Jamil Muhammed Abdullah v Dr Iqbal Yaseen, Parai K Tamei, Chairman Task Force and Secretary Department of Foreign Affairs (2001) N2195

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 17 August 2001
• Court: National Court
• Citation: [2002] PNGLR 133
• Year: 2002
• Judgement Number: N2195

Full Title: Jamil Muhammed Abdullah v Dr Iqbal Yaseen, Parai K Tamei, Chairman Task Force and Secretary Department of Foreign Affairs (2001) N2195

National Court: Sevua J

Judgment Delivered: 17 August 2001

N2195

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 1136 of 2001

BETWEEN

JAMIL MUHAMMED ABDULLAH

Plaintiff

AND

DR. IQBAL YASEEN

First Defendant

AND

PARAI K. TAMEI

CHAIRMAN TASK FORCE

Second Defendant

AND

SECRETARY

DEPARTMENT OF FOREIGN AFFAIRS

Third Defendant

Waigani : Sevua, J

2001 : 15th, 16th & 17th August

Administrative Law – Immigration and aliens – Deportation order – Application to stay enforcement of deportation order – Applicant has civil suit pending in National Court and is required for police investigation into human smuggling racket – Police investigation completed – Pending civil suit in National Court not good reason to stay deportation order.

Immigration and aliens – Deportation order – Applicant entered country illegally thus an illegal immigrant – Sought equitable relief – Not come with clean hands.

Held:

1. The plaintiff is an illegal immigrant whose status is a ‘persona non gratia’ liable to deportation by the State.

2. The plaintiff being an illegal immigrant did not come with clean hands to seek equitable relief.

3. The power to order a deportation is vested in the Minister for Foreign Affairs by virtue of Section 12 of Migration Act and is an executive act, not a judicial act requiring the exercise of a judicial power.

4. A pending civil suit cannot be used as the basis for the continued unlawful pressure of the plaintiff. It is not a good reason in law to stay a valid deportation order.

Cases cited:

Bruce Botha v. Roy Yaki, Minister for Foreign Affairs, N.1876, unreported, 23rd April 1999.

Dirk Leopold Schuiling v. Alphonse Krau [1977] PNGLR 176.

G. Epo & A. Manu for Plaintiff

A. Furigi for First Defendant

J. Kawi & A. Sampson for 2nd and 3rd Defendants

17th August, 2001

SEVUA, J : The plaintiff is the subject of a deportation order issued by the Minister for Foreign Affairs on 5th July 2001. The deportation was not executed because the plaintiff was assisting police investigation into an alleged human smuggling racket.

On 15th August 2001, the plaintiff filed a writ of summons (WS 1136/2001) the subject of proceedings against the first defendant, Dr. Iqbal Yaseen, in which he alleged that the first defendant and other persons owed him monies. The plaintiff also filed a notice of motion on the same date seeking orders, inter alia, that the defendants be restrained from deporting him.

The motion was to be heard exparte on Wednesday morning, 15th August, however, I directed that it be dealt with inter partes. So the plaintiff moved his motion on Wednesday afternoon. The application was adjourned to this morning and the Court directed officers of the Foreign Affairs Department and the Police Force to file affidavits. Those directions have been complied with and the Court has had the benefit of reading affidavits sworn by Leonard Louma, Acting Foreign Affairs Secretary, and Parai Tamei, Chairman of Task Force Investigation Team into abuses of the Migration Act. The Court has also had the benefit of assistance from the Police Force, through the affidavits of Acting Police Commissioner, Joseph Kupo, and Director, Criminal Investigations Division, Chief Superintendent Thomas Eluh.

When this matter resumed this morning, the plaintiff’s counsel, Mr Epo, continued with the plaintiff’s motion and sought the orders his client is seeking, in particular, the injunction to restrain the defendants from deporting his client. The grounds for the application were reiterated as firstly, the plaintiff was still required in the country as a material police witness in respect of criminal charges laid against the first defendant, Dr. Yaseen. Secondly, he has filed proceedings to recover monies he claims to be owing and due to him.

Having considered all the affidavit evidence before me and the submissions by Mr Epo, Mr Kawi and Mr Furigi, this Court is of the view that both, on the facts of this case, and in law, there is no basis for the injunction being sought by the plaintiff.

It is a fact that the plaintiff was a material witness in the police investigations into the human smuggling racket. However, there is no dispute that the plaintiff has already given evidence against the first defendant at the Boroko District Court on 14th August 2001. There is also no dispute that the plaintiff is no longer required as a witness in the criminal proceedings...