N525

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

JOSEPH LEMUEL RAZ

V

PAULUS MATANE, JOHN GIHENO, ANTHONY BAIS, 
FRANCIS PUSAL AND BEBES KOROWARO

Waigani
McDermott AJ

9-11 December 1985
30 January 1986

CONSTITUTIONAL LAW - Action under s 41 - Right to challenge act done under valid law - Essentials of cause of action - Constitution, ss 23(2), 41, 155(4).

CONSTITUTIONAL LAW - Action under s 41 - Challenge to act done under valid law - Extends to decision under Migration Act (Ch No 16) - Alien may bring proceedings - Constitution, s 41.

ADMINISTRATIVE LAW - Administrative functions - Executive discretion - Ministerial power - Statutory Committee of Review - Scope of power - When open to review - When challengeable under Constitution, s 41 - Migration Act (Ch No 16) - Constitution, s 41.

IMMIGRATION AND ALIENS - Aliens - Rights of - Right to bring proceedings under Constitution, s 41 - Challenge to act done under valid law - Extends to decision under Migration Act (Ch No 16) - Whether "legitimate expectation" of fair hearing - Constitution, s 41.

CONSTITUTIONAL LAW - Action under s 41 - Particular cases - Deportation order - Challenge to acts of Committee of Review under Migration Act - Denial of reasonable expectation of presenting material - Acts based on circumstantial evidence - Decision quashed - Migration Act (Ch No 16) - Constitution, s 41.

IMMIGRATION AND ALIENS - Aliens - Deportation - Cancellation of entry permit - Applicability of rules of natural justice.

EVIDENCE - Privilege - Public interest claim - State papers - National security - Action under Constitution, s 41 - Challenge to act done under Migration Act - Nature of cause of action requiring disclosure - Constitution, s 41.

In January 1985 the Minister for Foreign Affairs and Trade acting on the advice of members of his Department revoked the entry permit of R, an alien, pursuant to the Migration Act (Ch No 16), s 7 and s 13. R requested the appointment of a Committee of Review under the Migration Act, s 6(3), to review the decision and was notified by the Minister that he would be informed "when the Committee would commence to meet to hear the appeal" and further advised that "written statements and other documentation might be forwarded to the Department on the matter". A request for reasons and/or particulars was not replied to. In June R received a letter from the Minister advising him that the Committee of Review had met some three weeks prior to the date of the letter and had unanimously upheld the Minister’s decision.

R then brought proceedings in the National Court pursuant to the Constitution, s 41, alleging that an "act done under a valid law", being a decision of the Minister for Foreign Affairs and Trade to revoke his entry permit under the provisions of the Migration Act was "harsh or oppressive" or "not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind" or was "not warranted by or disproportionate to the requirements of the particular circumstances of the particular case", and seeking to have the decision quashed.

On a reference to the Supreme Court (SCR No 5 of 1985, Re Raz v Matane [1985] PNGLR 329), that court determined that the Constitution, s 41 confers a right of action enforceable under s 23(2) or s 155(4).

Held

(1) The right to challenge an act done under a valid law under the Constitution, s 41, extends to a review of a decision of the Minister or a Committee of Review lawfully made under the Migration Act.

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

(2) The question for determination when an act done under a valid law is challenged under the Constitution, s 41, is whether the act was "harsh or oppressive" or "not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind" in the particular circumstances.

(3) An alien is not prevented from bringing proceedings under the Constitution, s 41.
Quaere whether the rules of natural justice afford an alien a "legitimate expectation" of being entitled to a fair hearing before a decision adversely affecting his interests is made under the Migration Act.

Premadas v Independent State of Papua New Guinea [1979] PNGLR 329, doubted.

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, considered.

(4) The act of exercising an executive discretion such as that under the Migration Act to revoke an entry permit, must be real: matters which ought to be considered must be considered; conversely irrelevant collateral matters must be disregarded. When the discretion is exercised within the ambit of considering what is relevant the Court cannot intervene, except where the conclusion nevertheless reached is so unreasonable in the sense that it is a decision that no reasonable body could have come to.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064, followed.

(5) Where the Court is asked to intervene in the exercise of such a discretion the question for the Court to determine is whether the decision-maker asked himself the right question and took reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064, followed and applied.

Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 29; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119-120, considered.

(6) In the circumstances, to deny to the plaintiff the "reasonable expectation" of presenting material to the Committee of Review for its consideration was "harsh" or "oppressive" within the meaning of the Constitution, s 41.

(7) To confirm the Minister’s acts based upon the recommendation made in his Department’s submission and upon the material available for consideration resulted in an act "which in the particular circumstances was not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind" within the Constitution, s 41.

(8) The decision of the Committee to Review should be quashed.

Held Further

(9) A public interest claim for non-disclosure of documents upon which the claim under the Constitution, s 41, was based could not, because of the nature of the action, the allegations and the claims, be maintained.

Conway v Rimmer [1968] AC 910; Sankey v Whitlam (1978) 142 CLR 1, considered.

