N6200

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 197 OF 2015

TAMMY TOMSCOLL
Plaintiff

V

RABURA MATAIO, CHIEF MIGRATION OFFICER
First Defendant

THE HONOURABLE RIMBINK PATO MP,
MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2015: 3, 10 November,
2016: 26 February

CITIZENSHIP – automatic citizenship – dual citizenship – circumstances in which a PNG citizen loses citizenship – Constitution, Part IV, citizenship

HUMAN RIGHTS – right of protection against harsh, oppressive or other proscribed acts – whether available to a non-citizen – Constitution, Section 41. 

Facts

The plaintiff sought a declaration that she is a Papua New Guinea citizen and related declarations and an injunction to restrain the defendants, in particular the Chief Migration Officer (the Chief Executive Officer of the PNG Immigration and Citizenship Service Authority) and the Minister for Foreign Affairs and Immigration, from deporting her. The issue of the plaintiff's citizenship came to a head soon after she was released from prison. The Authority gave her a written direction to leave the country on the ground that she was unlawfully in the country, as she was a non-citizen without an entry permit. Three issues arose: (1) is the plaintiff a PNG citizen? (2) if she is not a PNG citizen, should the defendants be restrained from deporting her? (3) what declarations and orders should the Court make?

Held:

(1)	The plaintiff was, from birth, an automatic citizen by virtue of Section 65(1) of the Constitution, as she was born in PNG before Independence Day (16 September 1975) and has two grandparents who were born in the country. She remained a PNG citizen, despite also having become a British citizen at the age of seven months and the general constitutional prohibition of dual citizenship, until she attained the age of 19 years. Upon reaching the age of 19 years, she, not having renounced her British citizenship, ceased to be a PNG citizen by virtue of Sections 64(2) and (3) of the Constitution. Nothing has happened since then to restore her PNG citizenship. She was, at the time that the Authority directed her to leave the country and at the time of trial, a British citizen.

(2)	Though she was unlawfully in the country, for the purposes of the Migration Act (as she was a non-citizen without an entry permit), the plaintiff was nevertheless entitled to the full protection of the law and protection against harsh or oppressive or other unlawful acts under Sections 37(1) and 41(1) of the Constitution. In the circumstances, it would be harsh and oppressive for the defendants to direct her to leave the country or order her removal from PNG, as: (a) she was for the first 19 years of her life a citizen, (b) she has lived most of her life in PNG, (c) she reasonably and genuinely regards PNG as home and herself as Papua New Guinean, (d) her mother is a citizen, (e) she is married to a citizen, (f) her biological children are citizens, (g) she has a close connection to her mother's culture and customs and is fluent in Tok Pisin and her mother's tok ples, (h) she has no home to go to or any support network in the country of her citizenship. The defendants should therefore be restrained from directing her to leave PNG or deporting her.

(3)	The Court: (a) declared that the plaintiff is not a PNG citizen, (b) declared that any purported deportation of the plaintiff by the Chief Migration Officer is unlawful; (c) ordered the Chief Migration Officer to withdraw the direction for the plaintiff to leave the country; (d) restrained the defendants from taking any further steps towards removing or deporting the plaintiff; (e) ordered the defendants to facilitate the making by the plaintiff of an application for PNG citizenship; (f) ordered the plaintiff to cooperate with the defendants and make an application for PNG citizenship; (g) ordered the defendants to ensure that the plaintiff's application for PNG citizenship is heard and determined as soon as practicable; (h) declared that, unless and until the plaintiff's application for PNG citizenship is determined, her presence in the country shall be deemed to be lawful; (i) ordered the plaintiff and the Chief Migration Officer to file and serve affidavits setting out the steps they have each taken to comply with the Court's declarations and orders; (j) set a date for a further hearing to check on compliance; and (k) ordered the parties to bear their own costs. 

