SCA. No. 84 of 2013; Belden Norman Namah, MP Leader of the Opposition v Hon. Rimbink Pato, Minister for Foreign Affairs & Immigrations and National Executive Council and the Independent State of Papua New Guinea (2016) SC1497

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Kandakasi, Kariko, Sawong and Higgins JJ
• Judgment Date: 26 April 2016
• Court: Supreme Court
• Citation: (2016) SC1497
• Year: 2016
• Judgement Number: SC1497

Full Title: SCA. No. 84 of 2013; Belden Norman Namah, MP Leader of the Opposition v Hon. Rimbink Pato, Minister for Foreign Affairs & Immigrations and National Executive Council and the Independent State of Papua New Guinea (2016) SC1497

Supreme Court: Salika DCJ, Kandakasi, Kariko, Sawong and Higgins JJ

Judgment Delivered: 26 April 2016

SC1497

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 84 OF 2013

BETWEEN:

BELDEN NORMAN NAMAH, MP Leader of the Opposition

Applicant

AND:

HON. RIMBINK PATO, MINISTER FOR FOREIGN AFFAIRS & IMMIGRATIONS

First Respondent

AND:

NATIONAL EXECUTIVE COUNCIL

Second Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Salika DCJ, Kandakasi, Kariko, Sawong and Higgins JJ.

2015: 29th October

2016: 26th April

CONSTITUTIONAL LAW – Interpretation and application of Constitutional Law – Amendment to the Constitution affecting personal liberty of a person – Section 38 qualifications and requirements – Amendments failing to meet requirements – Effect of – Amendments invalid.

CONSTITUTIONAL RIGHTS – Liberty of a person s.42 - Exceptions - Persons forcefully brought into Papua New Guinea and held against their will – Administrative arrangements between two sovereign countries – Arrangements in breach of Constitutional guarantee of liberty of all persons – Arrangements unconstitutional – Subsequent constitutional amendments invalid – Effect of – Arrangements declared unconstitutional and illegal.

MIGRATION LAW – Detention of persons seeking asylum – Need to determine refugee status first – Essential elements entry and remaining in the country without a permit and or an exemption – Persons lawfully in the country but brought in against their will and detained – Lack of proper guidelines for the treatment of asylum or refugee claims which have due regard to human rights of persons guaranteed by the Constitution –Conditions at detention centre failing to meet UNHCR guidelines – Effect of – Breach of constitutional rights and Migration Act – Detention unconstitutional and illegal.

PRACTICE & PROCEDURE – Constitutional reference – Establishment of relevant facts – Disputed facts and undisputed facts - Dispute must be with good reason - Court orders and directions for parties to discuss and settle – One party failing to comply, failing to seek extension of time and take steps to comply and objecting to statement of facts filed - Objection overruled – Effect of – Facts in statement of facts stand admitted or uncontested – No need for any trial to find the relevant facts – Trial should be reserved for cases in which there is genuine dispute with good reason – Lack of – Court to proceed summarily

COSTS – Rule of the thumb – Discretion of the Court to award costs - Successful party gets costs – Applications under s. 18 and 19 – Costs ordered in favour of successful party.

Papua New Guinea Cases Cited:

Application by Francis Gem (2010) SC 1065.

Air Traffic Controllers Association v. Civil Aviation Authority (2009) SC1031.

Application of Ireeuw [1985] PNGLR 430.

Belden Norman Namah MP v. Rimbink Pato MP (2013) N4990.

Don Pomb Pullie Polye v. Jimson Sauk and Electoral Commission (1999) SC651.

Kaseng v. Namaliu [1995] PNGLR 481.

Korak Yasona v. Casten Maibawa and The Electoral Commissioner of Papua New Guinea (1998) SC589.

Premdas v. Independent State of Papua New Guinea [1979] PNGLR 329.

Reference by the East Sepik Provincial Executive (2011) SC1154.

Reference by the Morobe Provincial Executive (2012) SC1202

Re Application of Lou Bei v Dominic Ampao’i (2010) N3826.

Re Village Courts Act (Ch44) [1988–89] PNGLR 491.

Re Yongo Mondo (1989) N707.

The State v. Enni Mathew & Ors (No 2) (2003) N2563.

The State v. NTN Pty Ltd and NBN Ltd [1992] PNGLR 1.

The State v. Songke Mai and Gai Avi [1988] PNGLR 56.

William Moses v. Otto Benal Magiten (2006) SC875.

