N3826

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 63 of 2009

IN THE MATTER OF SECTION 42 (5)
OF THE CONSTITUTION

AND IN THE MATTER OF THE APPLICATION
OF LOU BEI AN
Applicant

AND:

DOMINIC AMPAO’I
DIRECTOR OF ENFORCEMENT & COMPLIANCE
PNG IMMIGRATION AND CITIZENSHIP SERVICE
First Respondent

AND:

DAVID TIBU
SECRETARY FOR LABOUR & EMPLOYMENT
Second Respondent

AND:

NATIONAL FISHERIES AUTHORITY
Third Respondent

AND:

CHIEF SUPERINTENDENT JOSEPH POMA
PROVINCIAL POLICE COMMANDER
MILNE BAY PROVINCE
Fourth Respondent

Waigani: Sevua, J
2009: 6, 10, 19 & 27 March, 30 June
2010: 21 January

CONSTITUTIONAL LAW – Application for enforcement of constitutional rights - Section 42 (5) Constitution – Allegations of unlawful and unconstitutional detention – Applicant arrested, charged and detained for several offences including an attempt to export goods to Singapore illegally – Offences charged under Fisheries Management Act and Customs Act – Detained and released on bail – Re-arrested over additional charges and subsequently released on bail – Whether his detention was unlawful and unconstitutional.

CONSTITUTIONAL LAW – Application for enforcement of constitutional rights - Allegation of unlawful and unconstitutional detention – Applicant detained under Immigration Detention Order – Whether such detention unlawful and unconstitutional.

Held: -	1.	The applicant was arrested, charged and detained in respect of several charges laid under the Fisheries Management Act and the Customs Act. His detention in respect of those charges was lawful and constitutional.

2.	The applicant’s detention under an Immigration Detention Order, issued by the first respondent was lawful and constitutional.

3.	Where a non-citizen who is issued with a work permit and
a corresponding entry permit relating to that work permit is terminated from his employment and his work permit cancelled, his entry visa is automatically cancelled and becomes invalid. His right to remain in the country is expired and therefore he becomes a persona non gratia, liable to prosecution or deportation or both.

4.	The applicant’s application for a release with or without
conditions is declined.

Case cited in Judgment: 
Jamil Muhammed Abdullah v. Dr. Iqbal Yaseen & Ors, N2195, 17 August, 2001

Legislation Cited:
Constitution, 42 (i)(g);(5) (a) and (b); 195 (i)(a)
Employment of Non-Citizens Act, s.10
Migration Act, s.2; 3A; 5; 6 (1); 7 (1) (a); 10 (2) (c); 12 
Fisheries Management Act, s.31; 46 (1) (a) (b)
Fisheries Management Regulations, s.4; 15 (1); 16; 31
Bechedemer Management Plan, s.7 (a) (i) (c)
Customs Act, s.126; 149 (1)(a)

Counsel:
J. Kusip, for Applicant.
F. Kuelinad, for First & Second Respondents
T. Elemi, for Third Respondent.
No Appearance for Fourth Respondent

21 January, 2010

1. SEVUA, J: The applicant has applied for the following principal relief –

1.	An Order that pursuant to Section 42 (5) Constitution, he be brought before the Court to inquire into his unlawful and unconstitutional detention.

2.	An Order that pursuant to Section 42 (5) Constitution, he be released forthwith from custody unconditionally or subject to such conditions as the Court thinks fit.

2. The application was filed on 25 February 2009 and first came before this Court on 6 March 2009, ex parte. It was adjourned to 10 March and the Court issued several orders including an order that the applicant be transferred from Alotau to Port Moresby.

3. At the outset, it is necessary to outline the facts in this application to explain why and how the respondents were ordered to appear in Court to respond to the applicant’s allegations.

4. This application first came before me ex parte at Waigani on 6 March 2009 and was adjourned to 10 March following the issuing of several orders. When the matter returned on 10 March, the Court noted from the documents already filed by the applicant that he had made serious allegations against certain people in certain Government institutions. 

5. Those allegations were either made against, or implicated Police in Alotau, especially the Provincial Police Commander (PPC), Chief Superintendent Joe Poma; The Secretary for Labour and Industrial Relations; National Fisheries Authority, Customs, and Mr Dominic Ampa’oi, Director Enforcement and Compliance PNG Immigration and Citizenship Service, Department of Foreign Affairs, Trade and Immigration.

6. On that basis, and since the Court was of the view that they had an interest in this case, it was necessary for their appearance so that they can be heard in this application. Accordingly, they were ordered to appear on 19 March 2009 when the matter next would return to this Court.

