Ralph Rakhinand Premdas v The State [1979] PNGLR 329

• Jurisdiction: Papua New Guinea
• Judge: Prentice CJ, Raine DCJ, Saldanha J, Wilson J, Andrew J
• Judgment Date: 03 September 1979
• Court: Supreme Court
• Docket Number: Supreme Court Reference No 1 of 1979
• Judgement Number: SC160

Full Title: Supreme Court Reference No 1 of 1979; Ralph Rakhinand Premdas v The State [1979] PNGLR 329

Supreme Court: Prentice CJ, Raine DCJ, Saldanha J, Wilson J, Andrew J

Judgment Delivered: 1 or 3 September 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF SUPREME COURT REFERENCE NO. 1 OF 1979 IN THE MATTER OF A REFERENCE UNDER S. 18 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND IN THE MATTER OF RALPH RAKHINAND PREMDAS

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Prentice CJ Raine DCJ Saldanha Wilson Andrew JJ

30-31 July 1979

1 August 1979

1 September 1979

IMMIGRATION AND ALIENS — Entry permit — Whether civil right -Revocation of entry permit — Whether principles of national justice applicable to administrative enquiry — Whether s. 61AA of Migration Act 1963 invalid — Whether revocation harsh or unconscionable or unwarranted by circumstances — Migration Act 1963, s. 61AAInfra. p. 3381 — Constitution of the Independent State of Papua New Guinea, s.37 (11) and (12) Infra. p. 3382 ss. 38, 41, 57 (1), 155 and 166.

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Validity of s. 61AA of Migration Act 1963 — Section prohibiting appeal relating to grant or revocation of entry permit or order for deportation — Section to be read down by provisions of Constitution — Section not preventing jurisdiction where alleged breaches of constitutional rights — Constitution, ss. 57 (1), 155 and 166.

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Civil right — What constitutes — Rights under entry permit granted under Migration Act 1963 — Rights not civil rights — Constitution, s. 37 (11) and (12) Infra. p. 3383.

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Proscribed acts — Revocation of aliens entry permit — Not harsh, unconscionable or unwarranted by circumstances — Constitution, s. 41.

The applicant Dr. Premdas an American citizen was a lecturer at the University of Papua New Guinea under a contract which was to run until 1982 and was the holder of a permit to enter and remain in Papua New Guinea during his employment, which permit was issued under the Migration Act 1963. Having been requested by the Minister for Primary Industry (a former pupil) to assist with the running of his Department the applicant attended at the Department from time to time and assisted in the running of the Department. After complaints from the Secretary of the Department concerning the attendance at and interference in the running of the Department, the Prime Minister twice requested by letter to the Minister that the applicant remove himself from departmental activities.

Thereafter the Minister for Foreign Affairs and Trade made an order under s. 7 (1) (A) of the Migration Act 1963 revoking the applicant's permit to enter Papua New Guinea. The applicant then applied under s. 6 (1) (B) of that Act to have the notice of revocation reviewed by a Committee of Review, which after inviting written statements from the applicant, heard the application without allowing the applicant to appear personally before it, and confirmed the revocation. The applicant was then ordered to be deported.

The applicant then instituted proceedings in the National Court seeking a declaratory order that the principles of national justice referred to in the Constitution of the Independent State of Papua New Guinea had been violated and that the applicant's rights and freedoms were in need of protection and enforcement, and for an order that the applicant not be forcibly removed from Papua New Guinea.

The National Court made an interlocutory order to preserve the status quo pending a determination of questions relating to the interpretation of the Constitution which questions were then referred to the Supreme Court pursuant to s. 18 (2) of the Constitution. On this reference it was:

Held

(1) The Minister for Foreign Affairs and Trade in revoking an entry permit of a non-citizen under s. 7 of the Migration Act 1963, and a Committee of Review appointed under that section to review that revocation are not determining the existence or extent of a civil right within the meaning of s. 37 (11) of the Constitution of the Independent State of Papua New Guinea.