Cases Cited

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; [1983] 2 All ER 624.
Auten v Rayner [1958] 1 WLR 1300; [1958] 3 All ER 566.
Brookes v Prescott [1948] 2 KB 133.
Conway v Rimmer [1968] AC 910.
Duncan v Cammell Laird & Co Ltd [1942] AC 624.
Edwards (Inspector of Taxes) v Bairstow [1956] AC 14.
Parramatta City Council v Pestell (1972) 128 CLR 305.
Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100.
R v Governor of Brixton Prison: Ex parte Soblen [1963] 2 QB 243.
R v Inspector of Leman Street Police Station; Ex parte Venicoff [1920] 3 KB 72.
R v MacKellar; Ex parte Gaunt (1978) 20 ALR 119.
R v Secretary of State for the Home Department; Ex parte Hosenball [1977] 3 All ER 452.
Rogers v Home Secretary [1973] AC 388.
SCR No 1 of 1984: Re Default Penalties [1984] PNGLR 418.
SCR No 5 of 1985, Re Raz v Matane [1985] PNGLR 329.
Salemi v MacKellar (No 2) (1977) 137 CLR 396.
Sankey v Whitlam (1978) 142 CLR 1.
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149.
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014.
Seeto, Eric v Minister for Foreign Affairs and Trade (Unreported, National Court judgment, dated 4 March 1985).

Application to Review

This was an application for orders, in the nature of certiorari, to bring into the Court and quash certain decisions of a Committee of Review appointed pursuant to the Migration Act (Ch No 16), s 6(3), confirming the revocation by the Minister for Foreign Affairs and Trade of an entry permit to the plaintiff.

Counsel

T Griffiths, for the plaintiff.
C Narokobi, for the defendant.
Cur adv vult

30 January 1986

MCDERMOTT AJ: On 9 December 1985 I gave short reasons on preliminary objections. I now publish my reasons in full.

RULINGS

This matter began as an application for judicial review of the decision of a Committee of Review appointed pursuant to the Migration Act (Ch No 16) s 6(3). The Committee on 7 June 1985 confirmed the decision of the Minister for Foreign Affairs and Trade of 3 January 1985 to revoke the entry permit issued to the plaintiff and to then deport him.

The Minister exercised his powers under s 7 and s 13 of the Migration Act. Section 19 of the Act precludes an appeal from their decisions in the following terms:

"(1) Without limiting the generality of subsection (2), the expression ‘review or challenge’ in that subsection includes:

(a) a writ of certiorari, prohibition or mandamus or other form of prerogative writ, or other writ, order or process in the nature of such a writ; or

(b) proceedings by way of appeal or for a writ, order or process referred to in paragraph (a) (including proceedings for an order nisi or to show cause why relief should not be granted).

(2) An act, proposed act or decision of the Minister relating to the grant or cancellation of an entry permit or to the removal of a person from the country, or any decision of a Committee of Review under Section 6, is not open to review or challenge in any court on any ground."

The Supreme Court, following a reference (SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329), decided, on 27 November, that the plaintiff had a right of action under the Constitution, s 41; that is, the "act" of the Committee could be examined to see if it was in breach of the conditions set out in that section. The plaintiff could seek a remedy based on the Constitution, s 23(2) or s 155(4).

In pursuance of this the plaintiff has asked, inter alia, for orders to bring into this Court and quash the Committee’s decision or alternatively for declarations concerning the actions taken against him.

A number of preliminary matters have been raised.

1. Claim to privilege over documents subpoenaed by the plaintiff

Subpoenas were directed to secretaries of the Departments of Labour and Employment, Foreign Affairs and Trade and to the Director, National Investment and Development Authority (NIDA) to produce files relating to the plaintiff and to his employer. It is on the subpoena directed to the Department of Foreign Affairs and Trade that a claim to privilege and nondisclosure has been raised. The claim is made in two affidavits; the first, by Mr Matane, the Secretary, who states:

"(i) that all or any of those documents mentioned by the plaintiff are privileged within the meaning of National Intelligence Organization Act of 1984 (and are therefore beyond my power), the National Constitution (Chapter 1) and the National Court Rules.

(ii) that in any event, even if the above mentioned privilege does not apply, the plaintiff, not being a citizen of PNG has no right whatsoever of reasonable access to official government documents."

The nature of the privilege is said to be:

"(a) documents relate to national security, defence and international obligation and are intended only for governmental use.

(b) documents are prepared by governmental authorities and are non complete.

(c) documents relate to lawful official activities for investigation and prosecution of crime and consequently the names and identities of officials concerned should not be revealed.

(d) documents relate to preparation, investigation and prosecution and prevention of crime.

(e) it is not in the best interest of law and order of PNG for the documents to be produced.

(f) documents relate to personal privacy and security of the plaintiff."

He concludes by being "concerned" and "extremely concerned" as to what might happen if the information is disclosed.

The second and later affidavit is by the Deputy Secretary of the Department, Mr Dihm, to which is annexed two schedules of documents on which the claim is made.

The material in the first schedule concerns a National Intelligence Organisation (NIO) report of 18 March 1983. I have been advised by Mr Narokobi that there is no other updated material despite a letter (over which privilege is claimed) to that organisation, dated 3 December 1984, "requesting investigation into allegations against Joseph Raz". It is stated that the report is NIO. material and the Deputy Secretary has no power to produce it. No subpoena was issued to the Director of NIO I presume production is precluded by the National Intelligence Organisation Act 1984; that is, the report "is confidential and shall not be divulged to any person or authority other than the recipient without the express approval of the Director-General". However the report has been produced accompanied by a letter from the Director-General to the Chief Justice, leaving it to his Honour’s "discretion as to how the document should be used".

I am told by Mr Narokobi that there are no names appearing on the NIO papers which should not be divulged.

Although it was not made clear to me in the submissions, it appears from what is contained in the assertions of Mr Matane and from what was said in argument that Mr Narokobi makes the claim for non-disclosure on two grounds: first, it would be against the public interest to disclose its contents; and second, it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document. I have come to this conclusion from his sweeping assertion to privilege — the documents subpoenaed are State property, to release them would divulge NIO sources and he seeks to protect those sources of information. Further, foreigners should not have access to migration files which contain personal matters. He clothes these claims under the blanket of "public interest".

The State relies upon a number of authorities and I take them in order, commencing with Duncan v Cammell Laird & Co Ltd [1942] AC 624. That was a wartime case in which discovery was sought concerning disclosure of plans and specifications, thought relevant to explain the sinking of a submarine at trials. Many men lost their lives and a large number of claims on behalf of dependents were made against the shipyard. As a matter of public policy the Admiralty, not a party, claimed privilege and the Court (at 642) accepted the claim made by the executive:

"Although an objection validly taken to production, on the ground that this would be injurious to the public interest, is conclusive, it is important to remember that the decision ruling out such documents is the decision of the judge. Thus, in the present case, the objection raised in the respondents’ affidavit is properly expressed to be an objection to produce ‘except under the order of this honourable court’. It is the judge who is in control of the trial, not the executive, but the proper ruling for the judge to give is as above expressed."

For the present purpose it is salutary to note the grounds which Viscount Simon LC (at 642) thought afforded the Minister adequate justification to object to disclosure:

"It is not a sufficient ground that the documents are ‘State documents’ or ‘official’ or are marked ‘confidential’. It would not be a good ground that, if they were produced, the consequences might involve the department or the government in parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation. In a word, it is not enough that the minister of the department does not want to have the documents produced. The minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be damnified, for example, where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service."

This unquestioned acceptance of the executive objection continued to be the position in Auten v Rayner [1958] 1 WLR 1300 at 1309; 3 All ER 566 at 572, where the Court of Appeal clearly stated it to be as follows:

"In those circumstances [that is, the Secretary of State informing himself of relevant matters] we are of opinion that the form of the Secretary of State’s ‘certificate’ being on the face of it unimpeachable, and the conditions to which Viscount Simon LC referred in the Cammell Laird case [1942] AC 624 at 642 at least not being shown not to have been satisfied, the Court is bound to treat the certificate as conclusive."

In Conway v Rimmer [1968] AC 910, the House of Lords again examined the executive’s claim to privilege. As Lord Reid said of it (at 943):

"Two questions will arise: first, whether the court is to have any right to question the finality of a minister’s certificate; and secondly, if it has such a right, how and in what circumstances that right is to be exercised and made effective.

A minister’s certificate may be given on one or other of two grounds: either because it would be against the public interest to disclose the contents of the particular document or documents in question, or because the document belongs to a class of documents which ought to be withheld, whether or not there is anything in the particular document in question disclosure of which would be against the public interest."

The House made an exhaustive survey of the law on disclosure as it then stood. The case did not concern an action against the State but rather an action for malicious prosecution by a dismissed probationary constable against his superior, a superintendent. There were certain reports discovered on training and performance over which the Crown claimed privilege. The contents of the documents were not known by the constable and could have been important to his case.

There is a conflict of interest when claims to privilege are made, but one which can be resolved. Lord Reid concluded (at 952):

"I would therefore propose that the House ought now to decide that courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a minister, to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject a minister’s view: full weight must be given to it in every case, and if the minister’s reasons are of a character which judicial experience is not competent to weigh, then the minister’s view must prevail. But experience has shown that reasons given for withholding whole classes of documents are often not of that character."

Lord Morris of Borth-y-Gest was of a similar view that it is for the court to decide whether or not to uphold an objection to production of documents and said (at 971):

"The principle which the courts will follow is that relevant documents normally liable to production will be withheld if the public interest requires that they should be withheld. In many cases it will be plain that documents are within a class of documents which by their very nature ought not to be disclosed. Indeed, in the majority of cases I apprehend that a decision as to an objection will present no difficulty. The cases of difficulty will be those in which it will appear that if there is non-disclosure some injustice may result and that if there is disclosure the public interest may to some extent be affected prejudicially. The courts can and will recognise that a view honestly put forward by a minister as to the public interest will be based upon special knowledge and will be put forward by one who is charged with a special responsibility. As Lord Radcliffe said in Glasgow Corporation v Central Land Board [1956] SC (HL) 1, the courts will not seek on a matter which is within the sphere and knowledge of a minister to displace his view by their own. But where there is more than one aspect of the public interest to be considered it seems to me that a court, in reference to litigation pending before it, will be in the best position to decide where the weight of public interest predominates. I am convinced that the courts, with the independence which is their strength, can safely be entrusted with the duty of weighing all aspects of public interests and giving protection where it is found to be due."