7. Thus on 19 March 2009, Mr. Hodges Ette appeared for the PPC of Milne Bay; Mr. Copeland Raurela appeared for National Fisheries Authority, Mr. Dominic Ampa’oi appeared in person, and Dr Rona Nadile appeared on behalf of the Secretary for Labour and Industrial Relations.

8. The evidence in this case establishes that the applicant was initially employed by Lagimu Rua Holdings Limited, a local company based in Alotau, Milne Bay Province. The Department of Labour and Industrial Relations issued Work Permit No 08060030 to the applicant on 7 June 2005, which was valid till 30 June 2008.

9. An application by the company to renew the applicant’s work permit in June 2008 was refused by the Secretary for Labour and Industrial Relations who has the power to refuse an application. The refusal was based on serious complaints and or allegations against the applicant by various State institutions including, Milne Bay Provincial Government and Administration, National Fisheries Authority, Police, Immigration, National Intelligence Organization, various legal firms and a number of private citizens in Milne Bay Province.

10. That refusal led to court proceedings instituted by the applicant. For reasons not relevant to this case, the application for renewal was granted on 23 June 2008 and the applicant was issued with Work Permit No 11060057 valid till 30 June 2011. Against that work permit, Work Entry Permit (Entry Permit) No 99902045944 was issued and was valid till 30 June 2011. 

12. There is no evidence before the Court of the original work permit with the original entry permit which were said to be valid till 30 June 2008.

13. On 10 December 2008, the Secretary for Labour wrote to the applicant asking him to show cause why his work permit should not be cancelled.

14. In the meantime, on 8 December 2008, Lagimu Rua Holdings Limited terminated the applicant’s employment and advised the Secretary accordingly.

15. On 16 January 2009, the Secretary advised the applicant in writing that his work permit had been cancelled because of the complaints against him and also because his employment with Lagimu Rua Holdings Limited had been terminated. The Secretary advised the company to repatriate the applicant to his country, Singapore. At, or around the same time, a copy of the written termination of the applicant’s work permit was delivered to Mr. Joseph Nobetau, Acting Chief Migration Officer, PNG Immigration and Citizenship Service.

16. According to the applicant, his arrest and the subsequent charges laid by police in Alotau were in connection with his employment with another company, Bomatu Holdings Limited, also based in Alotau. He said he was employed as a consultant although he was not a shareholder or director of that company.

17. Apparently, from the applicant’s evidence, Bomatu Holdings Limited was the new name for Lagimu Rua Holdings Limited. The change of name was approved by the Registrar of Companies on 23 October 2008. However, it is quite interesting to note that the sole shareholder/director of Lagimu Rua Holdings Limited, Mrs. Veronica Tolo’ube, did not know anything about that change and did not authorise the applicant to effect the company name change.

18. As she puts it in her letter dated 8 December 2008 to the National Fisheries Authorities and copied to the Secretary for Labour and others:

"To conclude, Mr. Lou is currently an illegal alien carrying on illegal business using a national company as FRONT without the consent of the company owners." 

19. That letter is Annexure "D" to the affidavit of Dr Rona Nadile sworn on 23 March 2009 and filed on 24 March 2009.

20. If the new company was to have new shareholders and directors, Mrs. Tolo’ube did not consent or authorize that. From the same evidence, the new shareholders and directors are Emmanuel Lufoava and Wellington Eric. It is to be noted also that Emmanuel Lofoava is the complainant in this matter. But there is no evidence of any formal transfer of shares from Mrs. Veronica Tolo’ube to Emmanuel Lofoava and Wellingtom Eric, both of whom seem to feature prominently in this whole saga. There is no evidence either that they had consented to be directors.

21. As I have already adverted to, Mrs Tolo’ube had no knowledge of the changes in the name and status of the company therefore one could conclude that there had been fraudulent dealings in relation to the change of name and shareholding and directorship of Lagimu Rua Holdings Limited, which the applicant has failed to disclose. In my view, this is a case which requires investigation by the Investment Promotion Authority and the Court recommends that the Director of Investment Promotion Authority conducts an investigation into the conduct of the applicant and Messrs Emmanuel Lufoava and Wellington Eric in relation to Lagimu Rua Holdings Limited and Bomatu Holdings Limited.

22. At this juncture it needs to be said that in relation to the change of employment by the applicant, there is no evidence that a new work permit was issued to the applicant in respect of his employment with Bomatu Holdings Limited. There is also no evidence that a new work entry permit or visa was issued in relation to that new employment. 

