Marthinus Kambu for and on behalf of other 946 West Papua v Sir Pita Lus and The Independent State of Papua New Guinea (2010) N4437

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 12 October 2010
• Court: National Court
• Docket Number: OS 518 of 2009
• Citation: (2010) N4437
• Year: 2010
• Judgement Number: N4437

Full Title: OS 518 of 2009; Marthinus Kambu for and on behalf of other 946 West Papua v Sir Pita Lus and The Independent State of Papua New Guinea (2010) N4437

National Court: Salika, DCJ

Judgment Delivered: 12 October 2010

N4437

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 518 OF 2009

BETWEEN:

MARTHINUS KAMBU for and on behalf of other 946 West Papua

Plaintiffs

AND:

SIR PITA LUS

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Salika, DCJ

2010: 12 October

P RACTICE AND PROCEDURE – motion by first defendant to set aside orders of the Court restraining the first defendant from evicting the plaintiffs- first defendant as a private citizen allowed plaintiffs to settle at first- first defendant intends to develop land and therefore issued eviction notice- PNG government failed to meet international obligation as signatory to various refugee conventions - plaintiffs have no basis to be on private property except by the grace of the landlord - orders in terms of notice of motion filed on 26th October 2009 granted.

Counsel:

Mr T Yai, for the Plaintiffs

Mr B Frizzel, for the 1st Defendant

12 October, 2010

1. SALIKA DCJ: By a notice of motion filed on 26 October 2009 by the First Defendant through his lawyers, the First Defendant moved for orders that:-

“ 1. Pursuant to O.12 r.8 of the National Court Rules made orders on or about 2 October 2009 be set aside.

2. Pursuant to O.12 r. 40 of the National Court Rules these proceedings be dismissed.

3. Such or other orders deemed necessary.

4. Costs

5. Time for entry of these orders be abridged to time of settlement by the Registrar which shall take place forthwith.”

2. The facts in this matter are sensitive and perhaps needs the Executive Government’s intervention and assistance. This is because while PNG is a signatory to international treaties and conventions, treaties and conventions do not form part of PNG laws pursuant to s.117 of the Constitution. Moreover, the United Nations, the body responsible for the plight of the refugees has not said or done much to help these people. Having said that I now go on to address the facts surrounding this matter.

3. The principle plaintiff Marthinus Kambu is originally from the West Papua Province of Indonesia. Documents on file show that he was granted PNG citizenship on 19 June 1992. There is no evidence as to whether the other plaintiffs have been granted citizenship by the government of PNG. I raise this because while Marthinus Kambu is a PNG citizen the others are not and therefore the obligation of the PNG government to these people as they appear to be refugees. Marthinus Kambu is not a refugee and therefore the United Nations Convention and Protocol on the Status of Refugees do not apply to him. His standing in PNG is different from the other plaintiffs who may be genuine refugees.

4. I understand from my own limited research that PNG is a signatory to the Convention and the Protocols Relating To The Status of Refugees. PNG signed that Convention on 17th July 1986. I also understand that when PNG signed the Convention and the Protocols it did so with certain reservations on some of the Articles. This means that when it signed, it said that the PNG government would not be obligated to provide or fulfil or comply with those articles. Some of the Articles it had reservations on were Articles 21, 22, 26, 31, 32, 34. I will reproduce those for the benefit of the refugees and the public because it is not easily accessible to the refugees themselves and the general public. The particular ones are:

Article 21: HOUSING

As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstance.

Article 22 (1) PUBLIC EDUCATION

The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

Article 26 FREEDOM OF MOVEMENT

Each Contracting State shall accord to refugees lawfully in its territory the rights to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

Article 31 REFUGEES UNLAWFULLY IN THE COUNTRY OF REFUGEE

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugee who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Article 32 EXPULSION

The Contracting State shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting State reserve the right to apply during that period such Internal measures as they may deem necessary.

Article 34 NATURALIZATION

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

5. The case before the court relates to some West Papuan refugees making private arrangements with a PNG landlord to temporarily settle on his land for some time. After some years of living on that land the landlord wanted to develop the land and requested the refugees to leave. The refugees refused to leave and the land lord took out an eviction order from the District Court for them to vacate the premises within a specific time. The time given by the District Court has lapsed.

6. The refugees filed a judicial review application to stay the eviction orders of the District Court and have also sought a declaration that the orders of the court are harsh and oppressive.

7. Although the parties never raised the issue of the obligation of the PNG government, I have raised it with counsel for the parties as to what was the status of the plaintiffs as to whether they are refugees or not and what the obligations of the PNG Government were, if any, to look after them and their interest.

8. The major issue raised in this case is the matter of housing and settlement of the refugees. Under Article 21 of the United Nations Convention and Protocols Relating To Status of Refugees, the Government of PNG is obliged to accord the refugees lawfully staying in PNG “treatment as favourable as possible”. It would be nice if PNG was to build refugee facilities as the Australia Government did in Manus and Nauru to house its own refugees, but the PNG Government did not do anything like that and has not had the common decency to build such facilities presumably because it lacks funds to do that.

9. In Australia in recent times “boat people” as they are commonly referred to are put in care centres either on Christmas Island or on mainland Australia. They are then screened and their status ascertained as to whether they are genuine refugees or not.

10. In PNG there are no such screening places. PNG accepted the West Papuans as refugees. I stand to be corrected on this assumption. In any case as refugees that come or flee to PNG are West Papuans who are Melanesians, the same ethnic group as Papua New Guineans.

11. PNG is a signatory to certain International Conventions which I have already referred to. It must show its sincerity by providing the basic needs for the refugees. Otherwise, we can be branded as insincere.

12. Article 21 provides:

HOUSING

As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable...