Brian Curran v The State, Minister for Foreign Affairs, Arnold Marsipal, Bernard Narokobi and Lucas Waka as Members of a Ministerial Committee of Review

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 06 July 1994
• Citation: [1994] PNGLR 230
• Court: National Court
• Year: 1994
• Judgement Number: N1259

National Court: Brown J

Judgment Delivered: 6 July 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BRIAN CURRAN

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA;

MINISTER FOR FOREIGN AFFAIRS; AND

ARNOLD MARSIPAL,

BERNARD NAROKOBI, AND

LUCAS WAKA AS MEMBERS OF A MINISTERIAL COMMITTEE OF REVIEW

Waigani

Brown J

23 March 1994

6 July 1994

CONSTITUTIONAL LAW — Proscribed acts — Right in the nature of a right of enquiry — Enforceability — Constitution ss 41, 166 (1).

CONSTITUTIONAL LAW — Section 41 action by foreign national whose visa had been cancelled and who was ordered to depart the country by the Minister responsible under the Migration Act Ch 16 — Relevant principles.

IMMIGRATION AND ALIENS — Alien — Order for revocation of entry permit — Applicability and right, if any, of review of the exercise of the Minister's powers to revoke under s 6 of the Migration Act — "Wednesbury unreasonableness" considered in that respect — Inapplicable — Proper test proposed.

Facts

The plaintiff was a foreign lawyer with a right of practice in Papua New Guinea whose entry visa was revoked by the Minister. He sought a declaration by the Court that the act of the Minister was "harsh and oppressive" within the terms of s 41 of the Constitution and, consequently, unlawful. He also claimed damages.

Held

1. The right to challenge an act in reliance on the provisions of the Constitution s 41 extends to the acts of the Minister and, consequently, a Ministerial Committee of Review appointed under the Migration Act where such acts are otherwise lawful. SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329 applied and followed. Premdas v State [1979] PNGLR 329 applied and followed.

2. The act of revoking a foreign national's visa to remain in the country and, consequently, ordering his departure is of an executive nature and not amenable to judicial review per se. An administrative remedy in terms of what is commonly called the "Wednesbury principle" is inappropriate. Raz v Matane [1986] PNGLR 38 not followed.

3. The proper test is to consider the justification for the Minister's acts, the effects of such acts, and, on balance, decide if Constitution s 41 applies.

Cases Cited

Papua New Guinea cases cited

LeBlanc v PNG (1992) unreported, unnumbered NC.

Premdas v PNG [1979] PNGLR 329.

Raz v Matane [1986] PNGLR 38.

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314.

SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329.

Other cases cited

A-G of Hong Kong v Shiu [1983] 2 AC 629; [1983] 2 All ER 346; [1983] 2 WLR 735; 127 Sol Jo 188, PC.

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680; 48 LJR 190; 177 LT 641; 63 TLR 623.

Birmingham & Midland Motor Omnibus Co Ltd v London & North Western Railway Co [1913] 3 KB 850; 83 LJKB 474; 109 LT 64; 57 Sol Jo 752, CA.

R v Brixton Prison Governor; Ex parte Havilde [1969] 1 All ER 109; [1969] 1 WLR 42.

R v Secretary of State for the Home Department; Ex parte Swati [1986] 1 All ER 717; [1986] 1 WLR 477.

Counsel

P Payne, for the plaintiff.

F Damem, for the defendants.

6 July 1994

BROWN J: This plaintiff was aggrieved by the decision of a Ministerial Committee of Review, appointed pursuant to the Migration Act Ch 16, confirming the cancellation of his entry permit. The Minister had made orders on 23 June 1992, cancelling the plaintiff's permit (visa) to remain in the country and ordering his departure. By notice of motion, the plaintiff comes to this Court pursuant to O 16 of the National Court Rules seeking judicial review. He is immediately faced with the provisions of s 19 (2) of the Migration Act, which precludes a review or challenge in this Court of the act of the Minister cancelling such entry permit and ordering his removal from the country. The plaintiff seeks to circumvent that hurdle by asking this Court for a declaration that the decision by the members of the Ministerial Committee of Review and the Minister's original decision were unlawful acts, proscribed by s 41 (1) of the Constitution.

