Papua New Guinea Law Reports - 1982
[1982] PNGLR 339
SC237
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
PERRYMAN
V
THE MINISTER FOR FOREIGN AFFAIRS
AND TRADE
Waigani
Kapi DCJ Kaputin McDermott JJ
24 September 1982
IMMIGRATION AND ALIENS - Deportation - Detention pending deportation - Whether lawful - Whether unreasonable - Not open to review - Migration Act 1978, ss. 14, 20 - Constitution, ss. 41, 42, 159(3).
CRIMINAL LAW - Bail - Right to - Detention pending deportation - Bail rights not applicable - Migration Act, s. 14 - Constitution, s. 42(5)(b).
Section 14 of the Migration Act 1978, enables the Minister for Foreign Affairs to detain a person pending deportation and s. 20 provides that no act relating to the removal of a person from the country is open to review or challenge in any court on any ground whatsoever.
Held
(1)      Detention for the purposes of s. 14 of the Migration Act is not an imposition of a penalty or imprisonment, is specifically provided for under s. 42(1)(g) of the Constitution, is not inconsistent with s. 159(3) of the Constitution and is lawful;
(2)      Section 20 of the Migration Act prevents the court from reviewing the reasonableness of the detention;
(3)      The constitutional right to bail has no application to a person detained for the purposes of deportation under the Migration Act.
Cases Cited
Premdas v. The Independent State of Papua New Guinea [1979] P.N.G.L.R. 329.
Appeal
This was an interlocutory ruling during the course of an appeal to the Supreme Court on the question whether the detention of the appellants under the Migration Act 1978 was valid.
Counsel
J. Gawi, for the appellants.
O. B. Emos and J. Goodman, for the respondents.
Cur. adv. vult.
24 September 1982
KAPI DCJ KAPUTIN MCDERMOTT JJ: At the conclusion of his submissions on the merits of the appeal, counsel for the appellants raised the question of whether the detention in custody of the appellant Mr. Perryman is unlawful.
He puts two submissions to us. First, that the detention by the Minister for Foreign Affairs and Trade under the provisions of the Migration Act 1978 is inconsistent with s. 159(3)(a) of the Constitution and therefore Mr. Perryman should be released. This submission was put on the basis that the detention by the Minister under s. 14 of the Act is in effect an imposition of a sentence of imprisonment. It is said that an imposition of a sentence of imprisonment can only be given by a person or body within the National Judicial System. It is submitted that the Minister is not a person within the National Judicial System and therefore s. 14 of the Migration Act 1978 which gives the Minister the power to detain is inconsistent and therefore invalid. In our view this argument cannot succeed. The real issue is whether the Minister under the provisions of the Migration Act can deprive the liberty of the appellant for the purposes of deportation? The liberty of every person is protected under s. 42 of the Constitution. This provision also sets out the exceptions where the liberty of the person may be deprived. We draw attention particularly to s. 42(1)(b) where a person’s liberty may be deprived by an imposition of a sentence of imprisonment; s. 42(1)(d) where a person’s liberty may be deprived if he is suspected of committing an offence and s. 42(1)(g) of the Constitution where a person’s liberty may be deprived for purposes of effecting expulsion from the country, that is deportation. We have drawn attention to these provisions because the Constitution makes a distinction between the imposition of a sentence and other forms of deprivation of liberty. Section 159(3) of the Constitution deals with imposition of imprisonment or other penalties. It does not deal with other forms of deprivation of liberty as are enumerated in s. 42 of the Constitution. We find that detention for purposes of deportation under s. 14 of the Migration Act is not an imposition of penalty or imprisonment and is specifically provided for under s. 42(1)(g) of the Constitution. We therefore find that s. 159 of the Constitution has no application to the present case. We find that the detention by the Minister under the Migration Act is therefore lawful.
The second submission was based on s. 42(5)(b) of the Constitution. There are two parts to this provision. First, the court has to be satisfied that the detention is lawful. We have already found that the detention is lawful under the Migration Act.
As we understand the submission of counsel he further relies on the second part of s. 42(5)(b) in that the appellant Mr. Perryman is detained unreasonably. In our opinion the second part of s. 42(5)(b) of the Constitution applies only to persons arrested or detained on remand pending their trial. We therefore find that this does not assist the appellant.
Section 20 of the Migration Act provides that no act relating to the removal of a person from the country is open to review or challenge in any court on any ground whatsoever. This provision was held to be valid as not violating the inherent power of review of the Supreme Court. The power of review in the Supreme Court only relates to judicial authority. The power exercised by the Minister is administrative. See Premdas v. The Independent State of P.N.G. [1979] P.N.G.L.R. 329. However, this provision would not exclude the Supreme Court from enforcing any constitutional rights or breaches of the Constitution. The question to ask here is whether the appellant has any constitutional right to be released from this detention? We do not see any such right in existence under the Constitution (except perhaps a consideration under s. 41 of the Constitution). The constitutional right to bail under s. 42(6) of the Constitution only relates to persons detained for a criminal offence. It does not apply to persons detained for purposes of deportation. We are not satisfied that the detention by the Minister breaches any provisions of the Constitution. Section 20 of the Migration Act prevents this Court from reviewing the reasonableness of the detention.
We note that counsel did not rely on s. 41 of the Constitution in relation to the detention of the appellant. The onus is on the party alleging that an act is unlawful. Prentice C.J. in the Premdas case said, at p. 344:
“The criteria put forward in the section are clearly questions of fact. Both counsel concur in the submission that in assessing the quality of the relevant facts the test should be an objective one.”
There is absolutely no evidence before this Court in relation to the question of detention of the appellant. We find that there are no facts which give rise to the consideration of s. 41 of the Constitution. We therefore refuse to grant the application to release the appellant from detention.
Ruled accordingly.
Solicitor for the appellants: Richard Major, Gawi & Associates.
Solicitor for the respondent: O. B. Emos, State Solicitor.