R. v. Inspector of Leman Street Police Station; Ex parte Venicoff, [1920] 3 K.B. 72;

R. v. Governor of Brixton Prison; Ex parte Soblen, [1963] 2 Q.B. 243; Re Marles' Application, [1958] E.A. 153;

Attorney-General for the Dominion of Canada v. Cain [1906] A.C. 542, at p. 546; and

R. v. MacKellar; Ex parte Gaunt (1978), 20 A.L.R. 119, applied.

Birdi v. Secretary of State for Home Affairs (1975), (judgment of C.A., 11th Feb., 1975, reported in part in (1976) 92 L.Q.R. 34; (1975) 119 S.J. 322; The Times, 12th Feb., 1975);

Salemi v. MacKellar (No. 2) (1977), 137 C.L.R. 396; 14 A.L.R. 1;

R. v. MacKellar; Ex parte Ratu (1977), 137 C.L.R. 461; 14 A.L.R. 317; and

Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149, at p. 170, considered.

(2) (Wilson J. dissenting) The principles of natural justice do not apply in proceedings under the Migration Act 1963 regarding the revocation of the entry permit of a non-citizen and an order for deportation.

R. v. Inspector of Leman Street Police Station; Ex parte Venicoff, [1920] 3 K.B. 72;

R. v. Governor of Brixton Prison; Ex parte Soblen, [1963] 2 Q.B. 243;

Re Marles' Application, [1950] E.A. 153;

Attorney-General for the Dominion of Canada v. Cain, [1906] A.C. 542, at p. 546; and

R. v. MacKellar; Ex parte Gaunt (1978), 20 A.L.R. 119, applied.

(3) The revocation of an entry permit under s. 7 of the Migration Act 1963 with an accompanying threat of deportation is not an actual or imminent infringement of the qualified rights set out in Sub-div. C of Div. 3 of Pt III of the Constitution of the Independent State of Papua New Guinea, and accordingly it is not necessary for the Migration Act 1963 to comply with the provisions of s. 38 of the Constitution.

(4) In the circumstances, the revocation of the entry permit by the Minister for Foreign Affairs and Trade and the subsequent confirmation of the revocation by the Committee of Review were not unlawful acts within the meaning of s. 41 (Proscribed acts) of the Constitution of the Independent State of Papua New Guinea.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223; and

Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997, applied.

(5) The provisions of s. 61AA of the Migration Act 1963 which prohibit the "review or challenge in any court on any ground whatsoever" of any decision of the Minister for Foreign Affairs and Trade, relating to the grant or revocation of an entry permit or the deportation of a non-national, are not unconstitutional and must be read down in the light of s. 57 (1) s. 155 and s. 166 of the Constitution of the Independent State of Papua New Guinea: they cannot prevent the jurisdiction of the National and Supreme Courts being invoked in support of alleged Constitutional Rights and against alleged breaches of the Constitution.

(6) (Per Prentice C.J., Saldanha J., Andrew J. and Raine J. not deciding, and Wilson J. dissenting) The revocation of the entry permit by the Minister for Foreign Affairs and Trade and the subsequent confirmation thereof by the Committee of Review, were properly made and should stand.

Reference

This was a reference to the Supreme Court pursuant to s. 18 (2) of the Constitution of the Independent State of Papua New Guinea which provides that, where any question relating to the interpretation or application of any provision of a constitutional law arises in any court or tribunal other than the Supreme Court, the court or tribunal, shall, refer the matter to the Supreme Court.

The proceedings from which the reference arose were proceedings in the National Court, by a non-national whose entry permit had been revoked by the Minister for Foreign Affairs and Trade, seeking a declaratory order that the principles of natural justice referred to in the Constitution had been violated and that the applicant's rights and freedoms were in need of protection and enforcement and for an order that the applicant not be forcibly removed from Papua New Guinea.

The questions referred were as follows:

"Q1. Are the Minister for Foreign Affairs and Trade, in revoking an entry permit of a non-citizen under s. 7 of the Migration Act 1963 (as amended) and a Committee of Review appointed under that section to review that revocation determining the existence or extent of a civil right within the meaning of s. 37 (11) of the Constitution and if so should either of such proceedings have been held in public in accordance with s. 37 (12) of the Constitution or alternatively if other persons were excluded pursuant to s. 37 (13) should not the complainant have been permitted to be present during such proceedings?

Q2. Is the revocation of an entry permit...