Cases cited

The following cases are cited in the judgment:

Application by Tamara Player (2009) N3613
Joe Kape Meta v Constable Paul Kumono (2012) N4598
Kelly Koi v Constable Mathew Anseni (2014) N5580
Morobe Provincial Government v John Kameku (2012) SC1164
Roger Bai Nimbituo & 4 Others v The State (2015) N6156
Tamara Player Tomscoll v The State (2012) SC1208
The State v Tamara Player Tomscoll, CR No 196 of 2009, 02.09.10 unreported
The State v William Nanua Kapris & 13 others (2011) N4232

Counsel

P Ame, for the Plaintiff
B E Kua, for the First & Second Defendants

26th February, 2016 

1. CANNINGS J: The plaintiff, Tammy Tomscoll, also known as Tamara Eve Player, seeks a declaration that she is a citizen of Papua New Guinea and related declarations and an injunction to restrain the defendants from deporting her. The defendants are:

•	the Chief Migration Officer and Chief Executive Officer of the PNG Immigration and Citizenship Service Authority ("the Authority"), Mr Mataio Rabura, first defendant;

•	the Minister for Foreign Affairs & Immigration, the Honourable Rimbink Pato MP, second defendant; and 

•	the Independent State of Papua New Guinea, third defendant. 

2. The defendants say that the plaintiff is a British citizen and the holder of a British passport and that she is unlawfully in the country and that she can lawfully be deported or removed from the country.

3. The issue of the plaintiff's citizenship came to a head on 15 April 2015, soon after the plaintiff was released from prison after serving a sentence for receiving stolen property. The Authority gave the plaintiff a written direction to leave the country on the ground that under Section 7(1)(a) of the Migration Act she was unlawfully in the country, as she was a non-citizen without an entry permit. The direction stated, amongst other things:

You are directed to voluntarily leave Papua New Guinea as soon as possible upon receipt of this notice. Failure to comply will result in your immediate incarceration and subsequent removal from the country.

4. Two days after receiving that direction the plaintiff commenced the present proceedings and the National Court granted an interim injunction, restraining the defendants from deporting her until determination of these proceedings.

RELIEF SOUGHT 

5. The relief sought in the amended originating summons filed on 11 May 2015 is expressed as follows:

1 	A declaration pursuant to Section 65(1) of the Constitution that the plaintiff is and was an automatic citizen of Papua New Guinea since 1 May 1975.

1(a) 	A declaration that the plaintiff has not lost her Papua New Guinea citizenship by a voluntary act for the purposes of Section 70(1)(a) of the Constitution.

1(b)	A declaration that the plaintiff has not lost her Papua New Guinea citizenship under Section 70(1) of the Constitution therefore Section 64 of the Constitution as amended does not apply to the plaintiff. 

1(c) 	A further declaration that the exercise of the rights as a holder of a British passport for the purposes of Section 70(1) to (4) of the Constitution are circumstances fault of the plaintiff hence do not amount to circumstances to the loss of her PNG citizenship. [sic]

2	That any purported deportation by the first defendant, his officers, servants and agents of the plaintiff without an order of the second defendant pursuant to Section 12(1) of the Migration Act is illegal and unconstitutional and null and void. 

ISSUES

6. Three issues arise:

1.	Is the plaintiff a PNG citizen? 

2.	If she is not a PNG citizen, should the defendants nevertheless be restrained from deporting her?

3.	What declarations and orders should the Court make?

1 	IS THE PLAINTIFF A PAPUA NEW GUINEA CITIZEN?

Facts

7. It is necessary to make some findings of fact before determining this issue. 

8. On 1 May 1975 the plaintiff was born at Port Moresby General Hospital and named Tamara Eve Player. Her biological mother is Paula Josephine Naron, from Lopahan village, Manus Province, whose mother and father (the plaintiff's maternal grandparents) are also from Manus Province. The plaintiff's biological father is Ivor Jeffery Player, from England, United Kingdom, who was then a British citizen, working in PNG. Ms Naron and Mr Player had been married in Port Moresby on 28 December 1974.

9. In December 1975 the plaintiff was, at the age of seven months, granted British citizenship, following an application by Mr Player who considered that it would be good to have his daughter (then only seven months old) educated in the United Kingdom.

