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Reinhardt v Sir Julius Chan (Minister for Foreign Affairs and Trade), Parai Tamei (Director [1994] PGNC 20; N1311 (2 December 1994)

Unreported National Court Decisions

N1311

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 466 OF 1994
DENNIS REINHARDT - PLAINTIFF
V
SIR JULIUS CHAN (MINISTER FOR FOREIGN AFFAIRS & TRADE) - 1ST DEFENDANT
PARAI TAMEI (DIRECTOR-GENERAL, IMMIGRATION & CITIZENSHIP DIVISION) - 2ND DEFENDANT
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - 3RD DEFENDANT

Waigani

Brown J
2 December 1994

IMMIGRATION - Entry visa - Expired - Right to remain in country extinguished unless post facto approval given.

PEROGATIVE WRITS - Injunction to prevent Director General Immigration and Citizenship Division from proceeding with expressed direction to non citizens whose entry permit had expired, to leave the country - Material considerations.

The applicant whose entry permit had expired sought to prevent his forced departure from the country. He had had various extentions of the notice to depart, and had never been given any expectation that his visa would be extended whilst he remained in country. His application relied primarily on the balance of convenience, for he pleaded continued employment in Papua New Guinea.

The facts appear from the judgment.

Held

(1) Where the ability of a public authority to carry out its legislated function is frustrated, as it would be by injunction, protecting the public interest is the deciding factor and the balance of convenience is with the State.

(2) The Secretary of the Department of Foreign Affairs and Trade’s decision to impose a condition that an applicant for a visa (who is in country after expiry of a previous visa) should depart the country before making fresh application is not unreasonable and is no ground to stay the Director-General's decision to depart.

Counsel

Mr R Pato for the Plaintiff

Mr A Sampson for the Defence

2 December 1994

BROWN J: The applicant by notice of motion seeks orders restraining the Minister Department of Foreign Affairs & Trade, and Mr Parai Tamei, the Director General, Immigration & Citizenship Division from proceeding further with the expressed direction of the Department Head or Secretary Mr Gabriel Dusava for Mr Reinhardt to depart the country.

The short facts are that Mr Reinhardt was lawfully in country pursuant to a entry visa No E529/93. The Honourable Masket Iangalio seeks to retain him as his Press Secretary. Upon change of government, it became apparent that his continued right to remain in country was in issue. That is apparent from the letters forming part of Mr Reinhardt’s affidavit read today. What is no so clear, however, is the nature of his employment, whether with the former Prime Minister as an adviser as Mr Gabriel Dusava says or as Press Secretary and adviser to the then Minister for Finance & Planning Hon. Masket Iangalio. The terms of his employment, however, are not determinative of the issue here, for the right to remain in country is a matter for consideration under the relevant sections of the Migration Act Ch. 16 which, by s. 5(a) provides for the issue of an entry permit, subject to conditions. Conditions normally include for a non national, a condition that the applicant have a current work permit. Here, however, and it is not disputed, the entry visa No E529/94 expired and has not been renewed.

Mr Reinhardt says that because his application to remain in country has been denied pending determination of his application for renewal he has a triable question (which is a prerequisite before this Court will grant an interlocutory injunction), and secondly on the important principle of the balance of convenience, his personal circumstances on balance, out-weight any harm which may come to the State if the orders were made.

Mr Pato says that the triable question is whether “the order to leave” is harsh and oppressive or disproportionate in terms of s. 41 of the Constitution. That is not the issue in the originating summons, which must form the basis of the applicants claim of right, rather the applicant there seeks a declaration that the decision of the Department “not to grant an extension of time” to exit PNG is unlawful. Clearly the originating summons presupposes a right in the department to regulate those non nationals who seek to enter and remain in country. Mr Pato in fact said today that the authority of the State is not disputed and I take him to mean that the power to issue an entry permit resides in the authorised head of the Department Mr Gabriel Dusava in accordance with s. 5.

Mr Kwila Sampson makes the point, in the face of the Act, Mr Reinhardt is unlawfully in the country. S. 7 provides subject to sub (2) the presence of a person, other than a citizen in the country is unlawful if:

(a) he is not the holder of an entry permit; or

(b) he evaded an etc.

Clearly then, and it is not disputed, his permit expired on the 13 September, over two months ago.

On the balance of convenience, since the Secretary has determined not to consider a fresh application for visa until Mr Reinhardt has exited the country, Mr Kwikla Sampson says Mr Reinhardt has no reasonable expectation for special treatment by way of remaining pending determination, for the Secretary’s correspondence in no way can give that impression. With that I have to agree, for the Secretary consistently tells Mr Reinhardt to leave and to make application then.

On the other hand, Mr Reinhardt says his personal circumstances coupled with the fact of his present engagement to the member Masket Iangalio, and the precedent set by others of who have supposedly remained in country in similar circumstances whilst their visas have been renewed, all meet the balance of convenience criteria and justify his continued presence.

The crucial fact, however, is that he no longer has a valid entry permit or visa. Where a public authority in this case, the Secretary of the Department of Migration, is prevented from exercising its statutory powers by the intervention of a Court order such as the injunction sought in this case, then the public interest, of which that Secretary is the guardian, suffers irreparable harm.

The issue of convenience is not to be decided on the basis of the applicant’s family considerations alone, where the ability of a public authority to carry out its legislated function is frustrated, as it would be by injunction, protecting the public interest is the deciding factor and the balance of convenience must be with the State. Any application for judicial review of the Secretary’s or Mr Tamai’s refusal to consider the application for extension is not fettered by Mr Reinhardt’s absence. Mr Curran’s application pursuant to s. 41 was pursued in his absence.

I cannot agree with Mr Pato’s definition of the triable question. The original summons concedes the right in the Head of the Department to issue visas under s. 5. Consequently the question of the balance of convenience remains, and shall be answered in favour of the State.

For the reasons that I have given, the application to stay is refused.

State seeks applicant to pay costs so ordered.

Lawyer for the Plaintiff: Pato Lawyers

Lawyer for the Defence: Public Solicitor’s Office