Tammy Tomscoll v Rabura Mataio

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 February 2016
• Citation: (2016) N6200
• Court: National Court
• Year: 2016
• Judgement Number: N6200

Full : OS No 197 of 2015; Tammy Tomscoll v Rabura Mataio, Chief Migration Officer and the Honourable Rimbink Pato MP, Minister for Foreign Affairs & Immigration and the Independent State of Papua New Guinea (2016) N6200

National Court: Cannings J

Judgment Delivered: 26 February 2016

N6200

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 197 OF 2015

TAMMY TOMSCOLL

Plaintiff

V

RABURA MATAIO, CHIEF MIGRATION OFFICER

First Defendant

THE HONOURABLE RIMBINK PATO MP,

MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2015: 3, 10 November,

2016: 26 February

CITIZENSHIP – automatic citizenship – dual citizenship – circumstances in which a PNG citizen loses citizenship – Constitution, Part IV, citizenship

HUMAN RIGHTS – right of protection against harsh, oppressive or other proscribed acts – whether available to a non-citizen – Constitution, Section 41.

Facts

The plaintiff sought a declaration that she is a Papua New Guinea citizen and related declarations and an injunction to restrain the defendants, in particular the Chief Migration Officer (the Chief Executive Officer of the PNG Immigration and Citizenship Service Authority) and the Minister for Foreign Affairs and Immigration, from deporting her. The issue of the plaintiff’s citizenship came to a head soon after she was released from prison. The Authority gave her a written direction to leave the country on the ground that she was unlawfully in the country, as she was a non-citizen without an entry permit. Three issues arose: (1) is the plaintiff a PNG citizen? (2) if she is not a PNG citizen, should the defendants be restrained from deporting her? (3) what declarations and orders should the Court make?

Held:

(1) The plaintiff was, from birth, an automatic citizen by virtue of Section 65(1) of the Constitution, as she was born in PNG before Independence Day (16 September 1975) and has two grandparents who were born in the country. She remained a PNG citizen, despite also having become a British citizen at the age of seven months and the general constitutional prohibition of dual citizenship, until she attained the age of 19 years. Upon reaching the age of 19 years, she, not having renounced her British citizenship, ceased to be a PNG citizen by virtue of Sections 64(2) and (3) of the Constitution. Nothing has happened since then to restore her PNG citizenship. She was, at the time that the Authority directed her to leave the country and at the time of trial, a British citizen.

(2) Though she was unlawfully in the country, for the purposes of the Migration Act (as she was a non-citizen without an entry permit), the plaintiff was nevertheless entitled to the full protection of the law and protection against harsh or oppressive or other unlawful acts under Sections 37(1) and 41(1) of the Constitution. In the circumstances, it would be harsh and oppressive for the defendants to direct her to leave the country or order her removal from PNG, as: (a) she was for the first 19 years of her life a citizen, (b) she has lived most of her life in PNG, (c) she reasonably and genuinely regards PNG as home and herself as Papua New Guinean, (d) her mother is a citizen, (e) she is married to a citizen, (f) her biological children are citizens, (g) she has a close connection to her mother’s culture and customs and is fluent in Tok Pisin and her mother’s tok ples, (h) she has no home to go to or any support network in the country of her citizenship. The defendants should therefore be restrained from directing her to leave PNG or deporting her.

(3) The Court: (a) declared that the plaintiff is not a PNG citizen, (b) declared that any purported deportation of the plaintiff by the Chief Migration Officer is unlawful; (c) ordered the Chief Migration Officer to withdraw the direction for the plaintiff to leave the country; (d) restrained the defendants from taking any further steps towards removing or deporting the plaintiff; (e) ordered the defendants to facilitate the making by the plaintiff of an application for PNG citizenship; (f) ordered the plaintiff to cooperate with the defendants and make an application for PNG citizenship; (g) ordered the defendants to ensure that the plaintiff’s application for PNG citizenship is heard and determined as soon as practicable; (h) declared that, unless and until the plaintiff’s application for PNG citizenship is determined, her presence in the country shall be deemed to be lawful; (i) ordered the plaintiff and the Chief Migration Officer to file and serve affidavits setting out the steps they have each taken to comply with the Court’s declarations and orders; (j) set a date for a further hearing to check on compliance; and (k) ordered the parties to bear their own costs.