10. From 1975 to 1984 the plaintiff lived and went to school in PNG.

11. From 1985 to 1989 the plaintiff lived and went to school in the United Kingdom. She was educated at Farringtons Methodist School, as a boarding student, in County Kent.

12. From 1990 to 1994 the plaintiff lived, went to school and worked in Australia. She did grade 11 at Mansfield State School, Brisbane, in 1991 and grade 12 at Capalaba College, Brisbane, in 1992. She was employed in 1993 and 1994. The plaintiff's father, Mr Player, gained Australian citizenship in 1992.

13. In 1994 the plaintiff returned to live in PNG, with her mother, in Port Moresby. On 1 May 1994 the plaintiff had her 19th birthday. She did not renounce her British citizenship. Also in 1994 the marriage of her mother and father was dissolved.

14. In 1999 the plaintiff commenced a relationship with Mr Assik Tommy Tomscoll (who is presently the Member for Middle Ramu in the National Parliament). They were married in Port Moresby, under the Marriage Act, on 14 July 2004. They have two children, boys born in 2003 and 2005 respectively. 

15. On 5 October 2004 the plaintiff was granted, as a British citizen, an entry permit by the PNG Government to remain in PNG as a dependant of a citizen (her husband) until 15 April 2006.

16. In December 2004 the plaintiff and Mr Tomscoll separated. 

17. On 1 November 2005 the Port Moresby District Court granted custody of the two children of the marriage to the plaintiff and ordered Mr Tomscoll to pay her maintenance in respect of herself and the two children.

18. On 15 April 2006 the plaintiff's entry permit, issued 5 October 2004, expired and was not renewed. She has not, since 15 April 2006, applied for or been granted an entry permit to remain in PNG.

19. On 26 April 2006 the plaintiff was issued with a new British passport, in the name of Tamara Eve Player, which expires on 26 April 2016.

20. On 23 July 2008 the plaintiff was arrested, charged and detained in custody for her alleged involvement in the armed robbery of the Madang branch of Bank South Pacific that had occurred on 5 July 2008 (the circumstances of the robbery are explained in the National Court's decision on verdict, The State v William Nanua Kapris & 13 others (2011) N4232). 

21. The plaintiff was refused bail on 17 March 2009 (Application by Tamara Player (2009) N3613). 

22. During 2009 the plaintiff gave birth to another child, a girl. The plaintiff states, and this is not disputed by the defendants, that that was a result of being raped while in Police custody. She has raised the girl, now six years old, who lives with the plaintiff and the plaintiff's mother. 

23. In 2010 the plaintiff pleaded guilty and was convicted of two offences: (1) being an accessory after the fact to the crime of armed robbery, and (2) receiving stolen property (K127,000.00, the proceeds of the robbery). She was sentenced to two years imprisonment for count 1 and nine years imprisonment for count 2, to be served concurrently (The State v Tamara Player Tomscoll, CR No 196 of 2009, 02.09.10 unreported). 

24. In 2012 she unsuccessfully appealed to the Supreme Court against her conviction and sentence (Tamara Player Tomscoll v The State (2012) SC1208). She served her sentence at Bomana Correctional Institution, National Capital District. 

25. On 26 March 2015 she was released from custody, having been accorded a statutory remission of part of her sentence. She had spent six years, eight months, three days in prison.

26. On 10 April 2015 an officer of the Authority contacted the plaintiff by phone and asked her to attend the Authority's office in Waigani. She did so. She was informed that she was unlawfully in the country as she was a non-citizen and had no visa authorising her presence.

27. On 15 April 2015 she returned to the Authority for another meeting and was given a written direction to leave the country. She was provided with a one-way airline ticket to London, United Kingdom, departing on 21 April 2015.

28. On 17 April 2015 the plaintiff commenced the present proceedings and the National Court granted an interim injunction, restraining the defendants from deporting her until determination of the proceedings.

29. On 1 May 2015 the plaintiff turned 40 years old.

30. At the time of trial, in November-December 2015:

•	the plaintiff had never renounced her British citizenship;
•	she had never made the Declaration of Loyalty to the Independent State of Papua New Guinea, provided for by the Constitution; 
•	she had never applied for PNG citizenship;
•	she remained the wife of Mr Tomscoll as, though they have been separated for 11 years, their marriage had not been dissolved;
•	she knew none of her father's relatives in the United Kingdom; 
•	her father lived in Australia and she had a harmonious relationship with him;
•	she had custody of her six-year-old daughter;
•	she did not have actual custody of her two sons, aged 10 and 12 years;
•	she was close to her mother and lived with her in Port Moresby; 
•	she regarded herself as Papua New Guinean, as in evidence, she stated: "I firmly and truly believe that I am a true Papua New Guinean. It's my birth right.";
•	she fluently spoke English, Tok Pisin and the tok ples of her mother's area in Manus;
•	she had spent 30 of the 40 years of her life in PNG, five years in the UK and five years in Australia.

Law

31. The question of the plaintiff's citizenship must be determined under Part IV of the Constitution (citizenship), consisting of Sections 64 to 81. It is agreed that upon her birth, on 1 May 1975, she was an automatic citizen by virtue of Section 65(1) (automatic citizenship on Independence Day) of the Constitution, which states:

A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.

32. The plaintiff was born in PNG before Independence Day (16 September 1975) and has two grandparents (her mother's parents) who were born in PNG. Therefore she was a citizen.

33. The plaintiff remained a PNG citizen, despite also having become a British citizen at the age of seven months and the general constitutional prohibition against dual citizenship, until she attained the age of 19 years on 1 May 1994. That is due to the combined effect of Sections 64(1) and (2) of the Constitution, which, prior to their amendment by Constitutional Amendment (No 37) (Citizenship) Law 2014, (which commenced operation on 17 March 2014), stated:

(1)	Notwithstanding the succeeding provisions of this Part but subject to Subsection (2), no person who has a real foreign citizenship may be or become a citizen, and the provisions of this Part shall be read subject to that prohibition.

(2)	Subsection (1) does not apply to a person who has not yet reached the age of 19 years, provided that, before he reaches that age and in such manner as is prescribed by or under an Act of the Parliament, he renounces his other citizenship and makes the Declaration of Loyalty.

34. The plaintiff did not renounce her British citizenship and did not make the Declaration of Loyalty before she reached the age of 19 years. Therefore, upon reaching the age of 19 years, she ceased to be a PNG citizen. That was the effect of Section 64(1) of the Constitution: she had a "real foreign citizenship" (her British citizenship) and she could no longer also be a PNG citizen. 

35. Mr Ame, for the plaintiff, tried to develop an argument, based on Section 70(1) (automatic loss of citizenship) of the Constitution, that the plaintiff did not lose her citizenship when she turned 19, as she had obtained her British citizenship by an involuntary act. Section 70, at the relevant time, 1 May 1994, stated:

A citizen who has reached voting age and is of full capacity who—

(a)	obtains the nationality or citizenship of another country by a voluntary act (other than marriage); or

(b)	exercises a right that is exclusive to nationals or citizens of another country, unless the Minister responsible for citizenship matters is satisfied that the right was exercised inadvertently; or

(c)	takes an oath or makes a declaration or affirmation of allegiance to another country or to the Sovereign or Head of State of another country; or

(d)	does, agrees to or adopts any act (other than marriage) by which he becomes a national or citizen of another country; or

(e)	enters or serves in the armed forces of another country, except with the express approval of the Head of State, acting with, and in accordance with, the advice of the National Executive Council; or

(f)	except as permitted by an Act of the Parliament, votes in a national, provincial, state or local election, or accepts elective office, of another country; or

(g)	subject to Subsection (3), travels under the protection of a passport or purported passport of another country in which he is described as a citizen or national of that country,

loses his citizenship.

36. Mr Ame submitted that the plaintiff acquired her British citizenship in December 1975 by an involuntary act as she was only seven months old, and it was her father, Mr Player, who made the application. That is a fact. But it does not provide any support for the argument being advanced. Section 70(1) does not say that if a PNG citizen acquires citizenship of another country by an involuntary act, she or he can also remain a PNG citizen. 

37. The dominant provision is Section 64, and the 'rules' are clear:

•	if you are born an "automatic citizen" you are entitled to be a PNG citizen and also be the citizen of another country – to have dual citizenship – until you turn 19;

•	if you turn 19 and you have not renounced your foreign citizenship and made the Declaration of Loyalty, you automatically lose your PNG citizenship. 

38. This is still the case under the new Section 64, which repealed and replaced the former Section 64 under the Constitutional Amendment (No 37) (Citizenship) Law 2014. The new Section 64 makes provision for dual citizenship, but in limited circumstances, and it retains the 'rules' explained above (in Sections 64(1) and (9). It states:

(1)	Except as provided by this section, no person who has a real foreign citizenship shall be or become a citizen.

(2)	A citizen may apply to the Minister responsible for citizenship matters to be a citizen of a prescribed country, and the Minister may, if he is satisfied as to the matters referred to in Subsection (4), in his deliberate judgment (but subject to Division 4 (Citizenship Advisory Committee)), grant or refuse the application.

(3)	A citizen of a prescribed country who would otherwise be qualified to be a citizen under Sections 65, 66 or 67, of the Constitution may apply to the minister responsible for citizenship matters to be a citizen, and the Minister may, if he is satisfied as to the matters referred to in Subsection (6), in his deliberate judgment (but subject to Division 4 (Citizenship Advisory Committee)), grant or refuse the application.

(4)	To be eligible to hold citizenship of a prescribed country under Subsection (2) —

(a)	the citizen must demonstrate that a prescribed country will grant him citizenship; and

(b)	the reasons why he wants to be a citizen of a prescribed country.

(5)	To be eligible to be a citizen under Subsection (3) —

(a)	a person must be qualified to be a citizen —

(i)	under Section 65 (automatic citizenship); or
(ii)	under Section 66 (citizenship by descent); or
(iii) under Section 67 (citizenship by naturalization); and

(b)	the person must specify the reasons why he wants to be a citizen of Papua New Guinea while still holding the citizenship of the prescribed country.

(6)	An Act of Parliament may make provisions on matters that the Minister should, or should not take into account under Subsections (2), (3), (4) and (5).

(7)	Constitutional regulations shall prescribe the countries to which persons will be permitted to hold citizenship under this section.

(8)	The Minister responsible for citizenship matters may, in his deliberate judgment, (but subject to Division 4 (Citizenship Advisory Committee), recall and cancel an approval given under Subsections (4) and (5) if, at any time after granting of approval, circumstances exist —

(a)	which were not known at the time; or
(b)	which are new as a result of change occurring since approval was given, that if these were known or existed at the time approval was granted, approval would not have been granted.

(9)	Subsection (1) does not apply to a person who has not yet reached the age of 19 years, provided that, before he reaches that age and in such manner as is prescribed by or under an Act of the Parliament, he renounces his other citizenship and makes the declaration of Loyalty.

(10)	A person who has a real foreign citizenship and fails to comply with Subsection (2) ceases to be a citizen of Papua New Guinea when he reaches the age of 19 years.

(11)	For the purposes of this section, a person who —

(a)	was, immediately before Independence Day, an Australian citizen or an Australian Protected Person by virtue of —

(i)	birth in the former Territory of Papua; or
(ii)	birth in the former Territory of New Guinea and registration under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; and

(b)	was never granted a right (whether revocable or not) to permanent residence in Australia,

has no real foreign citizenship.

Conclusion 

•	From 1 May 1975 to 30 April 1994 the plaintiff was a PNG citizen. In that period she was lawfully a dual citizen, having acquired British citizenship in December 1975. 

•	At midnight on 30 April 1994, upon attaining the age of 19 years, she lost her PNG citizenship. 

