N638

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MICHAEL ANDREW MUGRIDGE

V

MINISTER FOR LABOUR

AND

EMPLOYMENT - MASKET IANGALIO

Waigani
Amet J

23 October 1987

ADMINISTRATIVE LAW - Judicial review of administrative divisions - Practice and procedure - Leave to apply - Applicant to have "sufficient interest" - Refusal of work permit for non-citizen - Appeal to Minister rejected - Non-citizen has no legal or constitutional standing - National Court Rules, O 16, r 5.

MASTER AND SERVANT - Employment of non-citizens - Work permit - Application for by employer - Practice of entering country on temporary visa before permit granted improper - Non-citizen employee has no legal or constitutional standing without permit - Employment of Non-Citizens Act (Ch No 374), s 6.

Under the National Court Rules, O 16, r 5, the court shall not grant leave to apply for judicial review "unless it considers that the applicant has a sufficient interest in the matter to which the application relates".

Under the Employment of Non-Citizens Act (Ch No 374), s 6, an application for a work permit for a non-citizen is to be made by the employer prior to engaging the non-citizen in any occupation.

A non-citizen, having been offered a contract of employment which he had accepted entered the country on a temporary admission visa and commenced work. His employer then applied for a work permit under the Employment of Non-Citizens Act which was rejected. The employee appealed therefrom to the Minister and that appeal was refused.

On an application by the non-citizen for leave to apply for judicial review of the decision of the Minister refusing the appeal,

Held

(refusing the application) The applicant did not have "a sufficient interest" as required by the National Court Rules, O 16, r 5. As an application for a work permit is required under s 6 of the Employment of Non-Citizens Act to be made by the employer "prior to engaging a non-citizen" in any occupation, and as under the scheme of that Act the employment of non-citizens, their entry into the country and their consequent employment in the country are dependent on the work permit being granted and the right to grant or not to grant such a permit is a sovereign right, a non-citizen to whom a work permit has not been granted has no legal or constitutional right or standing to seek any redress from the court.

Application for Leave to Apply for Judicial Review

This was an application, made pursuant to the National Court Rules, O 16, r 5, for leave to apply for judicial review of a decision of the Minister for Labour and Employment.

Counsel

S Golledge, for the applicant.
Cur adv vult

23 October 1987

AMET J: This is an ex parte application by way of originating summons pursuant to O 16, r 3(1) of the National Court Rules seeking leave to apply for judicial review of the decision of the Minister for Labour and Employment the Honourable Masket Iangalio. I refused the application and said I would publish reasons later. This I now do.

The application is supported by a statement and an affidavit of the applicant as are required by the rules. I extract the essential facts giving rise to this application from the affidavit of the applicant. The essential facts are as follows:

1. That on 10 November 1986 the applicant commenced employment with Henao Cunningham and Company, Lawyers of Lae.

2. The period of that employment was to be considered at a later stage, after a trial period. No written contract was then entered into.

3. Due to personal differences between the applicant and his employer the applicant’s services were terminated on 22 May 1987.

4. The applicant then returned to Australia.

5. On 22 June 1987 the applicant was offered employment with the firm of Kirkes Lawyers in Port Moresby.

6. And on 15 July 1987 the applicant commenced employment with said Kirkes Lawyers in Port Moresby.

7. On 17 July 1987 Mr Julian Robert Thirlwall of Kirkes, Lawyers submitted an application for a work permit for the applicant to the Secretary of the Department of Labour and Employment, pursuant to s 6 of the Employment of Non-Citizens Act (Ch No 374).

8. On 5 August 1987 the Secretary for Department of Labour and Employment advised Mr Thirlwall of Kirkes that the application for a work permit for the applicant was refused. The Secretary advised that should Kirkes, Lawyers be aggrieved by or dispute the decision, then they were at liberty to appeal in writing to the Minister for Labour and Employment under s 7(5) of the Act.

9. Kirkes, Lawyers by letter dated 21 September 1987 lodged an appeal to the Minister pursuant to s 7(5) of the Act.

10. On 6 October 1987 Kirkes, Lawyers received the advice by the Minister by letter dated 30 September 1987 that the appeal was rejected.