23. The applicant’s original work permit and subsequent renewal were in respect of his employment with Lagimu Rua Holdings Limited. There is no evidence at all, either from the Department of Labour and Industrial Relations, or the applicant himself as to the validity or legality of his employment with Bomatu Holdings Limited. That in itself raises the important legal question whether the applicant was lawfully in the country, in the light of his termination (employment) by Lagimu Rua Holdings Limited.

24. As far as the Immigration Office of the Department of Foreign Affairs Trade & Immigration was concerned, the applicant was illegally engaging in an employment which he had not been issued with a work permit and a corresponding work entry permit or visa.

25. According to Mr. Dominic Ampa’oi, the Director of Enforcement and Compliance, he had the power under Section 10 (2) of the Migration Act to arrest and detain the applicant in custody pending prosecution under this Act.
He says he is an "authorized officer" pursuant to s. 2 of the Act. Although there is no evidence of that authorization. The applicant has not disputed that therefore, I accept that he is an officer responsible for enforcing certain provisions of that Act. He has sworn that he is an authorized officer.

26. Mr. Ampa’oi’s authority is evidenced by his letter of 13 February 2009 to the Provincial Police Commander in Alotau to arrest the applicant and place him in custody until he is prosecuted or removed from the country. He signed that letter as Director, Enforcement & Compliance. I cite parts of that letter.

"The Papua New Guinea Immigration and Citizenship Service (PNGICS) has received from the Department of Labour and Industrial Relations (DLIR) cancellation notice of Employment Permit No. 11060057 for Mr. LOU Bei An with Lagimu Rua Holdings Limited.

As a consequence of this decision by DLIR and the many serious allegations leveled against this foreigner, DLIR has referred the matter to this office requesting Mr. LOU Bei An’s removal from the country.

The position of this office in relation to Mr. LOU Bei An’s case has always been that he should be taken through the court process and removed from the country if found guilty.

This view remains unchanged; however, with the cancellation of his work permit by DLIR Mr. LOU Bei An does not have any legitimate right to remain in the country as his visa also ceased to become valid as a consequence of this action by DLIR.

Given his illegal status therefore you are hereby requested to have Mr. LOU Bei An placed under Immigration Detention at Alotau Police Cells, as provided for under Sect. 10 (2) (c) of the Migration Act 1978, pending his prosecution and/or his removal from the country."

27. Mr. Ampa’oi further said in his affidavit sworn on 17 March 2009 and filed on 18 March 2009 that on the basis of what has been alluded to above he acted within his powers as the Director, Enforcement and Compliance to issue the Immigration Detention Order under his name and signature dated 13 February 2009. He continued at paragraph 12 –

"By virtue of the cancellation of Mr. LOU Bei An’s work permit by DLIR, his Entry Permit/Visa issued by PNGICS consequently ceases automatically to be of any legal effect therefore his continued presence would be deemed illegal."

28. I also refer to paragraphs 13, 14 and 15 of the Director’s affidavit.

"13. It is the view of the PNGICS in this case for Mr. LOU Bei An to be dealt with administratively by repatriation back to his country of origin now without either a work permit or entry permit to remain legally in the country.

14. Detention in this instance is an administrative measure consistent with the cancellation of his work permit and legal cessation of his entry permit/visa and consequently his illegal status in the country.

15. The Deportation Order is within the powers of the Minister whom Instruments for his signature were being prepared although Mr. LOU Bei An has no legal standing in the country and therefore would not technically require forceful removal from the country but voluntarily exit as per his employment condition."

29. In order to understand certain matters deposed to in the affidavit of Dominic Ampa’oi, the Court, of its own volition, called him to take an oath and explain various matters on 27 March 2009. In that sense, he became a witness called by the Court.

30. From questions asked by the Court, this is his evidence. He is currently the Director, Enforcement & Compliance in the Immigration and Citizenship Service of the Department of Foreign Affairs Trade & Immigration. The legal document enabling a non citizen to enter the country is a Visa or Entry Permit. In relation to paragraphs 2 and 3 of his affidavit, Work Entry Permit No 9990 2045944 is the visa that authorized the applicant to enter Papua New Guinea. That visa was issued in accordance with the applicant’s work permit.

31. When asked what happens when the Department of Labour cancels a non-citizen’s work permit, the witness said that the Immigration Office then treats the visa issued to the employee as invalid because it was issued on account of his employment work permit that has been cancelled. In respect of the applicant’s Work Permit No 11060052 cancelled by the Department of Labour on 22 December 2008 the status of the applicant then was that his entry permit was deemed cancelled as a result of the cancellation of his work permit therefore the consequence of that is that he remains in the country illegally because he has no valid entry permit.

