N8465
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 66 OF 2020

STANIS HULAHAU  
Plaintiff
      
V

ROBERT BARA KENNEDY, ACTING CHIEF MIGRATION OFFICER
First Defendant

PNG IMMIGRATION AND CITIZENSHIP SERVICE AUTHORITY
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2020: 10th, 12th June, 25th August

LAW OF EMPLOYMENT – public sector employment – PNG Immigration and Citizenship Service Authority –Deputy Chief Migration Officer– termination of employment

PRACTICE AND PROCEDURE – whether public official whose employment is terminated obliged to exhaust administrative remedies before commencing Court proceedings. 

REMEDIES – declarations – whether relief sought by plaintiff would resolve real controversy between parties – whether failure to seek consequential orders is abuse of process.

The plaintiff held one of four Deputy Chief Migration Officer positions in the PNG Immigration and Citizenship Service Authority pursuant to a three-year written contract of employment commencing on 9 July 2018. On 23 December 2019 the Acting Chief Migration Officer, as chief executive officer of the Authority, declared the four Deputy Chief Migration Officer positions vacant and advertised them internally. The plaintiff applied for his old position. On 21 February 2020 the Acting Chief Migration Officer notified the plaintiff that his application was unsuccessful, and that on 21 March 2020 his employment with the Authority would cease. The plaintiff was aggrieved by those actions and commenced proceedings by originating summons against the Acting Chief Migration Officer (first defendant), the Authority (second defendant) and the State (third defendant). He sought: declarations that the first defendant lacked power as Acting Chief Migration Officer to make the various decisions regarding his employment, that the decisions of the first defendant’s predecessor concerning the plaintiff’s employment status remained valid, and orders that the first defendant’s decision to appoint another officer to the position previously occupied by the plaintiff is null and void and that the first defendant be permanently restrained from dealing or interfering with the plaintiff. The defendants argued that the proceedings were an abuse of process and ought to be summarily dismissed as the plaintiff failed to exhaust administrative remedies prior to commencing the proceedings and the originating summons sought only declarations, raising academic issues, without claiming consequential relief. As to the merits of the case the defendants argued that the first defendant, though holding the office of Chief Migration Officer on an acting basis, had all the powers and functions of the substantive holder of the office, including the power under the Immigration and Citizenship Service Act 2010 to remove a Deputy Chief Migration Officer and appoint another person in his place. Also, that the plaintiff’s contract of employment did not protect him from termination of employment as, after the contract was executed in 2018, there was an organisational restructure and the position that he occupied under the contract no longer existed. 

Held:

(1)	There was no abuse of process as these are not judicial review proceedings, so the plaintiff was not obliged to exhaust administrative remedies before commencing the proceedings; and though the principal relief sought was in the form of declarations and the orders sought for consequential relief were limited in their nature and extent, there was a real controversy at the centre of the case. And the originating summons, though drafted in a novel manner, was not so inappropriately drawn as to prevent the Court making efficacious and meaningful orders that would determine the real issues in dispute.

(2)	The first defendant held the position of Chief Migration Officer on an acting basis and had the powers, functions, duties and responsibilities of that office, of the same nature and extent as if he were the substantive holder of the office.

(3)	The first defendant acted unlawfully by declaring the plaintiff’s position vacant, advertising the position, regarding the plaintiff’s contract of employment as being nullified by an organisational restructure, removing the plaintiff from his position, appointing another person to the position and terminating the plaintiff’s employment. 

(4)	Declarations of illegality were granted, together with an order that the first defendant’s appointment of another person to the plaintiff’s position was illegal. 

(5)	It was ordered, pursuant to s 155(4) of the Constitution, that the first defendant shall restore the plaintiff to his former position within 14 days after the date of judgment and pay him any emoluments lost as a consequence of his unlawful removal from office within 28 days after the date of judgment. 

Cases Cited

The following cases are cited in the judgment:

Application Pursuant to s 155(4) by John Mua Nilkare (1997) SC536
Avia Aihi v The State (No 1) [1981] PNGLR 81
Bill Skate and Peter O'Neill v Jeffrey Nape, Speaker of Parliament (2004) SC754
Constitutional Reference No 1 of 1978 Re Leo Morgan [1978] PNGLR 460
Donigi v The State [1991] PNGLR 376
Gabriel Yer v Peter Yama (2009) SC996
Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156
Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425
Placer Dome (PNG) Ltd v Yako (2011) N4691
Pundi v Rupen (2015) SC1430
Rageau v Kina Finance Ltd (2015) N6175
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
SC Ref No 3 of 2018, Reference by the Public Solicitor re Jurisdiction of the Public Services Commission (2019) SC1871
The State v Central Provincial Government (2009) SC977
Ume More v UPNG [1985] PNGLR 401
Yanoda v Telikom (PNG) Ltd (2015) N5861

ORIGINATING SUMMONS

This was a trial in which the plaintiff sought declarations and orders as to the termination of his employment with a governmental body.

Counsel

M Koimo, for the Plaintiff
H K White, for the Defendants

25th August, 2020

1.      CANNINGS J: The plaintiff, Stanis Hulahau, was appointed in July 2018 to  one of four Deputy Chief Migration Officer positions in the PNG Immigration and Citizenship Service Authority on a three-year written contract of employment. 

2.     On 23 December 2019 the Acting Chief Migration Officer, Robert Bara Kennedy, as chief executive officer of the Authority, declared the four Deputy Chief Migration Officer positions vacant and advertised them internally. The plaintiff applied for his old position. 

3.       On 21 February 2020 the Acting Chief Migration Officer notified the plaintiff that his application was unsuccessful, that another officer had been appointed to the position, that he would remain for one month on the payroll as an unattached officer, and that on 21 March 2020 his employment with the Authority would cease and that he would be paid his final entitlements. The plaintiff’s employment was to be terminated.

RELIEF SOUGHT 

4.        The plaintiff was aggrieved by those actions and commenced proceedings by originating summons (OS) against the Acting Chief Migration Officer (first defendant), the Authority (second defendant) and the State (third defendant). He seeks:

•	a declaration that the first defendant lacked power as Acting Chief Migration Officer to make the various decisions regarding his employment (OS, paras 1, 2 and 3);

•	a declaration that the decisions of the first defendant’s predecessor concerning his employment status remained valid (OS, para 4);

•	a declaration that the first defendant acted unlawfully by declaring the four Deputy Chief Migration Officer positions vacant and advertising them internally (OS, paras 5 and 6);

•	a declaration that the first defendant acted unlawfully by determining that his contract of employment executed on 9 July 2018 was nullified by the organisational restructure of 2019 (OS, para 7);

•	an order that the first defendant’s decision to appoint another officer to the position he previously occupied is illegal, of no legal effect and null and void (OS), para 9); 

•	an order that the first defendant be permanently restrained from dealing or interfering with him as the duly appointed Deputy Chief Migration Officer, Compliance and Enforcement (OS, para 10);

•	costs (OS, para 11); and 

•	any other orders the Court sees fit (OS, para 12). 

5.     The claim in paragraph 8 of the originating summons for a declaration that the first defendant was illegally in office was abandoned at the start of the trial. 

DEFENDANTS’ POSITION 

6.      The defendants argue that the proceedings are an abuse of process and ought to be summarily dismissed for two reasons: 

•	the plaintiff failed to exhaust administrative remedies, including seeking review of the first defendant’s decisions by the Public Services Commission; and 

•	the originating summons seeks only declarations, raising academic issues, without claiming consequential relief. 

7.     As to the merits of the case the defendants argue that the first defendant, though holding the office of Chief Migration Officer on an acting basis, has all the powers and functions of the substantive holder of the office, including the power under the Immigration and Citizenship Service Act 2010 to remove a Deputy Chief Migration Officer and appoint another person in his place. Also, that the plaintiff’s contract of employment did not protect him from termination of employment as, after the contract was executed in 2018, there was an organisational restructure and the position that he occupied under the contract no longer existed. 

ISSUES

8.     The following issues arise:

1.	Should the proceedings be dismissed as an abuse of process?

2.	Did the first defendant lack power to make decisions regarding the plaintiff’s employment due to his being Acting Chief Migration Officer?

3.	Did the decisions of the first defendant’s predecessor concerning the plaintiff’s employment status remain valid?

4.	Did the first defendant act unlawfully by declaring the plaintiff’s position vacant and advertising it internally?

5.	Did the first defendant act unlawfully by determining that the plaintiff’s 2018 contract of employment was nullified by the 2019 organisational restructure? 

6.	Was the first defendant’s decision to appoint another officer as Deputy Chief Migration Officer, Compliance and Enforcement, unlawful? 

7.	Should the first defendant be restrained from dealing or interfering with the plaintiff? 

8.	What orders should the Court make? 

FACTS

9.	    I make the following findings of fact. 

2018

9 July 	The plaintiff was appointed Deputy Chief Migration Officer, Compliance and Border Division, under a three-year written contract of employment. It was his first position in the Authority. He had for the previous ten years been a senior officer of the Office of Security Coordination and Assessment in the Department of Prime Minister and National Executive Council. 

2019

15 July	The then Chief Migration Officer, Solomon Kantha,issued circular No 63/2019 notifying staff that the Salaries and Conditions Monitoring Committee had approved the new organisational structure for the Authority with an increase from 248 to 392 positions. 

6 September 	As part of the organizational restructure the plaintiff was appointed Acting Deputy Chief Migration Officer, Compliance and Enforcement. The other Deputy Chief Migration Officers were also given acting appointments in the transitional period. 

30 September 	Mr Kantha appointed the plaintiff as Deputy Chief Migration Officer, Compliance and Enforcement, under the new organisational structure. 

6 December 	Mr Kantha was removed as Chief Migration Officer by virtue of a decision of the National Executive Council.

9 December 	The first defendant was appointed Acting Chief Migration Officer. Prior to this appointment he was the General Manager Finance, under the Deputy Chief Migration Officer, Corporate Services, in the Authority. 

