Philip Kian Seng Lee v Honourable John Pundari, MP Minister for Foreign Affairs, Evoa Lalatute Secretary, Department of Foreign Affairs and The Independent State of Papua New Guinea (2001) N2146

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Citation: (2001) N2146
• Court: National Court
• Year: 2001
• Judgement Number: N2146

Full Title: Philip Kian Seng Lee v Honourable John Pundari, MP Minister for Foreign Affairs, Evoa Lalatute Secretary, Department of Foreign Affairs and The Independent State of Papua New Guinea (2001) N2146

National Court: Kandakasi J

Judgment Delivered: 9 November 200

N2146

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO: 507 of 2001

BETWEEN:

PHILIP KIAN SENG LEE

Plaintiff

HON. JOHN PUNDARI, MP

MINISTER FOR FOREIGN AFFAIRS

First Defendant

AND:

EVOA LALATUTE

SECRETARY, DEPARTMENT OF FOREIGN AFFAIRS

Second Defendant

AND:

THE STATE

Third Defendant

WAIGANI: Kandakasi J

2001: 18th September

9th November

ADMINISTRATIVE LAW — Application for leave for judicial review — Available statutory remedy not exhausted — Whether cancellation of PNG passport and having no PNG citizenship exceptional circumstances to avoid need to meet requirement that all available remedies be first exhausted before applying for case for judicial review — No exceptional case shown — Application declined — constitution ss. 67, 76 & 81 — Passports Act (Chp) s.13.

CITIZENSHIP — Recommendation by citizenship Advisory Committee not grant of citizenship — No citizenship without certificate of citizenship — Only citizens entitled to PNG passports — Cancellation of passport without prove of citizenship — Right of review against decision — Review Committee in better position to review decision — Constitution ss. 67, 76 & 81 — Passports Act s. 13.

Cases Cited

Lawrence Bokele v. The Police Commissioner and The State (unreported 28th June 2001) N3005 at page 7.

Independence State of Papua New Guinea v. Kapal [1987] PNGLR 417 at page 421.

Kekedo v. Burnsphilip (PNG) Ltd [1988-89] PNGLR 122.

Counsels:

J. Yagi, for the plaintiff.

L. Henao, for the defendants.

9th November 2001

KANDAKASI J: This is a application for leave for judicial review under Order 16 Rule 3(1) of the National Court Rules ("the Rules"). The first defendant ("the Minister") made the decision in question. He decided to cancel the plaintiff's ("Mr Lee") PNG Passport, Entry Permit and reject a recommendation by the Citizenship Advisory Committee that Mr Lee be granted PNG citizenship. The Minister also ordered that Mr Lee be removed out of Papua New Guinea. All of these decisions were made on the 1st and 2nd of August 2001.

The defendants opposed the application on the basis that Mr Lee has not exhausted remedies available to him under section 13 of the Passports Act, chp. 17. The defendants also say that, if leave is granted, they have substantial arguments on the merits of the case against any review because no Certificate of Citizenship was issued and as such Mr Lee was not entitled to any PNG Passport or enjoy the privileges of a citizen. Section 81 of the Constitution was cited in support of that argument.

Mr Lee's response to that is that, he could not utilize the remedy under s.13 of the Passports Act as his citizenship was revoked and that would operate against the Review Committee favorably dealing with his application for review under that section. In relation to having not being granted a Certificate of Citizenship under s.67 of the Constitution the Citizenship Advisory Committee did recommend he be granted citizenship in the exercise of its power under s.76 of the Constitution. Given his particular circumstances, Mr. Lee thus argues that, his case falls under the exception to the rule that all other available administrative remedies be exhausted first before resorting to leave for judicial review.

This case raises two important Constitutional and legal questions. These questions are:

1. Is Mr Lee's case an exceptional case and as such he is not required to make use of the remedy available under s.13 of the Passports Act ? and

2. Whether the plaintiff is a citizen of Papua New Guinea having regard to the provisions of 67, 76 & 81 of the Constitution?

The affidavit of Mr. Lee sworn on the 13th of August 2001 and filed on the 17th of August 2001, sets out the relevant facts in this case. In early 1997, the Citizenship Advisory Committee recommended Mr Lee be granted PNG citizenship along with several others. Mr. Lee says, he met all the requirements for citizenship under s.67 (2) of the Constitution. He did not in any form or shape bribe any government official, be it officers of the Department of Foreign Affairs and staff and any member of the Citizenship Advisory Committee to facilitate a recommendation for him to be granted PNG Citizenship. The recommendation or a copy of that is not in evidence.

Mr. Lee was not issued with a citizenship certificate under s.81 of the Constitution to confirm his citizenship. That continues to be the position at the present time.

Without having first obtained a certificate of citizenship, Mr. Lee applied for and obtained three different PNG Passports. According to a newspaper report, which is annexure 'F' to Mr Lee's affidavit, his first PNG passport was issued on March 14th 1997. The second one was issued on July 17th 1997 and the third and final one was issued on May 23rd 1999. The respective passport numbers were 046609, 050012 & 081991A. At the time when Mr Lee first applied for citizenship, he was still a current holder of a Malaysian passport and a Thai passport, which confirmed his citizenship with those countries. At paragraph 28 of his affidavit, Mr. Lee says:

"The PNG Passport No. 046609 was issued to me on condition that I surrender my Malaysian passport and renounce my Malaysian and other citizenship which I complied and did sign the denunciation document."

He then annexes a copy of the denunciation document (annexure 'S') which specifically denounces his Malaysian citizenship and generally renounces his nationality and or citizenship of any other country and is dated 14th of March 1997, the same date the first passport was issued. There is however, no evidence of the conditions on which Mr. Lee says he was issued that passport.

In relation to the second passport, Mr. Lee says he lost the first one due to a robbery. He claims having reported it to police and with a police report he applied for a new passport. That resulted in the issue of the second passport. Again Mr. Lee does not annex any copy of his alleged report to police and the application for the second passport.

With regard to the third passport, Mr. Lee also claims that, he lost that passport and applied for a new passport and the third one was issued. He also claims that the second passport, which was allegedly lost, was later found and returned to him. He says, it neither occurred to him, nor was he advice by anyone that he should return the lost passport to the Immigration Office. He therefore, says he honestly believed that, based on immigration records of the Department of Foreign Affairs pertaining to his passport number 06609, it would have been cancelled or invalidated as a result of the issuance of the replacement passport number 050012. Again he does not annex copies of the information he provided to the authorities at the relevant time of applying for that passport.

The letter canceling Mr. Lee's passports dated 31st August 2001 and the various newspaper cuttings annexed to his affidavit as annexures 'F' to 'J' clearly show the allegations against him and the basis for canceling his passports. They essentially show that, he was suspected of having obtained those passports by means of false and misleading statements within the meaning of s.12 (2)(f) of the Passports Act. It was therefore incumbent upon the plaintiff to provide copies of the relevant information he provided to the authorities at the time of applying for each of the three different passports to enabled this Court to determine whether or not there was basis for the decision resulting in the cancellation of his passports.

Mr. Lee's counsel submitted that, most of his clients' documents and records were taken by police under a search warrant and have not being returned despite a District Court Order by consent for that to happen. This submission is based on Mr. Lee deposing to police and other Department of Foreign Affairs Officials entering his premises under a search warrant on the 23rd of April 2000 and removing a number of items including his 3 PNG Passports, one Malaysian passport and one Thai passport. A list of the items that were removed from the plaintiff is set out in annexure 'A' to Mr. Lee's affidavit. None of them include any copies of the passport applications or the conditions on which each of them were issued without first obtaining and having in his possession a...