Helal Uddin v Solomon Kantha, Chief Migration Officer and PNG Immigration and Citizenship Service Authority and Petrus Thomas, Minister for Immigration & Border Security and the Independent State of Papua New Guinea (2020) N8267

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 April 2020
• Court: National Court
• Citation: (2020) N8267
• Docket Number: HRA No 228 of 2019
• Year: 2020
• Judgement Number: N8267

Full Title: HRA No 228 of 2019; Helal Uddin v Solomon Kantha, Chief Migration Officer and PNG Immigration and Citizenship Service Authority and Petrus Thomas, Minister for Immigration & Border Security and the Independent State of Papua New Guinea (2020) N8267

National Court: Cannings J

Judgment Delivered: 16 April 2020

N8267

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 228 OF 2019

HELAL UDDIN

Applicant

V

SOLOMON KANTHA, CHIEF MIGRATION OFFICER

First Respondent

PNG IMMIGRATION AND CITIZENSHIP SERVICE AUTHORITY

Second Respondent

PETRUS THOMAS, MINISTER FOR IMMIGRATION

& BORDER SECURITY

Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani : Cannings J

2019;20, 23 December

2020;8, 28 January, 20 February, 16 April

HUMAN RIGHTS –immigration – asylum seekers –illegal entrants to the country – rights of non-citizens after refusal of application for refugee status–marriage to a PNG citizen – principles of love and humanity – Constitution: right to life (s 35) – full protection of the law (s 37) – freedom of conscience, thought and religion (s 45) – protection against harsh, oppressive and other proscribed acts (s 41).

The applicant is a Bangladeshi man who was transferred from Australia to Papua New Guinea in 2013 and held at the Manus Island Regional Processing Centre. When the centre closed in 2016 he formed a relationship with a local woman. In 2017 they married and had a child and lived in Manus. In early 2018 he was deported to Bangladesh but in late 2018 he returned to PNG illegally and resumed life with his wife and child. In 2019 he was arrested and detained and charged with an immigration offence, convicted and fined. He paid the fine but the Minister for Immigration had issued,under the Migration Act, another removal order against him and directed that he continue to be detained in custody while arrangements were made for his deportation. In July 2019 he filed an application for enforcement of human rights and an interim injunction was granted, restraining his deportation. A trial of his human rights application was conducted. He claimed that his treatment by the respondents (officers and agencies of the PNG Government) infringed four of his human rights under the Constitution: the right to life (s 35), full protection of the law (s 37), freedom of conscience, thought and religion (s 45) and protection against harsh, oppressive and other proscribed acts (s 41). He sought order squashing the 2019 removal order and the direction that he be detained in custody, releasing him from detention and allowing him to remain in PNG.

Held:

(1) No action taken by the respondents concerning the applicant denied him his right to life or the full protection of the law or his freedom of conscience, thought or religion. No infringement of human rights under ss 35, 37 or 45 of the Constitution was proven.

(2) Though the applicant’s presence in PNG in the period after his illegal entry in November 2018 was unlawful under the Migration Act, giving rise to an ostensibly lawful exercise of power by the Minister under ss 12 and 13 of that Act to order his removal from the country and his detention in custody, such powers must nonetheless be exercised in a way that does not infringe on the right of all persons to be protected against acts that are harsh or oppressive or otherwise proscribed under s 41(1) of the Constitution.

(3) The burden of showing that acts are, under s 41(1), proscribed acts rests on the party alleging it and may be discharged on the balance of probabilities.

(4) That burden was discharged as it was shown that the respondents’ treatment of the applicant, especially his proposed deportation, was harsh, oppressive and not warranted by the requirements of his particular case, as no or insufficient regard was given to his particular circumstances in that: (a) he was forcibly transferred in 2013 from Australia to PNG without any choice; (b)he was unlawfully detained in a processing centre in conditions akin to a prison from 2013 to 2016 for two years, six months; (c) he has married a PNG citizen and is the biological father of a child who is a PNG citizen; (d) no investigation has been undertaken into the question of whether he is a fit and proper person to remain in PNG and there is no evidence that he has committed any offence other than illegal entry under the Migration Act; (e) he has not been given a right to be heard on the question of whether he ought to be deported, nor has he been accorded the opportunity to say why he wishes to remain in PNG; and furthermore the interests of other persons have not been considered, viz (f) the wishes of the applicant’s wife, a PNG citizen, who has professed her love for the applicant and her desire to have him in her and her child’s life; and (g) the interests of the applicant’s child, now three years old, who if the applicant is deported will be denied the opportunity to be raised and nurtured with the love, support and physical presence of his biological father.