Mr Griffiths has referred me to Sankey v Whitlam (1978) 142 CLR 1 in which a claim of privilege was made to the production of high level government papers including Cabinet documents. That was a case in which the claim to privilege was not on the basis that the contents of the documents would be harmful to the public interest but because the documents fell within a certain class which by their very nature ought not to be disclosed no matter what the documents, individually, contain. Gibbs ACJ (as he then was) said (at 39): "... the law recognises that there is a class of documents which in the public interest should be immune from disclosure." He listed such as, Cabinet minutes and minutes of discussions between heads of departments, papers brought into existence for the purpose of preparing a submission to Cabinet and documents which relate to the forming of government policy at a high level. This later group, in the words of Lord Reid, extended to "all documents concerned with policy-making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies": Conway v Rimmer (at 952). Gibbs ACJ therefore concluded that to give these documents immunity from disclosure "accords with the principles affirmed in that case", and he said (at 43):

"... I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection — the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made."

Whilst in the present case it was not specifically submitted that the documents concerned would fall within this class of, for want of a better term, "State papers", nevertheless I am left with that impression and therefore consider these remarks relevant in deciding the issue. Further, Mason J, again referring to this class of documents said (at 99):

"As the range of issues which engage the attention of the Executive Government is infinite and as the manner in which those issues are considered varies from case to case, it is impossible to lay down hard and fast rules which will provide universal answers. Each case here, as elsewhere, depends upon its own circumstances and it is only by a consideration of them that a correct balance will be reached."

Mr Narokobi has referred to Rogers v Home Secretary [1973] AC 388, presumably on the basis of it being authority for non-disclosure to protect informants. On my reading of the case it appears clearly distinguishable on the facts. The claim to non-disclosure came not from the contents of the document but from it belonging to a class, in that case, documents from informant sources, which should be protected. But I have been told for present purposes that no informant names are disclosed in the documents concerned. However there is another feature in that case which further distinguishes it — there was no suggestion that Rogers was not accorded all that natural justice required or that the Gaming Board, which had the document in question, acted otherwise than in good faith or in fact used the document in question to his detriment. Rogers had required the document for a later personal action against its maker.

I was referred to Brookes v Prescott [1948] 2 KB 133. I am not sure why as the case involved a ruling on an order for discovery where the objection to production was made on the basis that the documents related solely to the defendants’ case and did not support the plaintiffs’ case. But here all the information on which the deportation order was made is in the files subpoenaed. The claim of the plaintiff is very much bound up in those files. It relates to his case as much as it does to the defendant’s case.

In determining the issue, can the documents over which the privilege claim is made be examined by the court? As Lord Reid said in Conway v Rimmer (at 953):

"It appears to me that, if the minister’s reasons are such that a judge can properly weigh them, he must, on the other hand, consider what is the probable importance in the case before him of the documents or other evidence sought to be withheld. If he decides that on balance the documents ought to be produced, and thinks that it would generally be best that he should see them before ordering production and if he thinks that the minister’s reasons are not clearly expressed he will have to see the documents before ordering production. I can see nothing wrong in the judge seeing documents without their being shown to the parties."

Also, in Sankey v Whitlam, Gibbs ACJ said (at 46):

"Finally, the power of the court to inspect the document privately is clear, and once a court has decided, notwithstanding the opposition of a minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: see Conway v Rimmer at 953, 979, 981-982, 995; cf 971. However, where the objection is to the disclosure of a document because it belongs to a class, the minister, being represented, does not suggest that there is anything in its contents that ought to be withheld from production, there will not always be the same need to examine the document before ordering its production if the objection is overruled."

These considerations are just commonsense.

This is an action by a private person (not a citizen but a foreigner with a revoked permit to enter this country) against the Government in the person of those to whom he appealed after the revocation. At the heart of his action there has to be consideration of "harsh or oppressive", "not warranted by or disproportionate to the requirements of the particular circumstances of the particular case" and "not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind": see the Constitution, s 41.

I consider the cases to which I have referred are relevant in deciding how this objection should be determined. But in this jurisdiction there is a constitutional overlay without counterpart in England or in Australia. I really do not see how a s 41 based action can proceed without an examination of documents relevant to "acts" which are claimed to be in breach of that section. It is the section itself which gives this answer to privilege claims.

I have now examined the documents and it appears to me that the objection to the plaintiff remaining in the country comes from four sources:

1. A telex of the Administrative Secretary, West Sepik Province to the Minister for Justice, undated, but apparently typed out on the Minister’s stationery on 9 March 1983.

2. A National Intelligence Organisation report of 18 March 1983.

3. A letter from the Administrative Secretary, West Sepik Province to the Minister for Industrial Development, dated 14 September 1984.

4. A submission to the Minister by the Secretary, Department of Foreign Affairs and Trade, dated 2 January 1984.

These deal with Mr Raz only, a person given permission to live in this country, and contain serious allegations against him of breaches of the criminal and civil law. He says he can answer the allegations made against him in these reports and wished to make submissions to the Committee appointed to review the Minister’s order. Indeed he was advised by the Deputy Prime Minister on 29 January 1985 that he would be given this opportunity. It is clear that without these submissions only a very one-sided view was seen by the Committee as the allegations against the plaintiff do not appear to be properly investigated or substantiated by the original complainant or by any of the officers of the Department of Foreign Affairs and Trade who dealt with the matter subsequently. The documents over which privilege is claimed are thus at the heart of the plaintiffs claim. I am unable to see what State interest there could be except to show that the plaintiff may well have a strong case based on the Constitution, s 41. Because of the nature of the action, allegations and claims I am of the view that the claim to non-disclosure cannot be sustained against the claim for disclosure in the interest of justice.

2. Security for Costs

The State makes an application for security for costs. It is made late in the day for the substantive matter has commenced to be heard. The originating summons was filed on 16 July 1985 and the application for security was lodged by notice of motion filed 19 July. At a hearing on 27 July the court file is noted: "Application for security for costs stood over for further argument." On the next hearing date (11 September) the matter was side-tracked by the referral of a constitutional question to the Supreme Court. That decision was given on 27 November and subsequently the trial of the issues was fixed before me. Security was not raised in the meantime.

It is argued that the plaintiff ordinarily is resident outside this country but that has not been the case until his right of entry into this country was revoked. He commenced action for a review of that decision which culminated in these proceedings. Until January 1985 the plaintiff had lived here for about ten years. The very matter which is before the Court (the decision to deport) should not now be used as a means to get the plaintiff to provide security. The basis on which the deportation order was made is of special significance to the plaintiff as it could affect his later movement about in the international community. In the exercise of my discretion under the National Court Rules, O 14, r 25, I will not order the plaintiff to provide security.

3. Application out of Time

The whole basis of this action which commenced when the plaintiff sought a Committee of Review to examine his deportation is now questioned — the review was out of time. The plaintiff had no right to review because the Migration Act, s 6(2) says, "... the person on whom the notice (of cancellation of an entry permit) was served may, within seven days of the receipt of the notice, by written application to the Minister, request that the cancellation of the entry permit be reviewed by a Committee of Review". It is conceded by the plaintiff that this application was made outside the time prescribed. But no objection was taken and the review requested was put in train, as set out in the section. The Committee of Review made a decision on 7 June 1985. It is clear to me the time provision (and it does not appear to be a mandatory one) was waived by the Minister and the Committee. It is too late to say now that this was not so.

I overrule the objection.

4. Frivolous Proceedings (National Court Rules, O 12, r 40)

The plaintiffs right of action is the result of a decision of the Supreme Court in ruling that he has such a right of action. For him deportation is a serious matter with far-reaching ramifications. I simply fail to comprehend this objection and I overrule it.

DECISION

I have already referred to the basis on which this matter arises, that is, that acts of the Minister and Committee of Review in the exercise of powers under the Migration Act are subject to the Constitution, s 41. It appears to me that Mr Narokobi may not fully appreciate the import of that decision. The National Court now has jurisdiction to entertain a cause of action based on that section to investigate and determine if acts otherwise lawful become unlawful or invalid because they are harsh, oppressive, not warranted by or disproportionate to requirements or not reasonably justifiable in a democratic society in the particular circumstances. These are matters for objective assessment on the evidence available and that is the basis on which I will examine the plaintiffs claims.

Following from the reasons given to inspect the subpoenaed documents, the information contained therein was allowed to be tendered as evidence on the trial. Thus from oral evidence and from documentary evidence a full picture of the plaintiffs entry and activities whilst in this country emerges.

Mr Raz has not been told directly or indirectly by the Minister or officers of his department of the reasons for the cancellation and removal orders made against him. From what he has been told by another and from documents given to him he is able to surmise that the reasons relate to illegal activities including alleged dealings with the OPM rebels (Organisation Papua Merdeka). These are serious allegations indeed. The crux of his case is that the allegations against him are not true and he sought on subpoena information concerning these allegations which is now tendered on his behalf for the purposes of eliciting the truth about himself. The easiest way to assess the evidence is to take each allegation in turn.

THE ALLEGATIONS

[His Honour then considered the material before the Court which included the material upon which the recommendation of the Minister had been made and concluded that none of the allegations against Mr Raz were substantiated by the available evidence nor had any reasonable steps been taken to verify the truth of the reports upon which they were based.]

SUBMISSIONS TO COMMITTEE

On 28 January 1985 the lawyers for Mr Raz requested appointment of a Committee of Review. They were informed the next day by the Deputy Prime Minister, then acting Foreign Minister, that:

"My Department will be in touch with you shortly to inform you when the Committee of Review is to commence a meeting to hear the appeal.

It is not the practice to allow personal representations at such hearings. However, written statements and any other documentation may be forwarded to the department which you may consider justified in making a fair presentation for your client."

The lawyers then requested reasons for the actions taken against their client and began to assemble information for presentation to the Committee. This included a very full statement by Mr Raz, his contract of employment, statements of support from the West Sepik Premier, Bishop, Police Football Club and a petition signed by 154 people. There were also official records and approvals to which I have already referred. This information has been tendered as evidence before me.

Not another word was heard from the Department until Mr Raz received from the Minister a letter dated 28 June 1985 saying:

"I have been informed by the Ministerial Committee of Review into the cancellation of your entry permit that the Committee convened on 7/6/85.

The Committee after considering your appeal has unanimously upheld the Minister for Foreign Affairs and Trade’s decision in cancelling your entry permit."

I am at a loss to understand how the Minister and Committee in this case could properly carry into effect the requirements in s 6(4) and (5) of the Migration Act if Mr Raz was not told of the reasons, if not necessarily the particulars, and if the commitment to allow presentation of information was not honoured.