Overseas Cases Cited:

Guzzardi v. Italy 3 EHRR 333

Maneka Gandhi v. Union of India (1978) 2 SCR 621.

Plaintiff S4/2014 v. Minister for Immigration & Border Protection [2014] 253 CLR 219

Legislation and other material cited:

Constitution Amendment (No. 37) (Citizenship) Law 2014

Constitution of the Independent State of Papua New Guinea

Migration Act (Chp.16)

Migration (Amendment) Act No.10 of 1989.

Quarantine Act (Chp.234)

United Nations Convention Relating to the Status of Refugees 1951

UNHCR Detention Guidelines

Counsel:

M. Cooke QC and L. Henao, for the Applicant

P. Kuman and A. Chillion, for the Respondents

26th April 2016

1. Salika DCJ: I read the draft judgments of Kandakasi and Higgins JJ and I agree with them on their conclusions and the proposed orders. I have nothing further to add.

2. Kandakasi J: I had the privilege of reading the draft judgment of my learned brother Higgins J. I am in agreement with His Honour, both with his reasoning and his proposed outcome of this application. At the same time, however, I would like to express my reasons in my own words.

Introduction

3. This is an application pursuant to s.18 (1) Constitution. It concerns people of different nationalities who sought asylum (asylum seekers) in Australia but got transferred and held against their will on Papua New Guinea’s Manus Island Processing Centre (MIPC) pending a processing of their asylum claims. This was under an arrangement between the Australian and Papua New Guinean (PNG) governments in the form of Memorandum of Understandings (MOU) signed on 08th September 2012 (1st MOU) and a new one signed on 05th and 06th August 2013 (2nd MOU). Later the two governments sought to validate the arrangements by an amendment to s.42 of the PNG Constitution and before that took a number of administrative measures under the Migration Act (Chp.16). The application seeks the following declaratory orders:

“(i) That transferees brought to Papua New Guinea by the Australian Government and detained at the relocation centre on Manus Island is contrary to the constitutional rights of the transferees to personal liberty guaranteed by Section 42 of the Constitution.

(ii) That Section 492 (1)(g) of the Constitution does not apply to the transferees [asylum seekers] under the Memorandum of Understanding (MOU) signed on 08th September 2012 and the new MOU signed on 05 and 06 August 2013...

(iii) … That Section 1 of the Constitution Amendment (No 37) (Citizenship) Law is unconstitutional and invalid.”

4. The Foreign Affairs Minister (the Minister), the National Executive Council and the State (collectively “the Respondents”) oppose the application and claim that all of the steps they have taken are valid and are in order. Accordingly they argue for a dismissal of the application.

Relevant Issues

5. Clearly the issues for us to consider and determine are:

(1) Whether the bringing into PNG by the Australian Government and detaining the asylum seekers at MIPC is contrary to their constitutional rights of personal liberty guaranteed by s.42 of the Constitution?

(2) Is s.1 of the Constitution Amendment (No 37) (Citizenship) Law 2014 (2014 Amendment) unconstitutional and thus invalid?

(3) Subject to an answer to question (2) does s.42 (1) (g) and or s. 42 (1) (ga) of the Constitution apply to the asylum seekers under the 1st and the 2nd MOUs?

Relevant Background and Facts

(1) Preliminary Issue

6. In order to properly understanding how these questions have arisen and their answers, it is necessary to set out the relevant background facts. Before getting into the facts themselves, I note that the accepted practice for applications under ss. 18 and 19 of the Constitution is this. Where the facts are in dispute a single Judge of the Supreme Court, other than any of the Judges constituting the bench that is dealing with the substantive matter, would be appointed to conduct a trial and make a finding of the relevant facts. Once the facts are established in that way, the full Supreme Court would hear the Application. In the Application by Francis Gem,

(2010) SC 1065.

1 this Court established this practice. Recently, the Supreme Court in Reference by the East Sepik Provincial Executive,

(2011) SC1154.

2 endorsed and followed that practice.

7. The above practice is sound. This should be the case in cases where there are meritorious disputes on the relevant facts. By meritorious dispute, I mean there must be a real or genuine dispute with good reason which are beyond the parties’ ability to resolve through their frank, fair and open discussions through a proper consideration and understanding of the relevant chain of events surrounding and leading to the cause in Court. In the circumstances, it must be clearly established to the Court’s satisfaction as to how and why the case is one in which a judicial determination is required. Whether or not there is a meritorious dispute on the facts in each case is a position that can be ascertained at the directions hearing stage. That can be done with appropriate directions requiring the parties to...