Behrouz Boochani v The State

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Salika DCJ and Hartshorn J
• Judgment Date: 13 March 2017
• Citation: (2017) SC1566
• Court: Supreme Court
• Year: 2017
• Judgement Number: SC1566

Full : SCAPP 17of 2016; Enforcement pursuant to Constitution section 57 Application by: Behrouz Boochani & 730 Others v The Independent State of Papua New Guinea and National Executive Council and Hon Rimbink Pato, Minister for Foreign Affairs & Immigration (2017) SC1566

Supreme Court: Injia CJ, Salika DCJ and Hartshorn J

Judgment Delivered: 13 March 2017

SC1566

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) 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:

1. “The asylum seekers or transferees brought to Papua New Guinea by the Australian Government and detained at the relocation centre on Manus Island by the Respondents is contrary to their Constitutional right of personal liberty guaranteed by s 42 of the Constitution and also ultra vires the powers available under the Migration Act”.

6. “Both the Australian and Papua New Guinea governments to take all necessary steps to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees at the relocation centre on Manus Island and the continued breach of the asylum seekers' or transferees' Constitutional and human rights'

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...