APPLICATION OF S 41

What is to be made of this evidence? Mr Narokobi makes a number of submissions which cannot be sustained partly because of, and despite argument, he still does not appear to fully appreciate the nature of this action and of what was said in SCR No 5 of 1985; Re Raz v Matane. So that there is no doubt about this cause of action I will repeat what was there said by the Chief Justice (at 330):

"There is in my opinion, no doubt that s 41 of the Constitution confers a right — the right to challenge an act done under a valid law." (and at 332) "Section 41 creates a right but does not directly prohibit or restrict an act nor does it directly impose a duty. But in my view it does indirectly prohibit or restrict an act and also indirectly imposes a duty. A person empowered to do an act under a valid law is restricted or prohibited indirectly by s 41 from acting harshly or oppressively, etc."

Also, the Deputy Chief Justice said (at 336-7):

"The provision deals with acts that are empowered to be done or are allowed to be done by a valid law. The provision sets out the circumstances, (s 41(a), (b) or (c)) under which such acts may be held unlawful or invalid. The whole thrust of the provision is directed at these actions .... [A]ny person aggrieved by acts which are prohibited by s 41(a), (b) or (c) may seek judicial remedy in terms of the provision. That is ..., he has a cause of action upon which he may make an application to a court .... Such a cause of action arises or is constituted at the time these actions are taken."

However Amet J favoured a more limited role for s 41 and whilst I have differed on his view of the nature of this "right", I too, in agreement with Bredmeyer J in SCR No 1 of 1984; Re Default Penalties [1984] PNGLR 418 limited an action under s 41 to rights set out in the Constitution. But on this issue we were in the minority; Kidu CJ, Kapi DCJ and Kaputin J favoured a wide interpretation for the section, and that is the present state of the law and how this case has thus come to pass.

It is submitted that SCR No 5 of 1985; Re Raz v Matane does not extend a s 41 action to a review of the decision of the Minister or of the Committee taken lawfully under the Migration Act. Basically it is this: government officials must not be impeded in making reports which are necessary for the protection and integrity of the country for when the State is dealing with a foreigner it must have mobility to act on information, even if it is untrue. To interpret s 41 to mean a review of administrative decisions to see if they are unlawful would throw open and challenge the whole process of government officials exercising their functions under legislation.

In support of this argument Mr Narokobi referred me to a number of authorities: R v Inspector of Leman Street Police Station; Ex parte Venicoff [1920] 3 KB 72; R v Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243; Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149; Salemi v MacKellar (No 2) (1977) 137 CLR 396 and R v MacKellar; Ex parte Gaunt (1978) 20 ALR 119. But he confuses the issue. Whilst these cases apparently restrict the right to be heard which aliens may have, that is quite a different thing from saying that they are similarly authority for the proposition that they restrict aliens from an action under the Constitution, s 41. That section is not confined to citizens. The "act that is done under a valid law" is not confined to particular legislation. There is nothing to suggest that the Migration Act is above investigation. One only has to read those cases to understand how each of the questioned deportation orders came about. As Lord Denning said in Soblen (at 302):

"The courts can always go behind the face of the deportation order in order to see whether the powers entrusted by Parliament have been exercised lawfully or not. That follows from R v Board of Control; Ex parte Rutty [1956] 2 QB 109."

In this country such an action has a constitutional base, that is what the Constitution, s 41, does; it not only facilitates such an inquiry but directs the course of it as well, notwithstanding s 19 of the Migration Act.

Mr Narokobi seeks to distance government officials from the Minister by submitting that the responsibility to check or double check reports is not necessarily that of the official concerned. It is up to the department or minister responsible to choose to do so and since deportation is the decision of the Minister alone, it is only at his direction that any verification need be made of reports and investigations. The corollary being that the actions of officials could not be said to fall within the strictures of s 41. Therefore if there is no evidence to show the Minister acted unlawfully the plaintiff cannot succeed.

But, his argument overlooks the fact that the Minister acted upon advice and the same can be said of the Committee of Review. The advice and subsequent actions are inextricably linked. That is abundantly clear from the departmental file. It was only after much argument conceded that the Minister was entitled to rely upon the truthfulness of the submission put to him. That is a different thing from saying that the Minister is not required by law to rely upon the truthfulness of the submission. I will return to the issue of truthfulness later.

R v Secretary of State for the Home Department; Ex parte Hosenball [1977] 3 All ER 452 is quoted in support of the argument that if the report against the plaintiff relates to national security, even if not verified, subsequent action against him could not be said to be unlawful, or even to be harsh or oppressive etc. Mr Hosenball was a foreign national, resident and working in England as a journalist. He had been associated with the publication of an article concerning communication monitoring by the Government. Some months later he was advised that he was to be deported, the reason given was that, "... in consort with others, sought to obtain and has obtained for publication, information harmful to the security of the United Kingdom and that this information has included information prejudicial to the safety of the servants of the Crown ...". On receipt of this information he sought to obtain particulars in order to meet these charges before a hearing of three persons appointed for this purpose and who in turn would report to the Minister. This was a special procedure used in "national security" cases. It was purely administrative in nature without legislative requirement. The particulars which he sought were such that if given would "give away" intelligence sources. The particulars were not supplied. However, Mr Hosenball was heard and the decision to deport affirmed. He sought an order of certiorari to remove into court and quash the Minister’s decision.