32. PNGICS with the assistance of Milne Bay Provincial Administration has secured an airline ticket to Singapore for the applicant however, the Immigration authorities are waiting for the determination of this application. PNGICS maintains that the removal of the applicant is the responsibility of his former employer based on contractual obligations. Unfortunately, the applicant had informed Mr. Nimrod Mark, Director, Governance, Milne Bay Provincial Administration that he was unable to secure a ticket to return to Singapore. 

33. The circumstances surrounding the arrest and detention of the applicant are as follows.

34. On 3 January 2009, a complaint was lodged with Police in Alotau by one Emmanuel Lafoava, a Director of Bomatu Holdings Limited against the applicant. The complaint was related to the alleged unlawful purchase of, and attempted export of bechedemer, shark fins, shark meat and bones, purchased during the prohibition period. The marine products were stored in a 20 ft container with timber fletches. The container which was consigned as sawn timber was to have been exported from Alotau via the vessel, Pacific Navigator on 5 January 2009 to Extec Enterprises Limited in Singapore.

35. As a result of the complaint, Chief Superintendent Joseph Poma together with Customs, Forestry and Fisheries Officers armed with a Search Warrant went to the PNG Ports premises in Alotau and searched the container marked FSCU 3361897 in the presence of the applicant and PNG Ports officials on 6 January 2009. 

36. When the container was opened, it was discovered that the front part contained sawn timbers which were stacked right up to the roof of the container, however when the timbers were removed, it was discovered that the rear part of the container contained undeclared marine products such as bechedemer, shark fins, shark meat, shark bones, shark jaws and shark skins.

37. The marine products were taken to Alotau Police Station on the same day and unpacked by Fisheries officials; sorted out, weighed, and re-packed into a 9ft container in the presence of the applicant. Soon after that the applicant was served with a Seizure Notice pursuant to Section 126 of the Customs Act, by Customs officials who fully explained the notice to the applicant and consequently confiscated the goods and declared them State property.

38. The applicant was arrested on 24 January 2009 by Chief Superintendent Poma charged with offences contrary to Sections 15 (1) and 16 of Fisheries Management Regulations 2000 and s. 7 (a) (i) (c) of Bechedemer Management Plan 2003 and refused bail. He was also charged with an offence under s. 149 (1) (a) of the Customs Act. Again bail was refused by Police. However, the District Court constituted by Mr. Steven Abisai granted bail with several conditions on the same day.

39. From the evidence of Supt. Poma, prior to the applicant being charged with the offences relating to the marine products in the confiscated container, he had been charged in September 2008 over conspiracy to murder the Governor of Milne Bay, Hon John Luke Crittin, MP and his Deputy, Hon Gordon Wesley, MP and released on a K10, 000.00 bail. However there is no bail certificate in respect of those charges. Whilst on bail in relation to those matters, he was arrested for offences under the Fisheries and Customs legislations and subsequently granted bail on 24 January 2009. 

40. There appears to be some confusion over the dates of grant of bail by the District Court. In paragraph 14 of Poma’s affidavit sworn on 22 March 2009, he referred to an appearance by the applicant in the District Court on 21 January 2009 and the grant of bail of K500.00 with a condition not to interfere with State witnesses. I have already alluded to the applicant’s bail granted on 24 January 2009. However, on 24 January 2009, Supt Poma again arrested the applicant for interfering with principal State witness Clayton Lufoava on 23 January 2009.
The applicant was refused bail and detained in the police cell.

41. On Sunday, 25 January 2009 duty policemen went to Supt Poma’s residence with bail documents signed by Senior Principal Magistrate, Mr. Steven Abisai granting the applicant an O/R bail. Supt Poma said he understood Mr. Abisai was on long leave then and would resume duty in June 2009, but in this case he entertained a bail application by the applicant without giving the police an opportunity to appear as required by the Bail Act. The police did not know where the bail application was heard.

42. Of concern to this Court is what I am about to refer to, which in my view, needs to be referred to the Chief Magistrate, the Ombudsman Commission and Police, as it appears that question of improper conduct has been raised against Magistrate Abisai, and there is a possibility that he had perverted the course of justice in this case. The evidence continues.

43. On 25 January 2009, Senior Constable Yutiko and Constable John Enroy went to execute a warrant of commitment issued by Magistrate (Mrs) Kapigeno against one Nasa Terry who worked with the applicant and resided with him at Goilanai. However as the policemen were about to execute the warrant, Nasa Terry used his mobile phone and rang and spoke to a person, he then handed the cell phone to S/C Yutiko who was surprised to talk to the Senior Provincial Magistrate, Mr. Abisai who directed S/C Yutiko not to execute the warrant as the matter would be sorted out on Monday. S/C Yutiko then reported this incident to Supt Poma who said he was "lost for words and very astonished to learn (sic) that a defendant can simply pick up a phone at anytime and get the Senior Provincial Magistrate to stop a policeman execute his lawful duty." This is a blatant abuse of power and a blatant violation of the constitutional duty of the Police Force. It amounts to perverting the course of justice as far as the Court is concerned.

