001) N3005 at page 7:
"... the Court has the ultimate control over applications for judicial review. That is why leave is required. The Court can grant leave for judicial review only if it is satisfied that all the prerequisites and or the requirements for leave to be granted are met in a case before it. It follows therefore that, if the opposite is the case, than the application should be refused. Accordingly, in my view, leave can not and should not be granted readily because there is no objection or there is consent by the defendants as in this case. Instead, the court has the right and power to consider the application fully. If the materials disclose a prima facie or arguable case for judicial review, only then should the court grant leave.
The question of whether or not leave should be grant is determinable on the basis of the material produce and placed before the court."
In the present case, the defendants take issue on Mr. Lee’s failure to exhaust other available remedies before coming to this court for review. That argument proceeds on the basis of s.13 of Passports Act. The provision reads:
"13. Committee of Review"
(1) A person may, within 28 days after the receipt of the notice under s.12(3), by written application to the Prime Minister request that the decision of the Minister be reviewed by a Committee of Review.
(2) The Prime Minister shall, on the receipt of an application under Subsection (1), as soon as practicable, appoint a Committee of Review, consisting of three Ministers one of whom shall be appointed to be the Chairman, to consider the application.
(3) On the appointment of the Commission of Review, the Minister shall submit to the Committee the reasons for his decision and all information relevant to the applicant.
(4) The Committee of Review may, if it considers necessary, request or permit the applicant to appear or to make written representations before it.
(5) After considering the application and information submitted to it in accordance with Subsections (3) and (4), and after making any inquiries or investigations it considers necessary, the Committee or Review shall either confirm or revoke the decision of the Minister.
(6) The Committee of Review shall report its decision to the Prime Minister who shall inform the applicant accordingly.
(7) Where by its decision, the Committee or Review has revoke the decision of the Minister, the Minister shall, as soon as practicable take all such actions as may be necessary to implement it."
Section 14 is also relevant and that provides:
"14. Appeal against decision of Committee
Subject to s.155(5) (the national judicial system) of the Constitution, a decision of the Committee of Review under s.13 is not open to review or challenge in any court on any grounds."
One of the cardinal principles that is considered relevant and important when an application for leave for judicial review is made is the need to exhaust any or all available administrative remedies. That rule is designed to ensure that the judicial review process is used only as the last resort after an interested party has exhausted all available avenues or remedies before resorting to the courts for judicial review. This position is well entranced in our jurisdiction and the law is now considered well settled.
The first reported case in Papua New Guinea is the Independence State of Papua New Guinea v. Kapal [1987] PNGLR 417. Kidu CJ (as he then was) and Woods J (now retired) correctly stated the principle in this terms at page 421 of the Judgement:
"One of the fundamental rules in relation to judicial review is the question as to whether the applicant for judicial review has exhausted other remedies provided by law, eg, statutory provisions for appeal. Generally, it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been exhausted.
...
This rule is subject to cases where facts and circumstances show that judicial review is more appropriate or convenient to do justice."
The principles enunciated in the above case were adopted and applied in the subsequent case of Kekedo v. Burnsphilip (PNG) Ltd [1988-89] PNGLR 122. One of the questions that arose in that case was whether the existence of an alternative statutory remedy can oust the judicial review jurisdiction of the Court.
The Supreme Court ruled that, the existence of an alternative remedy does not oust the inherent supervisory review jurisdiction of the Court in the absence of any express words of the legislature taking away the judicial review jurisdiction of the Court. However as a general rule, the Supreme Court held that the judicial review jurisdiction would not be exercise readily where other remedies are available. Than upon a review of the relevant authorities, the Supreme Court setout the following as factors for consideration in cases where there exist a statutory review or appeal process:
"(a) The public policy considerations behind particular legislative enactments;
(b) The socio-political circumstances and aspirations of the country;
(c) The practicalities of the procedures for judicial review and statutory review such as speed of hearing; and
(d) Whether the matter depends on some particular or technical knowledge which is more readily available to the statutory review body."
In the case before the Supreme Court, the Court held that, the legislative intent behind the Employment of Non-Citizens Act (Chapter No. 374) was to oversee the employment or continued employment, cancellation and termination of employment of non-citizens, through administrative structures and remedies. That required the available procedures and remedies be exhausted first before an application for judicial review can be allowed.
The Supreme Court in the words of Amet J (as he then was), at page 127 with whom the Deputy Chief Justice Sir Mari Kapi and Cory J (as he then was) agreed said in relation to coming within the exception to the general rule that, all available remedies be exhausted:
"I do not consider that any exceptional circumstances exist in this case not to adhere to this general rule. The appeal is provided for within fourteen (14) days. Termination is also required to be effected within fourteen (14) days of notification of cancellation of the work permit. I consider that even appeal to the Minister is not able to be disposed of within 14 days or by the end of the 14 days period, than an application for stay of enforcement of termination can be made to the court. No loss would be suffered in these circumstances. If the appeal is unsuccessful, than the aggrieved person as a recourse to superior courts. His or her rights are ably protected."