Cases cited

The following cases are cited in the judgment:

Application by Tamara Player (2009) N3613

Joe Kape Meta v Constable Paul Kumono (2012) N4598

Kelly Koi v Constable Mathew Anseni (2014) N5580

Morobe Provincial Government v John Kameku (2012) SC1164

Roger Bai Nimbituo & 4 Others v The State (2015) N6156

Tamara Player Tomscoll v The State (2012) SC1208

The State v Tamara Player Tomscoll, CR No 196 of 2009, 02.09.10 unreported

The State v William Nanua Kapris & 13 others (2011) N4232

Counsel

P Ame, for the Plaintiff

B E Kua, for the First & Second Defendants

26th February, 2016

1. CANNINGS J: The plaintiff, Tammy Tomscoll, also known as Tamara Eve Player, seeks a declaration that she is a citizen of Papua New Guinea and related declarations and an injunction to restrain the defendants from deporting her. The defendants are:

· the Chief Migration Officer and Chief Executive Officer of the PNG Immigration and Citizenship Service Authority (“the Authority”), Mr Mataio Rabura, first defendant;

· the Minister for Foreign Affairs & Immigration, the Honourable Rimbink Pato MP, second defendant; and

· the Independent State of Papua New Guinea, third defendant.

2. The defendants say that the plaintiff is a British citizen and the holder of a British passport and that she is unlawfully in the country and that she can lawfully be deported or removed from the country.

3. The issue of the plaintiff’s citizenship came to a head on 15 April 2015, soon after the plaintiff was released from prison after serving a sentence for receiving stolen property. The Authority gave the plaintiff a written direction to leave the country on the ground that under Section 7(1)(a) of the Migration Act she was unlawfully in the country, as she was a non-citizen without an entry permit. The direction stated, amongst other things:

You are directed to voluntarily leave Papua New Guinea as soon as possible upon receipt of this notice. Failure to comply will result in your immediate incarceration and subsequent removal from the country.

4. Two days after receiving that direction the plaintiff commenced the present proceedings and the National Court granted an interim injunction, restraining the defendants from deporting her until determination of these proceedings.

RELIEF SOUGHT

5. The relief sought in the amended originating summons filed on 11 May 2015 is expressed as follows:

1 A declaration pursuant to Section 65(1) of the Constitution that the plaintiff is and was an automatic citizen of Papua New Guinea since 1 May 1975.

1(a) A declaration that the plaintiff has not lost her Papua New Guinea citizenship by a voluntary act for the purposes of Section 70(1)(a) of the Constitution.

1(b) A declaration that the plaintiff has not lost her Papua New Guinea citizenship under Section 70(1) of the Constitution therefore Section 64 of the Constitution as amended does not apply to the plaintiff.

1(c) A further declaration that the exercise of the rights as a holder of a British passport for the purposes of Section 70(1) to (4) of the Constitution are circumstances fault of the plaintiff hence do not amount to circumstances to the loss of her PNG citizenship. [sic]

2 That any purported deportation by the first defendant, his officers, servants and agents of the plaintiff without an order of the second defendant pursuant to Section 12(1) of the Migration Act is illegal and unconstitutional and null and void.

ISSUES

6. Three issues arise:

1. Is the plaintiff a PNG citizen?

2. If she is not a PNG citizen, should the defendants nevertheless be restrained from deporting her?

3. What declarations and orders should the Court make?

1 IS THE PLAINTIFF A PAPUA NEW GUINEA CITIZEN?

Facts

7. It is necessary to make some findings of fact before determining this issue.

8. On 1 May 1975 the plaintiff was born at Port Moresby General Hospital and named Tamara Eve Player. Her biological mother is Paula Josephine Naron, from Lopahan village, Manus Province, whose mother and father (the plaintiff’s maternal grandparents) are also from Manus Province. The plaintiff’s biological father is Ivor Jeffery Player, from England, United Kingdom, who was then a B...