44. On Monday 26 January 2009, the police waited at the Courthouse for Mr. Abisai but he did not turn up. Police then approached another District Court Magistrate Mrs. Kapigeno who was the presiding magistrate in this matter and who had previously issued the warrant of commitment. Magistrate Kapigeno then directed police to go and execute the warrant, however by the time police went to Nasa Terry’s place of residence, he had already left for his village.

45. On 27 January 2009, Supt Poma received a letter from the Department of Labour & Industrial Relations confirming the revocation of the applicant’s Work Permit No. 11060052. It is not sure if that letter was a copy or the original as Supt Poma said the letter was addressed to the Manager of Lagimu Rua Holdings Limited. The letter was served on the applicant on 28 January 2009, but the cancellation of the work permit was made on 22 December 2008.

46. On 10 February 2009 the applicant was again arrested at Gurney Airport, Alotau as he was going to travel to Port Moresby. He was taken back to Alotau where he was charged and arrested and refused bail. Nevertheless, he was granted bail by the District Court despite objections by police. It should be noted here that one of the bail conditions imposed on 24 January 2009 was that the applicant must not leave Alotau without leave of the District Court. But here he was, trying to leave Alotau in violation of that bail condition.

47. On 15 February 2009, police sighted the applicant in Dr Yaubihi’s private vehicle and followed them to Gurney Airport. At the airport police served on the applicant the Immigration Detention Order and invited him to Alotau Police Station, which he obliged willingly. The applicant was handed over to duty policemen who detained him in accordance with the Immigration Detention Order for immigration purposes.

48. The applicant remained in immigration detention under police custody until the National Court ordered his transfer to Port Moresby to be placed under the custody of the Trans-National Crime Unit. Pursuant to the Order of this Court issued on 10 March 2009, the applicant was escorted to Port Moresby by a Trans-National Crime Unit Officer on 15 March 2009.

49. Supt Poma stated that between the applicant’s detention in accordance with the Immigration Order on 15 February 2009 till his transfer to Port Moresby on 15 March 2009, the applicant was not granted bail by police. The immigration Detention Order was not brought before the District Court in Alotau therefore bail was not granted to the applicant in respect of that detention. It was a matter for the Immigration Office and not the police.

50. The applicant then appeared before this Court with his counsel on 19 and 27 March 2009 when the Court heard submissions by the parties and reserved judgment to a date to be advised. This Court must apologise unreservingly for the delay in delivery of judgment in this matter owing to my medical conditions.

51. The applicant alleges that his detention is unlawful and unconstitutional. He therefore seeks an order pursuant to s.42 (5) Constitution to inquire into this alleged illegality and unconstitutionality.

Section 42 (5) provides –

5. Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained –

(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b) Unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconstitutionally or subject to such conditions as the Court or Judge thinks fit.

52. I consider that the duty placed upon the Court by s.42 (5) (a) has been complied with when this Court ordered the applicant to be removed from Alotau to Port Moresby to appear before it, so that the Court could inquire into his complaint. Secondly, the evidence provided in this case with the hearing of submissions and this decision are all part of the inquiry pursuant to s.42 (5) (b).

53. In my view the issue in this application is whether the detention of the applicant was lawful and constitutional.

54. At this juncture, it should be pointed out that the applicant has not been specific in this allegation. He was arrested several times on several charges at different dates therefore he should have been more specific on which occasion of his arrest and detention he says, is unlawful and unconstitutional.

55. Or does he say that his detention under order by the first respondent is unlawful and unconstitutional? The Court is therefore uncertain as to which particular date of detention the applicant is complaining about. But it will address the arrests and detention relating to the criminal charges as well as the detention pertaining to the Immigration Detention Order.

56. At this juncture, let me say that, where a non-citizen who enters the country on account of an employment, and later wishes to change that employment, he should proceed under s.3A Migration Act, although that provision is not mandatory.

Section 3A Changes of employment or status -

1. The holder of an entry permit who –

(b) being the holder of an entry permit allowing employment with a named employer –

(ii) is affected by a legal change of name of the employer,

wishes the entry permit changed in respect of the name of the employer,

may apply for a change of status of the entry permit or change of name of the employer in the entry permit, as the case may be.