"41. Proscribed Acts

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive; or

(b) is not warranted, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act."

The Supreme Court has ruled that a Ministerial Committee of Review decision and, by implication, a Minister's act can be examined when a plaintiff seeks to attract s 41 (see SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329). Mr Curran says that if this Court is satisfied that the circumstances of cancellation of his visa are "harsh and oppressive", orders in the nature of prerogative writs or other orders as are necessary to do justice in the circumstances of a particular case (see s 155 (4) of the Constitution) can be made. An order in the nature of certiorari quashing both the second and third defendants' decisions cancelling his entry permit and ordering his removal is consequently sought. In addition, the plaintiff specifically seeks an order for compensation.

In his amended statement, filed pursuant to O 16 r 3 (2) (a), the facts upon which the plaintiff seeks relief are set out. They are uncontradicted by the defendants, who appeared by Mr Damem, the State Solicitor.

FACTS

On 20 December 1991, the plaintiff was issued with a visa, pursuant to the provisions of the Migration Act, which permitted him to enter and remain in Papua New Guinea until 10 March 1993 for the sole purpose of employment with Blake Dawson Waldron, a firm of lawyers practising in Papua New Guinea. The plaintiff says that he had not breached the terms of this entry permit. The plaintiff alleges that he has, at all times, acted lawfully in Papua New Guinea. None of the defendants or officers of the Immigration Division interviewed the plaintiff before he was served with deportation orders. No statement was sought from him prior to the Minister's order of 23 June 1992, pursuant to s 6 (1) and 12 (1) of the Act, cancelling his entry permit and the Committee of Review's confirmation of the action on 15 July 1992. The Minister and the Committee had not informed the plaintiff of the nature of the allegations made against him before the confirmation. It was plain, however, that the reason for the Minister's act canceling Mr Curran's visa was related to Mr Curran's professional relations with Arthur LeBlanc.

COURT PROCEEDINGS

Mr Payne, for Mr Curran, sought to show the very fact that the Minister had neither charged Mr Curran with a breach of his visa conditions, nor given reasons for his action, was, of itself, sufficient to attract the provisions of s 41. Mr Damem, on the other hand, suggested that material relevant to the Minister's determination may have been lost and, in the event, this Court could presume that the Minister, if material other than that already before the Court was used, acted properly in only taking into account relevant material. I cannot agree with Mr Damem on that point. Nor can I agree with Mr Payne that the Minister's failure is determinative of the issue.

By notice to produce, dated 18 March 1994, the file of the Migration Department was brought to Court. That became an exhibit in these proceedings, such documents having been listed in the defendant's list of documents filed on 6 May 1993. The list of documents was supported by an affidavit as to conclusiveness. The general rule is that the affidavit of documents is conclusive and must be accepted as true by the parties seeking discovery. The principle is expressed thus:

"An affidavit of documents is sworn testimony which stands in a position which is in certain respects unique. The opposite party cannot cross-examine upon it and cannot read a contentious affidavit to contradict it. He is entitled to ask the Court to look at the affidavit and all the documents produced under the affidavit, and from those materials to reach the conclusion that the affidavit does not disclose all that it ought to disclose. In that case he can obtain an order for a further and better affidavit. Further, under the particular rule relating to a specific document... he may file an affidavit specifying further documents and calling upon the party making the affidavit of documents to account for them. But subject to these qualifications the affidavit of documents cannot be called in question, but must be accepted as correct." (See Birmingham & Midland Motor Omnibus Co Ltd v London & North Western Railway Co [1913] 3 KB 850 at 855).

The principle enunciated is reflected in O 9 of the National Court Rules. Mr Damem attempted to suggest in his address that the documents forming part of those discovered were not all the documents to which the Minister...