The difference between that case and what is before me is immediately apparent. If the State seeks comfort from it, the remarks of Lord Denning must first be taken seriously and the State must first establish the necessary ground rules. It is worth quoting his conclusion in full (at 461):

"There is a conflict here between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law. It is for the Home Secretary. He is the person entrusted by Parliament with the task. In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England. Both during the wars and after them, successive ministers have discharged their duties to the complete satisfaction of the people at large. They have set up advisory committees to help them, usually with a chairman who has done everything he can to ensure that justice is done. They have never interfered with the liberty or the freedom of movement of any individual except where it is absolutely necessary for the safety of the State. In this case we are assured that the Home Secretary himself gave it his personal consideration, and I have no reason whatever to doubt the care with with he considered the whole matter. He is answerable to Parliament as to the way in which he did it and not to the courts here."

Whilst I do not know what was put to the Committee, I am assured that nothing more than what is before me was considered. What becomes abundantly clear from the English cases cited is the scrupulous care taken, by the Civil Service and Minister concerned, before deportation action is taken. The seriousness of such a measure is well recognised by all concerned and the judiciary appreciates and respects this prior careful examination.

"LEGITIMATE EXPECTATION" OF HEARING

Since Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 the law surrounding the Constitution, s 41, has moved on. It is now clear it provides a right of action. The section itself provides the basis of investigation for such an action. I therefore have some disquiet that the dissenting view of Wilson J on the applicability of the rules of natural justice to cases where an alien has a "legitimate expectation" of permission to remain, as he expressed in that case (at 380 and following) may now be the correct view. However I am bound by the majority view in that case.

In this context it is appropriate to mention one case which appears to go against all that Mr Narokobi submits. It is Attorney-General of HongKong v Ng Yuen Shiu [1983] 2 AC 629. It concerned a person who entered the colony illegally. Four years later the Government announced it would interview such persons and, without guarantee, consider each case on the merits to determine if the person could remain. Shiu reported, was interviewed, then detained pending a removal order. The Privy Council considered "legitimate expectation" in the context of Shiu being entitled to a fair hearing before a decision adversely affecting his interests is made by a public official or body following the government announcement (at 636):

"The phrase ‘legitimate expectation’ in this context originated in the judgment of Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 at 170. It is in many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 404 Barwick CJ construed the word ‘legitimate’ in that phrase as expressing the concept of ‘entitlement or recognition by law’. So understood, the expression (as the learned Chief Justice rightly observed) ‘adds little, if anything, to the concept of a right’. With great respect to the learned Chief Justice, their Lordships consider that the word ‘legitimate’ in that expression falls to be read as meaning ‘reasonable’. Accordingly ‘legitimate expectations’ in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864. So it was held in R v Board of Visitors of Hull Prison; Ex parte St Germain (No 2) [1979] 1 WLR 1401; 3 All ER 545 that a prisoner is entitled to challenge by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it."

Of particular significance is this conclusion (at 638):

"Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien, just as much as when he is a British subject. The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.

In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the government of Hong Kong to the respondent, along with other illegal immigrants from Macau, in the announcement ...."

EXECUTIVE DISCRETION

The development of administrative law elsewhere as canvassed in Premdas is relevant and both counsel seek its support: for the defendants, because the matter at issue is solely the responsibility of the executive arm of government; for the plaintiff, because either there is no evidence on the matter or alternatively that the exercise of the discretion in relation to the matter was so unreasonable that this Court should intervene.

The exercise of a discretion must be real, matters which ought to be considered must be; conversely irrelevant collateral matters must be disregarded. Where the discretion is exercised within the ambit of considering what is relevant the court cannot intervene, except where the conclusion nevertheless reached is so unreasonable, "... in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether": see Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. This has been further expounded in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064 where Lord Diplock said:

"My Lords, in public law ‘unreasonable’ as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt."

The case involved ministerial intervention in the adoption and implementation of a new policy proposed by a local education authority. Contrary to the view of the authority, the Minister came to the conclusion that the time available before the commencement of term was insufficient to permit its implementation without considerable difficulties:

"It was for the Secretary of State to decide that. It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, per Lord Greene MR, at 229. Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly? ..." (At 1064-1065.)

In my view this question posed by Lord Diplock is the succinct expression of the issue in the present case.

The conclusion reached in Australia is the same as in England: see Parramatta City Council v Pestell (1972) 128 CLR 305. But now in that jurisdiction the legislature has interposed the Administrative Appeals Tribunal. That in itself is indicative of shortcomings in the previous access to review of administrative acts, including migration decisions.

FINDINGS OF FACT

On the question of no evidence Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 is cited where Viscount Simonds (at 29) said:

"For if is universally conceded that though it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained .... The primary facts, as they are sometimes called, do not, in my opinion, justify the inference or conclusion which the commissioners have drawn ...."

Mr Griffiths also relies upon the following statement of the High Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119-120:

"But the chief point of difficulty in the case lies in the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other hand the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends. It is not enough if the board or the delegate of the board, properly interpreting pars (a) and (b) of s 23(1) and applying the correct test, nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact."

ACTION OF NO IMPORTANCE

I do not think there is any need for me seriously to consider the final and astonishing submission put on behalf of the defendants. It is this: the court action taken by Mr Raz is not important enough to warrant a decision which would challenge or declare the actions of government officials and the Minister to be contrary to the Constitution, s 41. Mr Raz has sought a remedy to remove the mark of Cain which the deportation order has placed upon him in the international community. Whilst I appreciate this could be of no consequence to the State, it is to Mr Raz.