57. There is undisputed evidence that the applicant had been terminated by Lagimu Rua Holdings Limited which led to the cancellation of his work permit. But there is also evidence that he was employed by Bomatu Holdings Limited, which appeared to be the same company with a new name. Even then, the applicant should have proceeded under s.3A of the Migration Act.

58. In failing to apply for a new entry permit due to the change in his employer, he breached the provisions of the Employment of Non-Citizens Act 2007.

59. In particular, Section 10 which states: -

10. WORK PERMIT LIMITED TO SPECIFIED OCCUPATION, ETC

(1) A work permit allows –

(a) a specified employer to employ a specified non-citizen in a specified occupation;

(b) …….

(2) A work permit is not transferable in respect of the employer or the non-citizen, or the occupation.

60. The applicant’s work entry permit was issued on account of his employment with Lagimu Rua Holdings Limited NOT his employment with Bomatu Holdings Limited (my emphasis).

61. When the company changed its name, although that is being disputed by the sole shareholder/director, the applicant should have applied for a fresh work permit and also a new work entry permit.

62. However instead of complying with the law, he was using a license belonging to a company which no longer exist to do business with, and that was one reason he was arrested and detained.

63. Neither the applicant nor his witnesses and lawyer were able to provide copies of Bail Certificates issued to the applicant in this case. Therefore the Court, on its own volition, had to obtain these documents from the Clerk of Court at Alotau District Court to assist in considering and determining this application.

64. From these Bail Certificates, the Court is able to ascertain the charges against the applicant resulting in his arrests. The Court will need to refer to these Bail Certificates for purpose of clarity.

65. On 9 January 2009, the applicant was granted bail by Magistrate Kapigeno (Mrs.) in the sum of K2,000.00. Other orders were that the applicant was to report to the Alotau District Court every Monday of each month, not to interfere with State witnesses, not to leave Alotau or country without the permission of the Court, and to surrender his passport to the Court on his release from custody.

66. The charge leading to his arrest and detention was that he was "illegally buying and storing bechedemer contrary to s.31 of the Fisheries Management Act 1988."

67. On 20 January 2009 the applicant was again granted bail by the same Magistrate after being arrested and charged with an offence contrary to s.31 Fisheries Management Regulation 2000, Section 4 PNG Standards for Fish and Fish Products Resource No. 1 of 2006. This charge relates to the applicant’s attempt to export a container containing shark fins, bones, carcass and jaws via MV Pacific Navigator without legal clearance.

68. The conditions of bail were, K500.00 cash, reporting to Alotau District Court each Monday of each month, not to interfere with State witnesses, not to leave Alotau or country without leave of the Court, and to release his passport to the District Court upon release from custody.

69. On 24 January 2001, the applicant was granted bail again by the Senior Provincial Magistrate, Mr. Abisai, on a charge that the applicant was using a license under the name Lagimu Rua Holdings Ltd, which is not transferable contrary to Sections 15 (1) and 16 of Fisheries Management Regulation 2000 and s.7 (a)(i)(c) of Bechedemer Management Plan 2003, and also for smuggling fish products with intention to defraud the revenue contrary to s.149 (1)(a) of the Customs Act.

70. The conditions of bail were, not to interfere with State witnesses, report to Alotau District Court every fortnight Monday, to reside at his usual residence address at Eliata, Goilanai, Alotau, must not leave Alotau without leave of the District Court, not to commit any criminal offence, must fully cooperate with police in their investigation of this matter and to appear in the Alotau District Court on each return date of the proceedings until his case is determined.

71. On 13 February 2009, the applicant was granted another bail by Magistrate Kapigeno after being charged with engaging in buying and trading of bechedemer without a valid fisheries license contrary to s.46 (1)(a) and (b) of Fisheries Management Act. He was granted bail in the sum of K500.00 cash and previous bail conditions were to apply.

72. As I have alluded to earlier, on 15 February 2009, police observed the applicant in Dr. Yaubihi’s vehicle en route to Gurney Airport and pursued the vehicle to the airport. At the airport police served the applicant with the Immigration Detention Order issued by the first respondent. The applicant was invited to the Alotau Police Station where he was arrested and detained in accordance with that order.

73. From that date till 15 March 2009 when he was transferred to Port Moresby by Order of this Court, the applicant had remained in custody and did not seek bail in the Alotau District Court.

74. From the evidence of Supt. Poma, I am entitled to conclude that the applicant was arrested on 24 January 2009 and granted bail on the same day. Furthermore, he was arrested on 10 February 2009 and granted bail on 13 February 2009. I am unable to find any other dates of arrest corresponding to the grant of bail on 9 January and 20 January 2009. But I am entitled to conclude that he was arrested and detained before being granted bail on those dates.