(5) Declared and ordered under ss 57(3) and 155(4) of the Constitution that the acts of the respondents involved in the treatment of the applicant have been and will continue to be if not restrained unlawful acts, under ss 41(1)(a) and (b) of the Constitution; that the decisions the applicant be removed from the country and detained in custody and the instruments reflecting those decisions issued under the Migration Act are null and void and are quashed; that the applicant shall be issued with an entry permit under s 5 of the Migration Act authorising his residency in the country for a period of three years.

Cases cited

The following cases are cited in the judgment:

Abaina Emos & 18 Ors v Dr Sebastian Bagrie, Chairman, Governing Council, Madang Teachers College (2020) N8260

Agnes Millia Okona-Meten v Leslie B Mamu (2019) N7668

Alleged Detention Manus Province, of persons seeking Asylum in Australia (2014) N5529

Bank of Papua New Guinea v Muteng Basa [1992] PNGLR 271

Boson Wilson & 3 Ors v Divine Word University (2018) N7613

Constitutional Reference No 1 of 1977 Re Non-compliance with Section 42(2) of the Constitution [1977] PNGLR 362

Curran v The State [1994] PNGLR 230

David Simon v Michael Koisen (2018) N7075

Department of Works v International Construction (PNG) Ltd (2008) N5896

James Geama v OTML Shares In Success Ltd (2011) N4269

Jeanette Kornet v Dominic Sumala (2020) N8260

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598

Joyce Avosa v Rene Motril (2014) N5732

Kamit v Aus-PNG Research & Resources Impex Ltd [2007] 1 PNGLR 222

Max Umbu v Steamships Ltd (2004) N2738

Morobe Provincial Government v John Kameku [2012] 1 PNGLR 41

Namah v Pato, National Executive Council and the State (2016) SC1497

Nowra No 8 Pty Ltd v Kala Swokin [1993] PNGLR 498

Paru v Kotigama & Bmobile-Vodafone (2015) N6089

Petrus & Gawi v Telikom PNG Ltd (2008) N3373

Raz v Matane [1985] PNGLR 329

Re Human Rights of prisoners sentenced to death (2017) N6939

Re Ricky Yanepa [1988-89] PNGLR 166

SC Ref No 1 of 1993 Re Section 365 of the Income Tax Act (1995) SC482

Sir Michael Somare v Theo Zurenuoc (2016) N6308

Stewart Yareng v PNG Maritime College (2019) N8152

Tammy Tomscoll v Rabura Mataio, Chief Migration Officer (2016) N6200

Tarere v ANZ Bank [1988] PNGLR 201

The State v Mana Turi [1986] PNGLR 221

The State v The Transferees (2014) SC1348

The State v Transferees (2015) SC1451

University of Papua New Guinea v Uma More [1985] PNGLR 48

TRIAL

This was an application for enforcement of human rights.

E Wurr for the plaintiff

T Mileng for the 4threspondent

16th April, 2020

1. CANNINGS J: The applicant, Helal Uddin, is a Bangladeshi man who was transferred from Australia to Papua New Guinea in 2013 and detained at the Manus Island Regional Processing Centre. When the centre closed in 2016 he formed a relationship with a local woman. They married and had a child. He is presently the subject of a removal order issued by the Minister for Immigration. He has been in immigration detention for more than a year. Only an interim injunction granted by this Court, after commencement of these proceedings as an application for enforcement of human rights,has prevented his removal from the country.

2. He claims that his treatment by the respondents (officers and agencies of the PNG Government) involves infringement of four of his human rights under the PNG Constitution: the right to life (s 35), full protection of the law (s 37), freedom of conscience, thought and religion (s 45) and protection against harsh, oppressive and other proscribed acts (s 41). He seeks an order releasing him from detention and allowing him to remain in PNG. A trial has been conducted of his application. The following issues arise:

1. What are the facts?

2. Has the applicant’s right to life under s 35 of the Constitution been infringed?

3. Has the applicant’s right to full protection of the law under s 37 of the Constitution been infringed?

4. Has the...