In The Matter of Section 42 (5) of the Constitution and In The Matter of the Application of Lou Bei v Dominic Ampao’i Director of Enforcement & Compliance PNG Immigration and Citizenship Service and David Tibu Secretary for Labour & Employment and National Fisheries Authority and Chief Superintendent Joseph Poma Provincial Police Cpommander Milne Bay Province (2010) N3826

• Jurisdiction: Papua New Guinea
• Judge: Sevua, J
• Judgment Date: 21 January 2010
• Court: National Court
• Citation: (2010) N3826
• Docket Number: MP 63 of 2009
• Year: 2010
• Judgement Number: N3826

Full Title: MP 63 of 2009; In The Matter of Section 42 (5) of the Constitution and In The Matter of the Application of Lou Bei An v Dominic Ampao’i Director of Enforcement & Compliance PNG Immigration and Citizenship Service and David Tibu Secretary for Labour & Employment and National Fisheries Authority and Chief Superintendent Joseph Poma Provincial Police Cpommander Milne Bay Province (2010) N3826

National Court: Sevua, J

Judgment Delivered: 21 January 2010

N3826

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP 63 of 2009

IN THE MATTER OF SECTION 42 (5)

OF THE CONSTITUTION

AND IN THE MATTER OF THE APPLICATION

OF LOU BEI AN

Applicant

AND:

DOMINIC AMPAO’I

DIRECTOR OF ENFORCEMENT & COMPLIANCE

PNG IMMIGRATION AND CITIZENSHIP SERVICE

First Respondent

AND:

DAVID TIBU

SECRETARY FOR LABOUR & EMPLOYMENT

Second Respondent

AND:

NATIONAL FISHERIES AUTHORITY

Third Respondent

AND:

CHIEF SUPERINTENDENT JOSEPH POMA

PROVINCIAL POLICE CPOMMANDER

MILNE BAY PROVINCE

Fourth Respondent

Waigani: Sevua, J

2009: 6, 10, 19 & 27 March

30 June

2010: 21 January

CONSTITUTIONAL LAW – Application for enforcement of constitutional rights - Section 42 (5) Constitution – Allegations of unlawful and unconstitutional detention – Applicant arrested, charged and detained for several offences including an attempt to export goods to Singapore illegally – Offences charged under Fisheries Management Act and Customs Act – Detained and released on bail – Re-arrested over additional charges and subsequently released on bail – Whether his detention was unlawful and unconstitutional.

CONSTITUTIONAL LAW – Application for enforcement of constitutional rights - Allegation of unlawful and unconstitutional detention – Applicant detained under Immigration Detention Order – Whether such detention unlawful and unconstitutional.

Held: - 1. The applicant was arrested, charged and detained in respect of several charges laid under the Fisheries Management Act and the Customs Act. His detention in respect of those charges was lawful and constitutional.

2. The applicant’s detention under an Immigration Detention Order, issued by the first respondent was lawful and constitutional.

3. Where a non-citizen who is issued with a work permit and

a corresponding entry permit relating to that work permit is terminated from his employment and his work permit cancelled, his entry visa is automatically cancelled and becomes invalid. His right to remain in the country is expired and therefore he becomes a persona non gratia, liable to prosecution or deportation or both.

4. The applicant’s application for a release with or without

conditions is declined.

Case cited in Judgment:

Jamil Muhammed Abdullah v. Dr. Iqbal Yaseen & Ors, N.2195, 17 August, 2001

Legislation Cited:

Constitution, 42 (i)(g);(5) (a) and (b); 195 (i)(a)

Employment of Non-Citizens Act, s.10

Migration Act, s.2; 3A; 5; 6 (1); 7 (1) (a); 10 (2) (c); 12

Fisheries Management Act, s.31; 46 (1) (a) (b)

Fisheries Management Regulations, s.4; 15 (1); 16; 31

Bechedemer Management Plan, s.7 (a) (i) (c)

Customs Act, s.126; 149 (1)(a)

Counsel:

J. Kusip, for Applicant.

F. Kuelinad, for First & Second Respondents

T. Elemi, for Third Respondent.

No Appearance for Fourth Respondent

21 January, 2010

1. SEVUA, J: The applicant has applied for the following principal relief –

1. An Order that pursuant to Section 42 (5) Constitution, he be brought before the Court to inquire into his unlawful and unconstitutional detention.

2. An Order that pursuant to Section 42 (5) Constitution, he be released forthwith from custody unconditionally or subject to such conditions as the Court thinks fit.

2. The application was filed on 25 February 2009 and first came before this Court on 6 March 2009, ex parte. It was adjourned to 10 March and the Court issued several orders including an order that the applicant be transferred from Alotau to Port Moresby.