•	Since 1 May 1994 nothing has happened to restore her PNG citizenship. Nothing has happened to deprive her of her British citizenship. 

•	The plaintiff is not a PNG citizen. 

•	She is a non-citizen.

•	She is a British citizen. 

•	The relief sought in paragraphs 1, 1A, 1B and 1C of the amended originating summons is refused.

2	SHOULD THE DEFENDANTS BE RESTRAINED FROM DEPORTING THE PLAINTIFF?

39. At this stage it is necessary to address paragraph 2 of the originating summons, under which the plaintiff seeks an order "That any purported deportation by the first defendant, his officers, servants and agents of the plaintiff without an order of the second defendant pursuant to Section 12(1) of the Migration Act is illegal and unconstitutional and null and void." 

40. I have no difficulty granting this order as it is clear that the first defendant, the Chief Migration Officer, has no power to deport, or more correctly, remove a non-citizen from Papua New Guinea. That power is vested in the second defendant, the Minister, under Section 12(1) (removal orders) of the Migration Act, which states:

(1)	The Minister may order the removal from the country of—

(a)	a person whose presence in the country is unlawful; and
(b)	at the further discretion of the Minister—any dependants of such a person.

(2)	A removal order shall—

(a)	be served on the person to be removed; and
(b)	state a period from the date of service within which the person or dependants to be removed shall be removed or shall remove himself or themselves from the country.

(3)	The Minister may vary or revoke a removal order.

41. In this case, the first defendant, or at least the Authority that he controls, issued to the plaintiff a "direction to leave the country", which was tantamount to a removal order and therefore beyond his power. 

42. However, that leaves open the question of whether the Minister can make an order for removal of the plaintiff from the country, and if he can, should he be restrained from doing so. As for the first of those questions, clearly the answer is yes. If it were not for the interim injunction of the National Court, which authorises the plaintiff's presence in the country, she would as a matter of law be unlawfully in the country. She is a non-citizen and has no entry permit or any other lawful process authorising her presence in the country.

43. The second question has a more complex answer. The Court cannot ignore the fact that under the Constitution of Papua New Guinea all persons who are in the territorial boundaries of the country have human rights. Some human rights are conferred exclusively on citizens. But the bulk is conferred on all persons, including non-citizens.

44. I raised this issue with counsel in the course of submissions. As the facts of this case were revealed, it became clear to the Court that there was a real question to be posed as to the justice and humanity of requiring the deportation of someone from Papua New Guinea who has lived here for most of their life – three quarters of their life – and who has biological children and a husband (though separated) and a mother who are present and living in the country. I raised with counsel that question and asked them to address the Court on the question of whether the proposed removal from PNG of such a person, and giving her a one-way ticket to the United Kingdom, can be regarded as a harsh or oppressive act under Section 41 (proscribed acts) of the Constitution and one that ought to be restrained by the Court. 

45. Section 41 of the Constitution states: 

(1)	Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a)	is harsh or oppressive; or
(b)	is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c)	is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)	The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)	Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

46. Section 41 is central to an understanding of human rights in Papua New Guinea. It is broad and powerful in its operation. It provides a bulwark against oppression, prejudice and tyranny. It overrides all non-constitutional laws. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, Joe Kape Meta v Constable Paul Kumono (2012) N4598, Kelly Koi v Constable Mathew Anseni (2014) N5580, Roger Bai Nimbituo & 4 Others v The State (2015) N6156). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

1.	harsh; or
2.	oppressive; or
3.	not warranted by the requirements of the particular circumstances;
4.	disproportionate to the requirements of the particular circumstances;
5.	not warranted by the requirements of the particular case; or
6.	disproportionate to the requirements of the particular case; or
7.	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

47. Section 41 must be understood in the context of Section 37(1) of the Constitution, which provides:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

48. Though she was unlawfully in the country, for the purposes of the Migration Act (as she was a non-citizen without an entry permit), the plaintiff is nevertheless entitled to the full protection of the law under Section 37(1). And she is entitled to protection against harsh or oppressive or other unlawful acts under Section 41(1). 