Several other facts are important to complete the full circumstances giving rise to this application. It would appear that the applicant, upon being offered employment by Kirkes, Lawyers, had entered the country on a temporary admission entry permit for a period of two months from 15 July 1987. A copy of that entry permit endorsement was annexed to the affidavit materials showing that it was issued in Brisbane on 15 July 1987 for the sole purpose of employment with Kirkes, Lawyers and to remain for two months on temporary admission. The facts upon which this application for leave is based appear to be a practice quite common with the employment of non-citizens, that upon being given approval by the Labour Department to employ a non-citizen the employer proceeds to employ such non-citizen employee in the country prior to formal application for a work permit. It would appear that the employee would arrive in the country on similar short term temporary admission visas for two months or so, such as in the case of this applicant. It is my view that this practice is technically wrong. The applicant had entered the country on a temporary admission visa on being offered employment by Kirkes, Lawyers and entered into a contract of employment. It was submitted that the application is founded on the basis that the applicant had already commenced employment under a contract of employment, and so the refusal to grant a work permit by the Secretary of the Department of Labour and Employment and the rejection of the appeal by the Minister was in effect to adversely affect the pecuniary interests of the applicant, in that he would not be able to benefit from his contract of employment. It was submitted, therefore, that the applicant had "sufficient interest" as required under the National Court Rules, O 16, r 5, which provides that:

"The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates."

It was contended for the applicant that the fact of his having been offered a contract of employment which he had accepted and having entered the country and commenced employment, gave rise to "sufficient interest", so that the refusal by the Secretary, confirmed by the Minister in rejecting the appeal, was to, in effect, deprive the applicant of his contractual rights and pecuniary interests under his contract of employment.

There are a number of wrong assumptions and bases upon which this application is founded. First, as was quite manifest on the face of the application for the work permit and the appeal to the Minister and indeed as is required by s 6 of the Employment of Non-Citizens Act, the application for a work permit is to be made by the employer prior to engaging a non-citizen in any occupation: s 6(1)(a). I consider that that is the legal requirement because the non-citizen intending employee who is either in the country but not employed or is still in his country of origin really has no legal standing to make application in person. It is sensible that the intending employer should make such an application. The rights and obligations that fall under a contract of employment entered into between an employer and a non-citizen intending employee cannot be used as the basis for presuming or taking for granted that a work permit will necessarily be granted. It is my view that the employment of non-citizens, their arrival in the country for that purpose and/or commencement of employment under that contract of employment are entirely dependent upon a work permit being granted under the Act. And the fact of their already being employed or entering the country ought not be a consideration. The technical and proper position, in my view, notwithstanding the practice which has occurred over the years, is that if a non-citizen is to be employed from out of the country which, in my view, is one of the reasons for the application under s 6 to be made by the resident prospective employer, then the non-citizen intending employee should not enter the country on a temporary visa and more importantly should not commence employment until the lawful work permit is granted by the appropriate authority. It seems to me that the practice that has developed is to pre-empt the decision of the Labour Department and take for granted that that approval will be given. I consider, therefore, in these circumstances and similar circumstances where the practice which has grown of non-citizens entering the country on temporary visas, commencing employment and then seeking a work permit is wrong and most definitely in my view does not found "sufficient interest" thereby.

The legal position is that the application is not that of such an intending non-citizen employee but that of the intending employer. The intending employee in reality is outside of the jurisdiction, and does not have any legal or constitutional right or standing to seek any redress from this Court. If, as ought strictly to be the case, such an intending non-citizen employee is outside of Papua New Guinea and the application for work permit is made by the intending employer, then that intending employee loses nothing if the application is refused. He has no right, legal or constitutional in the first instance. The right to grant or not to grant a work permit is a sovereign right of this Independent Nation and the decision of the Minister is final and there is no legal or constitutional interest on the part of the intending employee that needs to be reviewed by any court in this jurisdiction.

The application for leave therefore is refused.

Upon intimation that an appeal may be instituted, I indicated that the 40 day appeal period should not run from the date of ruling but from the date of publication of the reasons.

Application refused

_____________________

Lawyers for the applicant: Kirkes, Lawyers.