CONCLUSION

Commencing with the proposition that the public at large in a democratic society is entitled to expect that those entrusted with duties under an Act will exercise that power reasonably, honestly and competently, I do not consider these expectations have been realised in this instance. It is not a requirement that the Minister or Committee make decisions on matters according to any onus of proof required by a court of law. If reports on matters are competently presented, supported by facts honestly investigated and from which reasonable conclusions can be drawn then when subsequent acts based on these conclusions are done under valid legislation by those charged with that responsibility, a court is in no position to come to a different conclusion in order to say that the strictures of the Constitution, s 41, have not been met.

I have earlier mentioned "truthfulness", as that was the word I used during argument on submissions from counsel. Perhaps it is a slightly misleading word but in my view it is linked with the honest and reasonable investigation of the public servants concerned in making submissions on the facts assembled by the Department. The investigation and therefore the reasonableness of any action recommended in the Department’s submissions to the Minister leaves a great deal to be desired. In my view the evidence exposes the Department and the National Intelligence Organisation as having scant regard for responsibility and integrity. The evidence does not even support a reasonable suspicion let alone anything more substantial. I repeat what I said during argument: I can appreciate why the Minister and Committee came to act as they did, supported as they were by the Department’s submission. Perhaps the ten year period which has elapsed since Independence is insufficient time to develop the kind of responsibility in this sensitive area which is seen in the cases from elsewhere. I have a great deal of sympathy for the Minister. He, with many other responsibilities and duties, was entitled to rely upon the submission put to him. Just because he did not question it, the truthfulness or reasonableness of the submission is not thereby strengthened or improved. Only to a limited extent can this sympathy apply to the actions of the Committee. By its very nature some questioning is implicit in the statutory duty of the Committee. However, any censure of the Committee is reserved as I simply do not know what was before it.

Ultimately, it is the Minister and Committee who answer for their actions. The submission that they themselves did nothing unlawful is not an answer. The unlawfulness to be considered here arises as a result of applying the facts and the legal considerations, which I have just discussed, to the provisions of the Constitution, s 41.

On the balance of probabilities, I find that:

(1) to deny Mr Raz the "reasonable expectation" of presenting material to the Committee for its consideration was "harsh" and "oppressive"; and

(2) to confirm the Minister’s acts based upon she recommendation made in his Department’s submission and upon the material available for consideration resulted in an act "which in the particular circumstances was not reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind".

ORDERS

The plaintiff has sought a number of orders. In the circumstances I make an order in the nature of certiorari and the decision of the Committee of Review dated 7 June 1985 is removed to this Court and quashed.

From what I have said I do not consider the plaintiff entitled to orders relating to the applicability of the rules of natural justice or for the provision of reasons for the acts of the Minister or of the Committee.

I do not consider it appropriate for this Court to declare the presence of the plaintiff in this country to be "not unlawful" for the purposes of s 12(1) of the Migration Act. That remains, essentially, an executive decision. The plaintiff already has his remedy on what is before me.

There are two further orders sought which relate to the plaintiffs present situation: (1) his present application for an entry permit; and (2) his application for citizenship which now have to be considered, and considered by those responsible for these duties, in the light of what I have found.

I have before me a copy of the application for citizenship dated 2 March 1982. In 1983 Mr Raz inquired of its progress with a Mr Baruli in the Department of Foreign Affairs and Trade at Waigani and was advised to wait until he received a letter from the Citizenship Committee. In late 1984 after hearing that such a Committee had met he inquired further of a Mr Danilan a member of this Committee for the West Sepik. He said they were only asked to consider another person. Now, no one in Waigani appears to know anything of this application. This is the second occasion in this Court where this has occurred: see unpublished decision of Barnett AJ in Eric Seeto v Minister for Foreign Affairs and Trade (Unreported, National Court judgment, dated 4 March 1985). I accept that Mr Raz made an application for citizenship and that his application is still outstanding. As Mr Saulep is the Chairman of the West Sepik Committee, it would not be prudent for him to chair the committee on this occasion.

I do not consider it appropriate for the Court to make orders relating to the exercise of the discretion in these applications. It is a matter for those concerned to exercise their discretion according to law. However I can make supplementary orders to enable the plaintiffs applications to be dealt with. I order that no action be taken by the Minister for Foreign Affairs and Trade to remove Joseph Lemuel Raz from Papua New Guinea until determination of his (1) application for citizenship; and (2) application for entry permit. If he is unsuccessful in (1) and (2) he be given fourteen days to leave.

As there has been a change in parties I order that William Dihm and Legu Vagi be substituted for Paulus Matane and John Giheno respectively.

I order the defendants to pay the plaintiffs costs. Because of the nature of this action, the claim to and establishment of a constitutional remedy against the acts of the State, both in the exercise of my discretion and pursuant to the Constitution, s 23, I order the defendants to pay, additionally, the plaintiffs lawyer/client costs.

Whilst the plaintiff and the Court has had access to the documents over which a claim for privilege was made it is neither necessary or desirable that they be available to the public. I order the Registrar to keep these exhibits in his custody until the appropriate period has elapsed and to return them to the departments concerned.

Orders accordingly

_______________________

Lawyers for the plaintiff: Beresford Love Francis & Co.
Lawyers for the defendants: Tomarum Konilio, Secretary for Justice.