75. From the evidence and the Bail Certificates, it is clear that the applicant has been arrested and charged with a number of criminal offences relating to his activities which seemed illegal, to say the least.

76. The Police Force has a constitutional obligation to preserve peace and good order in the country by virtue of s.195 (1) (a) Constitution. The Force has the power to investigate, charge and arrest a person suspected of, or alleged to have committed a criminal offence. It is part of the overall function of the Force to lay, prosecute or withdraw charges against a person or persons. It is therefore within the power of the police in this case to arrest and charge the applicant with criminal offences under the Fisheries Management Act and Regulation and the Customs Act.

77. The applicant was not arrested and charged for no apparent reasons. He was going to export a container containing shark products, but which products were not declared and cleared by National Fisheries Authority and Customs. He falsified the documents relating to that export by stating that the contents were timber fletches when there were undeclared shark fins, bones, jaws etc in it as well. He was alleged to have had no valid license to export these marine products.

78. I consider that these are valid reasons for the police to charge and arrest him. These charges are serious. For a foreigner to be caught in this kind of illegal activities is a very serious matter, in my view. A foreigner is a guest in this country and he has both legal and constitutional obligations to abide by the laws of the country. If he does not then he should be deported. We cannot allow foreigners who flout the laws of this country to remain in the country.

79. The applicant was entitled to bail and his rights to bail were accorded to him at the time he was arrested and detained in relation to charges brought under the Fisheries Management Act and Regulation and Customs Act.

80. I do not see how the applicant could complain that his detention arising from those charges were unlawful and unconstitutional. Like I said, he has not specified which detention he said was unlawful and unconstitutional. I find that the applicant’s arrest and subsequent detention over the charges contrary to provisions of the Fisheries Management Act and Regulation, Customs Act and other similar legislations were lawful and constitutional.

81. In respect of the detention under the Immigration Detention Order, that is a distinct and separate issue and will be discussed separately here.

82. As we have discussed earlier, the applicant’s work permit no. 11060057 had been cancelled on 22 December 2008. From the evidence of the first respondent, a visa or entry permit no. 9990 2045944 was issued to the applicant in conjunction with his work permit. There is undisputed evidence before me that when the Department of Labour cancelled a non-citizen’s work permit, the Immigration office would treat his visa invalid because it was issued on account of that work permit.

83. Therefore in the present case, when the Department of Labour cancelled the applicant’s work permit no. 11060057 on 22 December 2008, the applicant’s entry visa became invalid. It makes sense to me because without the work permit, the applicant could not be issued with an entry visa. It follows therefore that when his work permit was cancelled; his visa had to be cancelled as well, and when that happens the applicant becomes a persona non gratia liable to deportation by the State, through the Minister for Foreign Affairs, Trade and Immigration.

84. The State through its various agencies is charged with protecting the sovereignty of the nation. Through the Immigration Office in the Department of Foreign Affairs and Trade, there are officers charged with the issue of entry permit to foreigners or non-citizens who seek to enter the country. Under the Migration Act 1978; the Minister and his officers have some degree of control over non-citizens and they have statutory powers to exercise in relation to non-citizens.

85. For instance the Minister has powers to cancel an entry permit under s.6 (1) of the Act and pursuant to his powers under s.12 he has authority to order the removal of a non-citizen whose presence in the country is unlawful. Such removal order is commonly known as a deportation.

86. Under s.7 (1) the presence of a non-citizen in the country is unlawful if he is not a holder of an entry permit. I take that to also mean that the non-citizen’s entry permit has expired so that he no longer holds a valid entry permit.

87. Section 10 of the Act deals with prevention of unlawful presence and empowers an officer to do certain things which include arresting a person who enters or remains in the country in contravention of the Act and detaining him in custody pending his prosecution. The word, "officer" is defined in s.2 of the Act. Section 10 (2) (c), provides: -

10. PREVENTION OF UNLAWFUL PRESENCE

(1) ……

(2) Where a person has entered or remained in the country in contravention of this Act, an officer shall –

(a) ……

(b) ……

(c) arrest that person and keep him in custody pending his prosecution under this Act.

88. I am satisfied from the unrefuted evidence before me that the first respondent, Dominic Ampao’i, is an officer within the meaning of that Act. He is the Director of Compliance and Enforcement in the Migration and Citizenship Services. I find that he acted within his legal powers.

89. The arrest and detention of the applicant on 15 February 2009 was in accordance with an order or directive from the first respondent. In his affidavit sworn on 17 March 2009, he described it as the "Immigration Detention Order", which he issued under his hand and signature on 13 February 2009 following the cancellation of the applicant’s work permit.