I find the present case similar to the Kekedo (supra) case. In that case, the legislation under consideration was the Employment of Non-Citizens Act. That Act was intended to control and to regulate the employment of non-citizens. Parliament having considered all things provided for the way in which decisions made by officers of the relevant department could be reviewed by the administrative heads before it could go to the courts for review under 155(5) of the Constitution.
In this case, it involves the Passports Act and provisions of the Constitution as well as the Citizenship Act. The intend of Parliament in my view in these legislation is to control and regulate the way and manner in which Papua New Guinean passports should be issued to its citizens. Than in the case of citizenship, the legislative provisions including those of the Constitution are important as they provide for the way, manner and the basis or grounds on which a foreigner can gain PNG citizenship.
Passports are issued to people by the relevant State authority to persons it considers fit and proper to be issued with such a document to enable him or her to travel out of the country. When a holder of a PNG passport travels out of the country he or she is not just travelling as a person but is travelling as a Papua New Guinean. Consequently, whatever conduct he or she engages in will be reflective of the Independent State of Papua New Guinea. Given that importance, Parliament having considered all things relevant enacted, the provisions of section 13 and 14. It allowed for a process through which a decision concerning the cancellation of a PNG passport could be reviewed.
Section 13 gives a person affected by such a decision, 28 days to write to the Prime Minister requesting that the decision of the relevant Minister be reviewed by a Committee of Review. Upon receipt of such an application, the Prime Minister is obliged as soon as practicable, to appoint a Committee of Review consisting of three Ministers one of whom must be appointed to be the Chairman to consider the application. On the appointment of the Committee, the Minister is obliged to submit to the Committee the reasons for his decision and all information relevant to the applicant. The Committee is than empowered to hear and receive such evidence, as it considers appropriate including a requirement for the applicant to appear or to make written representations on his behalf. After that process the Review Committee would than arrive at a decision and communicate that to the Prime Minister who is then obliged to inform the applicant of the decision.
The next section, section 14 then specifically provides that subject to the National Judicial Systems review powers under s.155 (5) of the Constitution a decision of the Committee under s.13 is not open to review or challenged in any court on any ground. As was found in the Kekedo case (supra), the Review Committee under s.13 may readily have excess to information and material a Court cannot easily have access to. Courts only operate on material provided or admitted into evidence by the parties. In some instances parties always experience delay in getting the appropriate information. This results in further delays and that means a delay in a quick disposal of judicial review cases. The Review Committee on the other hand inquires into the exercise of its power under s.13. It would have access to material that may otherwise not be admitted in a court of law because of the rules of evidence.
Notwithstanding this, Mr. Lee submits his case is exceptional and that judicial review is the appropriate remedy. He says his case is exceptional because of the fact that his citizenship has been cancelled and as such, he will be without status and that his review application will not be given a favourable hearing. I do not find persuasion in that submission for a number of reasons. First, the matters I have just stated above, makes it more appropriate for Mr. Lee to exhaust the review procedure provided for under s.13 of the Passports Act.
Secondly, if Parliament intended that there should be no review of a cancellation of passports issued to naturalized citizens such as the plaintiff in this case, who also loses his or her citizenship, Parliament could have made provision for it. There is however, no provision for that either in s.13 or elsewhere. Hence, in my view the submission if accepted would in effect amount to a rewriting of s.13 so as to provide an exception for naturalized citizens to be treated differently. This would run contrary to important constitutional principles such as equality of all citizens, which is called for both in the National Goals and Directive Principles Goal No. 2 and s.55 of the Constitution. It is settled law that, when the courts come to deal with the interpretation of statutory provisions, they must proceed on the basis that Parliament makes no mistake. Accordingly, I find that, Parliament made no mistake in not providing any exception for naturalized citizens within the context of s.13 or for that matter, review of issue or otherwise of passports to naturalized citizens.
Thirdly, Mr. Lee has already decided for the Committee of Review under s.13 of the Passports Act as to what its decision should be, if he proceeds under s.13. It is also a well accepted position in our jurisdiction that, all persons vested with certain statutory powers exercise those powers on proper consideration having regard to the particular facts of the case because a failure to do so is open to review and stands the risk of being quashed. The only exception I know of where a party could quite rightly hold a view of a decision going against him or her is where there is some real good basis to show that the decision-maker is going to be biased. Nevertheless, even in that case, I am not aware of any law, which permits a party to go for judicial review simply because of a fear he, or she holds of an adverse decision against him or her if a remedy prescribed under a statute is not exhausted. Finally, Mr. Lee’s argument proceeds on the basis that he is in fact and as a matter of law, a citizen of PNG. There is no argument and indeed he admits to not having any certificate of citizenship following a recommendation by the Citizenship Advisory Committee that he be granted citizenship. This is obvious from his reliance upon s.70(2) of the Constitution. That provision reads:
"A person who is found by a court to have obtained citizenship by a false presentation, fraud or concealment of a material fact on his part loses his citizenship, unless the Minister responsible for citizenship matters is satisfied that the offence was of minor nature and that revelation to the true fact would not have affected the grant of naturalization."