3. At the outset, it is necessary to outline the facts in this application to explain why and how the respondents were ordered to appear in Court to respond to the applicant’s allegations.

4. This application first came before me ex parte at Waigani on 6 March 2009 and was adjourned to 10 March following the issuing of several orders. When the matter returned on 10 March, the Court noted from the documents already filed by the applicant that he had made serious allegations against certain people in certain Government institutions.

5. Those allegations were either made against, or implicated Police in Alotau, especially the Provincial Police Commander (PPC), Chief Superintendent Joe Poma; The Secretary for Labour and Industrial Relations; National Fisheries Authority, Customs, and Mr Dominic Ampa’oi, Director Enforcement and Compliance PNG Immigration and Citizenship Service, Department of Foreign Affairs, Trade and Immigration.

6. On that basis, and since the Court was of the view that they had an interest in this case, it was necessary for their appearance so that they can be heard in this application. Accordingly, they were ordered to appear on 19 March 2009 when the matter next would return to this Court.

7. Thus on 19 March 2009, Mr. Hodges Ette appeared for the PPC of Milne Bay; Mr. Copeland Raurela appeared for National Fisheries Authority, Mr. Dominic Ampa’oi appeared in person, and Dr Rona Nadile appeared on behalf of the Secretary for Labour and Industrial Relations.

8. The evidence in this case establishes that the applicant was initially employed by Lagimu Rua Holdings Limited, a local company based in Alotau, Milne Bay Province. The Department of Labour and Industrial Relations issued Work Permit No 08060030 to the applicant on 7 June 2005, which was valid till 30 June 2008.

9. An application by the company to renew the applicant’s work permit in June 2008 was refused by the Secretary for Labour and Industrial Relations who has the power to refuse an application. The refusal was based on serious complaints and or allegations against the applicant by various State institutions including, Milne Bay Provincial Government and Administration, National Fisheries Authority, Police, Immigration, National Intelligence Organization, various legal firms and a number of private citizens in Milne Bay Province.

10. That refusal led to court proceedings instituted by the applicant. For reasons not relevant to this case, the application for renewal was granted on 23 June 2008 and the applicant was issued with Work Permit No 11060057 valid till 30 June 2011. Against that work permit, Work Entry Permit (Entry Permit) No 99902045944 was issued and was valid till 30 June 2011.

12. There is no evidence before the Court of the original work permit with the original entry permit which were said to be valid till 30 June 2008.

13. On 10 December 2008, the Secretary for Labour wrote to the applicant asking him to show cause why his work permit should not be cancelled.

14. In the meantime, on 8 December 2008, Lagimu Rua Holdings Limited terminated the applicant’s employment and advised the Secretary accordingly.

15. On 16 January 2009, the Secretary advised the applicant in writing that his work permit had been cancelled because of the complaints against him and also because his employment with Lagimu Rua Holdings Limited had been terminated. The Secretary advised the company to repatriate the applicant to his country, Singapore. At, or around the same time, a copy of the written termination of the applicant’s work permit was delivered to Mr. Joseph Nobetau, Acting Chief Migration Officer, PNG Immigration and Citizenship Service.

16. According to the applicant, his arrest and the subsequent charges laid by police in Alotau were in connection with his employment with another company, Bomatu Holdings Limited, also based in Alotau. He said he was employed as a consultant although he was not a shareholder or director of that company.

17. Apparently, from the applicant’s evidence, Bomatu Holdings Limited was the new name for Lagimu Rua Holdings Limited. The change of name was approved by the Registrar of Companies on 23 October 2008. However, it is quite interesting to note that the sole shareholder/director of Lagimu Rua Holdings Limited, Mrs. Veronica Tolo’ube, did not know anything about that change and did not authorise the applicant to effect the company name change.

18. As she puts it in her letter dated 8 December 2008 to the National Fisheries Authorities and copied to the Secretary for Labour and others:

“To conclude, Mr. Lou is currently an illegal alien carrying on illegal business using a national company as FRONT without the consent of the company owners.”

19. That letter is Annexure “D” to the affidavit of Dr Rona Nadile sworn on 23 March 2009 and filed on 24 March 2009.

20. If the new company was to have new shareholders and directors, Mrs. Tolo’ube did not consent or authorize that. From the same evidence, the new shareholders and directors are Emmanuel Lufoava and Wellington Eric. It is to be noted also that Emmanuel Lofoava is the complainant in this matter. But there is no evidence of any formal transfer of shares from Mrs. Veronica Tolo’ube to Emmanuel Lofoava and Wellingtom Eric, both of whom seem to feature prominently in this whole saga. There...