90. I have referred to that letter earlier in this judgment, but I wish to quote part of that letter which I have already cited, to emphasize the position that since the applicant’s work permit had been cancelled, his entry permit also became invalid and he no longer had the right to remain in the country.

91. Part of that letter reads –

"This view remains unchanged; however, with the cancellation of his work permit by DLIR, Mr. LOU Bei An does not have any legitimate right to remain in the country as his Visa also ceased to become valid as a consequence of this action by DLIR."

92. That letter also requested Alotau Police to have the applicant placed under Immigration Detention at the Police Station pursuant to s.10 (2) (c) of the Migration Act until he is prosecuted or removed from the country.

93. From the evidence of Supt. Poma, it was on the basis of this letter that police followed the applicant to Gurney Airport on 15 February 2009 and served him with the letter and requested him to accompany police to the Police Station, where he was subsequently detained in accordance with s.10 (2) (c). I accept that evidence and I am satisfied that that was the basis of the applicant’s detention on that date.

94. Was the applicant’s detention under the Immigration Detention Order unlawful and unconstitutional?

95. Let me deal first with the issue of unlawfulness. Section 5 of the Migration Act provides that -

An Officer or authorized person may -

(a) issue an entry permit subject to conditions; and

(b) during the currency of an entry permit –

(i) make it subject to conditions; and

(ii) vary or cancel conditions to which it is subject.

96. That provision regulates the issuing of entry permit with conditions. However, the conditions for the issue of the entry permit are not specifically stated in that provision. Nevertheless, in my view, it is a matter of common sense really and logic where a non-citizen enters the country on account of an employment, he is issued with a work permit for that employment and also issued with a work entry permit on account of that employment. It makes sense to say, that, when that work permit is cancelled, the non-citizen has no more right to continue to reside in the country, and it is only proper that his entry permit be cancelled and he be repatriated or removed out of the country. I consider that to be the legal position in this case.

97. When that happens, the non-citizen, or in this case, the applicant, is no longer the holder of a valid entry permit. He cannot remain in the country lawfully. His presence in the country after that happens, is unlawful and he becomes a persona non gratia.

98. Section 7 of the Migration Act which deals with unlawful presence in the country provides -

(1) Subject to Subsection (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;

Subsection (2) is not relevant therefore it is not necessary to quote.

99. It is my opinion therefore that the applicant was unlawfully in the country from the date his work permit was cancelled on 22 December 2008, and consequently his entry permit became invalid.

100. The first respondent was therefore authorized by s.10 (2) (c) to arrest the applicant and hold him in custody pending his prosecution. That was what occurred on 15 February 2009.

101. I find that the first respondent acted lawfully in causing the arrest and detention of the applicant. I find that the first respondent had the power to do what he did. After all he has the duty to protect the country from undesirable foreigners.

102. Going to the issue of the constitutionality or unlawfulness of the detention ordered by the first respondent, I refer to s.42 (1) (g) Constitution –

(1) No person shall be deprived of his personal liberty except –

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes (my emphasis).

103. The first respondent has provided the reason for issuing the Immigration Detention Order. I have found as a matter of law that he had the legal power to authorise the applicant’s detention, and accordingly, I have found that he acted lawfully.

104. It is my view that the Constitution permits the deprivation of a non-citizen’s liberty pursuant to s.42 (1) (g). Therefore I find that the detention of the applicant by Alotau Police in accordance with the Immigration Detention Order issued by the first respondent was constitutional and lawful. Such detention was not unlawful and unconstitutional. As the applicant’s work permit had been cancelled and his entry visa deemed invalid, he is an illegal immigrant subject to prosecution or deportation or both. His right to remain in the country had expired when his entry visa expired.

105. For these reasons, it is the judgment of the Court that the detention of the applicant in Alotau at different times in January and February 2009 was lawful and constitutional.

106. The first respondent is at liberty to prosecute the applicant, if not the Minister is at liberty to issue a removal order. However, the Court is unable to order a deportation since that is an executive act and the Court has no power to order deportation under the Migration Act. See: - Jamil Muhammed Abdullah v. Dr. Iqbal Yaseen & Ors, N.2195, 17 August, 2001.

107. In view of the judgment of the Court, the applicant’s application for a release with or without conditions is declined. The applicant is ordered to pay the respondents’ costs, to be taxed, if not agreed.

__________________________________________________________

Patterson Lawyers: Lawyer for the Applicant
Solicitor-General: Lawyer for the First & Second Respondents 
Elemi Lawyers: Lawyer for Third Respondent
Hodges Ette: Lawyer for Fourth Respondent