It should however be noted that, this is only one way in which a person may lose his PNG citizenship. There are other grounds on which one’s citizenship may be lost. These are set out in subsection (1) of section 70 as follows:
"(1) A citizen who has reached voting age and is of full capacity who –
(a) obtains the nationality or citizenship of another country by a Voluntary Act (other than marriage), or exercise their right that is extrusive to nationals who citizens of another country, unless the Minister responsible for citizenship matters is satisfied that the right was exercise adversely; or
(b) she takes an oath or makes her decoration or affirmation of allegiants to another country; or
(c) to the Sovran or Head of State of another country; or
(d) does, agrees to or adopts any Act (other than marriage) by which he becomes a national or a citizen of another country; or
(e) he enters of serves in the arm forces of another country, except with the express approval of the Head of State, acting with, and in accordance with, the advise of the National Executive Council; or
(f) have except as remitted by an Act of Parliament, votes in a National, Provincial, State or Local Election, or excepts elective office, of another country; or
(g) subject to subsection 3, travels under the protection of a passport or purported passport of another country in which he is described as a citizen or national of that country. Loses his citizenship."
That provision however has to be read in my view subject to section 81 of the Constitution. That provision reads:
"81. Certificate as to citizenship.
(1) A person whose status or entitlement in relation to Citizenship of Papua New Guinea is, or may be, in doubt may apply to the Minister responsible for citizenship matters for a certificate under this section.
(2) If the Minister is satisfied that the applicant is, or is entitled to become, a citizen, he may, in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), grant a certificate stating that the person is or may become a citizen by virtue of a provision specified in the certificate.
(3) Subject to Section 76 (functions of the Committee), a certificate under this section is (unless it is proved that it was obtained by means of a false representation, fraud or concealment of a material fact) conclusive evidence that on the material date the person concerned was, is or may become a citizen in accordance with the terms of the certificate.
Subsection 3 of this section makes it clear that a certificate of citizenship once issued, is conclusive evidence of citizenship in accordance with the terms of the certificate.
In the present case, I raised with the plaintiff’s counsel, in the course of the hearing as to how his client could claim having obtained Papua New Guinean citizenship without a certificate. His response was that, for all intents and purposes, after the Citizenship Advisory Committee had recommended grant of citizenship to his client, he became a citizen thereupon, or soon thereafter. He than tried to elaborate on that by saying that, there was nothing further for the plaintiff to do except to wait for the certificate to be issued. He did not contribute to the delay in the issuance of the certificate. In the meantime, his client was quite entitled to apply for and obtain the various PNG Passports. I then asked counsel whether the Court should accept the suggestion for example a person who completes a Bachelor of Laws Degree at the University of Papua New Guinea and passes through Legal Training Institute but has not been issued with a certificate of admission is a lawyer for all intents and purposes, even though he has not yet been admitted and certified as a lawyer? Counsel’s response was in the negative. But for his client’s case he argued that once all the formal requirements and qualifications for citizenship were met there was nothing further to be done except for the issuance of the certificate and as such his client was entitled to proceed on that basis.
In effect Mr. Lee’s argument is for this Court to ignore the need for and the requirement for certification. This would open the flood gates not only in the area of citizenship, but also the process relating to the admission and certification of lawyers, accountants, doctors, architect and so on. An additional factor for consideration in this context, is that, at the time of applying for his first PNG passport Mr. Lee did not have a certificate or any proof of citizenship. Also he had not yet renounced fully his Malaysian and Thai citizenship’s evidenced by the fact that he had passports from those countries. The renunciation of those citizenship’s dated 14th of March 1997 was specifically in relation to his Malaysian citizenship and in general other nationalities or citizenship. There was no specific renunciation of his Thai citizenship. Further there is no evidence or explanation before me as to why he had in his possession those two passports from two different countries even after he was issued with a Papua New Guinean passport with the earliest on the 14th of March 1997.
Furthermore, he was alleged to have involved in illegal smuggling of people and falsifying or forging and processing of illegal documents such as passports, visas, which he acknowledges at paragraph 5 of his affidavit. Than at paragraph 14 of his affidavit, he says he will respond to each and every allegation and says he strongly refutes each of those allegations and any insinuation arising therefrom. He however, does not provide any evidence forming the basis for the position he takes. This is more serious in my view given the number of passports and other documents the police and immigration officials took from his premises under the Search Warrant set out in annexure ‘A’ of his affidavit. As to what became of those documents are fully within the knowledge of Mr. Lee and the Department of Foreign Affairs and the relevant officers. As I already indicated this court will only be entitle to rule and or consider this matter only on the basis of the material provided before it. However the same would not be the case for a review under s.13 of the Passports Act.
The plaintiff had the opportunity to go before the Review Committee but has not taken that option. I am not satisfied that this case
presents exceptional circumstances to depart from the general rule that all available administrative remedies be first exhausted
before going for judicial review. I am therefore disinclined to grant leave. Accordingly I order a dismissal of the application with
costs.
_______________________________________________________________________
Lawyer for the Plaintiff : Yagi Lawyers
Lawyer for the Defendants : Henao Lawyers
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2001/73.html