Belden Norman Namah MP, Leader of the Opposition v Rimbink Pato MP, Minister for Foreign Affairs & Immigration and The National Executive Council and The Independent State of Papua New Guinea (2013) N4990

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 14 February 2013
• Court: National Court
• Citation: (2013) N4990
• Docket Number: OS (HR) NO 9 of 2013
• Year: 2013
• Judgement Number: N4990

Full Title: OS (HR) NO 9 of 2013; Belden Norman Namah MP, Leader of the Opposition v Rimbink Pato MP, Minister for Foreign Affairs & Immigration and The National Executive Council and The Independent State of Papua New Guinea (2013) N4990

National Court: Cannings J

Judgment Delivered: 14 February 2013

N4990

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 9 OF 2013

BELDEN NORMAN NAMAH MP,

LEADER OF THE OPPOSITION

Plaintiff

V

RIMBINK PATO MP,

MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION

First Defendant

THE NATIONAL EXECUTIVE COUNCIL

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2013: 13, 14 February

INJUNCTIONS – interim injunctions – persons seeking asylum – whether to grant interim injunction to restrain defendants from receiving or transferring further asylum seekers to relocation centre pending determination of proceedings challenging arrangements for their detention.

HUMAN RIGHTS – Constitution Section 42(2) – rights of persons detained – right to communicate with lawyer of their choice.

The plaintiff, the Leader of the Opposition, commenced proceedings by originating summons seeking declarations that a memorandum of understanding between Papua New Guinea and Australia relating to the transfer to Papua New Guinea and assessment of persons seeking asylum and the continuous deprivation of their liberty at a place declared under the Migration Act to be a relocation centre are unconstitutional and that exemptions by the Minister for Foreign Affairs and Immigration (the first defendant) under the Migration Act relating to those persons are void and of no effect and a permanent injunction restraining the defendants from detaining those persons at the relocation centre. After commencement of the proceedings the plaintiff applied by motion for two interlocutory orders. First an interim injunction, pending determination of the substantive proceedings, that the defendants be restrained from receiving or transferring any further asylum seekers from Australia in the relocation centre. Secondly an order that the plaintiff’s lawyers be granted access to the relocation centre to get statements and affidavits from some of the persons.

Held:

(1) The primary considerations to be taken into account when the court decides how to exercise its discretion whether to grant an interim injunction are: (a) are there serious questions to be tried and does an arguable case exist? (b) has an undertaking as to damages been given? (c) would damages be an inadequate remedy if the interim order is not granted? (d) does the balance of convenience favour the granting of the interim order? (e) do the interests of justice require that the interim order be made?

(2) Here: (a) there are serious questions to be tried and the plaintiff has a serious not merely speculative case, however the prospects of ultimate success are tempered by question marks over whether the plaintiff actually has a sufficient interest in the matter, whether the proceedings have been properly commenced in the National Court and whether concerns about alleged human rights breaches would be better prosecuted by way of enforcement proceedings under Section 57 of the Constitution and whether the proceedings are an abuse of process; (b) an undertaking as to damages has been given; (c) damages would be an inadequate remedy. Only (b) and (c) really favour granting the interim injunction; (a) is the most significant factor and it is neutral.

(3) On the other hand: (d) the balance of convenience does not favour granting an injunction in the terms sought and (e) the interests of justice do not require that the injunction be granted. As two of the five considerations do not favour its granting, an interim injunction in the terms sought by the plaintiff will be refused.

(4) As to the application for an order allowing the plaintiff’s lawyers access to the relocation centre, despite lack of clarity as to the terms of the order sought and the grounds on which it was being sought, the information before the court suggests that the asylum seekers have been “detained” but have not been accorded their rights as detained persons under Section 42(2) of the Constitution including being permitted whenever practicable to communicate without delay and in private with a lawyer of their choice and given adequate opportunity to give instructions to a lawyer of their choice in the place in which they are detained.

(5) This serious concern on the part of the court is best remedied by granting the plaintiff’s lawyers access to the relocation centre, so an order to that effect was made.

Cases cited

The following cases are cited in the judgment:

Application of Jim Kas, Governor of Madang (2001) SC670

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878

In the Matter of the Right Honourable M T Somare [1981] PNGLR 265

Lowa v Akipe [1991] PNGLR 265

Marthinus Kambu v Sir Pita Lus (2010) N4437

Ramu Nico Management (MCC) Ltd v Eddie Tarsie (2010) SC1075

SCR No 7 of 2008, Reference by Ken Norae Mondiai (2010) SC1087

SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329

SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988] PNGLR 556

Tarsie v Ramu Nico (MCC) Ltd (2010) N3960

Telikom PNG Ltd v Newsat Ltd (2007) N3451

The State v Linus Rebo Dakoa (2009) N3586

The State v Paro Wampa [1987] PNGLR 120

Counsel

L R Henao & W Bigi, for the plaintiff

P Kuman & T Tanuvasa, for the defendants

14 February, 2013

1. CANNINGS J: This is a ruling on an application by the plaintiff, Belden Norman Namah MP, the Leader of the Opposition, for two interlocutory (pre-trial) orders:

(1) an interim injunction to stop any more asylum seekers being sent to the relocation centre at Lombrum Naval Base, Manus Province; and

(2) an order allowing his lawyers access to the relocation centre.

2. The application was filed following commencement by the plaintiff of proceedings which challenge amongst other things the constitutionality of arrangements made between the Governments of Papua New Guinea and Australia that have resulted in a number of people who had arrived in Australia seeking refugee status (known generally as ‘asylum seekers’) being transferred to the regional processing facility, also known as a relocation centre, at Lombrum.

THE FIRST ORDER SOUGHT: AN INTERIM INJUNCTION

3. The plaintiff seeks by paragraph 1 of the amended notice of motion filed on 8 February 2013 an interim injunction restraining the defendants (Rimbink Pato MP, the Minister for Foreign Affairs and Immigration; the National Executive Council and the State) from “receiving or transferring any further asylum seekers from Australia into the relocation centre in Manus Province under the terms of the [Memorandum of Understanding between Papua New Guinea and Australia] pending the determination of this proceeding”. The primary considerations to be taken into account when a person seeks an interim injunction were confirmed by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853 as being:

(a) are there serious questions to be tried and does an arguable case exist?

(b) has an undertaking as to damages been given?

(c) would damages be an inadequate remedy if the interim order is not made?

(d) does the balance of convenience favour the granting of interim relief?

(e) do the interests of justice require that the interim injunction be granted?

4. Those considerations have been set out so that a ‘yes’ answer will be a factor weighing in favour of granting an interim injunction and a ‘no’ answer will work against making such an order.

(a) Are there serious questions to be tried and does the plaintiff have an arguable case?

5. This requires the Court to make an assessment of the prospects of success of the plaintiff’s substantive action by looking at the originating process (in this case, the originating summons) and the evidence that has been adduced to date. 6. The issue is not simply whether the plaintiff has raised serious allegations, but whether he appears to have a reasonable prospect of succeeding in the substantive case (Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878). Put another way, the court assesses whether there are serious questions to be tried and the plaintiff has a serious, not merely speculative, case, with a real possibility of ultimate success.

7. The plaintiff wants this matter to go to trial so he can seek the following relief:

· A declaration that the memorandum of understanding between Papua New Guinea and Australia relating to the transfer to Papua New Guinea and assessment of persons seeking asylum, which was executed on 8 September 2012, is unconstitutional (paragraph 1 of the originating summons).

· A declaration that the continuous deprivation of the liberty of the asylum seekers at Lombrum is unconstitutional (paragraph 2 of the originating summons).

· Declarations that...