49. I have concluded, after close consideration of the circumstances of this particular case, that it would be harsh and oppressive for the defendants to direct the plaintiff to leave the country or order her removal, and that she must be afforded the full protection of the law against such acts, when it is considered that: 

(a) she was for the first 19 years of her 40-year life a citizen; 

(b) she has lived most of her life, three-quarters of it, in PNG;

(c) she reasonably and genuinely regards PNG as home, and herself as a Papua New Guinean;

(d) her mother is a citizen; 

(e) she is married to a citizen; 

(f) most importantly: her three biological children are citizens; 

(g) she has a close connection to her mother's culture and customs and is fluent in Tok Pisin and her mother's tok ples;

(h) she has no home to go to or any support network in the country of her citizenship. 

50. I have no hesitation in declaring that it would be harsh and oppressive to deport the plaintiff from PNG. Deporting her would be to order a mother to be cut off from her own children, her mother and her family. The defendants ought to be restrained from such harsh and oppressive acts, which are not reasonably justifiable in a democratic society, having a proper regard for the rights and dignity of mankind

3 	WHAT DECLARATIONS AND ORDERS SHOULD THE COURT MAKE?

51. In deciding what declarations and orders are necessary there are several considerations to bear in mind, and they all centre on the concept of justice:

•	this is a Court of justice;

•	in interpreting the laws of Papua New Guinea the Court is obliged by Section 159 of the Constitution to give paramount consideration to the dispensation of justice; 

•	this Court has an inherent power under Section 155(4) of the Constitution to make orders that are necessary to do justice;

•	Section 57 of the Constitution obliges the Court to protect and enforce human rights – and human rights and the concept of justice are at the centre of this case – and to act on its own initiative, if necessary.

52. Because the Court is so heavily bound to protect human rights and make orders in the interests of justice, it follows that the Court is also bound to correct injustice, whenever it is detected. 

53. I detect an injustice. I consider that the actions and proposed actions of the defendants are so callous, and so reckless as to the human rights of the plaintiff and the human rights of her children and her mother and her family, that I am duty bound to correct these injustices, which are horrendous, in my view. I therefore make the following declarations and orders. 

54. It is declared and ordered that:

(1)	The relief sought in paragraphs 1, 1A, 1B and 1C of the amended originating summons is refused and accordingly it is declared that the plaintiff is not a PNG citizen; she is a British citizen.
 
(2)	The relief sought in paragraph 2 of the amended originating summons is granted and accordingly it is declared that any purported deportation of the plaintiff by the first defendant or his officers, servants or agents is unlawful. 

(3)	The first defendant shall forthwith withdraw the direction of the PNG Immigration and Citizenship Service Authority, dated 15 April 2015, for the plaintiff to leave the country. 

(4)	The defendants are restrained forthwith from taking any further steps towards removing or deporting the plaintiff from the country, without the leave of the National Court, which shall be sought in separate proceedings commenced by originating summons.

(5)	The defendants shall forthwith facilitate the making by the plaintiff of an application for PNG citizenship in accordance with the relevant laws.

(6)	The plaintiff shall forthwith cooperate with the defendants and make an application for PNG citizenship, with all due dispatch.

(7)	The defendants shall take all steps necessary to ensure that the plaintiff's application for PNG citizenship is heard and determined as soon as is practicable.

(8)	It is declared that, unless and until the plaintiff's application for PNG citizenship is determined and leave of the Court is granted in accordance with (4), her presence in the country shall be deemed to be lawful.

(9)	The plaintiff and the first defendant shall by 29 March 2016 file and serve affidavits setting out the steps they have each taken to comply with these declarations and orders.

(10)	There shall be a hearing on 31 March 2016 at 9.30 am to check compliance with these declarations and orders.

(11)	The parties shall bear their own costs of these proceedings.

Judgment accordingly.
__________________________________________________________________
Ame Lawyers: Lawyers for the Plaintiff 
B E Kua, PNG Immigration & Citizenship Service Authority: Lawyer for the First & Second Defendants