20 December 	The first defendant revoked the plaintiff’s appointment as Deputy Chief Migration Officer, Compliance and Enforcement, and notified him that he would act in that position pending internal advertisement of the position and a decision on a substantive appointment. 

23 December 	The first defendant issued circular No 101/2019, notifying staff that the plaintiff’s former position, amongst others, was vacant. He stated:

This circular serves to inform all staff that the following positions are now vacant for the most suitable officers to apply internally.

Deputy Chief Migration Officer Corporate Service Division	:	ICA CS 024

Deputy Chief Migration Officer Borders Division	:	ICA BD 162

Deputy Chief Migration Officer Compliance & Enforcement Division: 	ICA CE 103

Deputy Chief Migration officer Visa & Passport Division	:	ICA VP 265

This is consistent to Circular 75 of 2019 dated 6 September 2019 encouraging all officers to apply for these positions to ensure our recruitment exercise is open, fair and merit-based since all Deputy Chief Migration Officers were directly appointed by former Chief Migration Officer without a formal internal advertisement to give potential and prospective staff who have necessary experiences and qualifications to apply.

The Deputy Chief Migration Officers of the four divisions will act in the capacity of Deputy Chief Migration Officer pending the completion of the internal recruitment process.

2020

7 January	The Secretary for Personnel Management, Taies Sansan, wrote to the first defendant, advising him that his announcement of vacancies in the Deputy Chief Migration Officer positions and the internal advertisement was not in order, as there were no vacancies due to the appointments made by Mr Kantha in September 2019 and it was in breach of Special General Order No 11/2019, which stipulates that prior approval must be sought from her office on all such internal advertisements. 

17 February	The first defendant issued circular No 20/2020 notifying the appointments to the four Deputy Chief Migration Officer positions. Dominic Ampa’oi was appointed Deputy Chief Migration Officer, Compliance and Enforcement. 

21 February	The first defendant wrote to the plaintiff, notifying him that his employment would be terminated one month hence:

Dear Mr Hulahau,

SUBJECT: ADVICE ON THE OUTCOME OF YOUR APPLICATION TO THE POSITION OF DEPUTY CHIEF MIGRATION OFFICER – COMPLIANCE & ENFORCEMENT DIVISION – POSITION NO ICA CE 103, GRADE 15

I have considered all the applications by eligible ICA staff applicants including yourself for the position of Deputy Chief Migration Officer-Compliance & Enforcement Division in the new organization structure of 392 positions. All applicants were screened through the normal recruitment process by Human Resource Branch and after careful consideration of the shortlist, your application was considered unsuccessful.

I acknowledge your experience and qualification, however the successful applicant I opted for is one who had been with PNG ICA for over 20 years, well versed with compliance and enforcement duties, a team player with leadership abilities to lead and mentor upcoming officers to build capacity of Compliance & Enforcement division to fulfil the mandate of the authority.

You are given one month to be on ICA payroll as an unattached officer and all contract allowances pertaining to Grade 15 position level (or DCMO) will be paid to you except gratuity allowance as you do not have a contract in place.

Your old Performance Based Contract of Employment (PBCE) signed on 9 July 2018 under the reign of former Chief Migration Officer, Mr Solomon Kantha, in the old organizational structure of 248 positions is nullified by the implementation of the new organization structure of 392 positions commencing on 6 September 2019 with acting appointments made of all existing staff to the new positions per Circular No 75/ 2019.

PNG ICA will be seeking DPM’s advice for clearance to pay out the remainder of the contractual benefits for all contract officers including yourself on their old Performance Base Contract of Employment which was severed by the implementation of new organization restructure.

You are further advised that by 21 March 2020 your employment will cease with ICA and all your final entitlements will be paid out. You are also required to return all ICA properties and vacate the office and the institutional house you are residing in before the end of the month.

I wish you all the best in your future endeavours.

Your sincerely,

Robert Bara Kennedy
Acting Chief Migration Officer

3 March	The plaintiff commenced the present proceedings. 

Those are the facts. I now determine the eight issues identified earlier. 

1 	SHOULD THE PROCEEDINGS BE DISMISSED AS AN ABUSE OF PROCESS?

10.      Mr White, for the defendants, submitted that the plaintiff commenced these proceedings prematurely. He should have exhausted administrative remedies, especially by taking his case to the Public Services Commission, before approaching the Court. Therefore the proceedings are an abuse of process. 

11.      I reject that argument. These are not judicial review proceedings, so the plaintiff was not obliged to exhaust administrative remedies before commencing the proceedings. The suggestion that he should have sought review by the Public Services Commission is not a good one. The Commission would have no jurisdiction to review personnel decisions regarding the Immigration and Citizenship Service Authority as it is not part of the National Public Service (SC Ref No 3 of 2018, Reference by the Public Solicitor re Jurisdiction of the Public Services Commission (2019) SC1871). 

12.     The other abuse of process argument is that the plaintiff is largely seeking declarations, which are in vague and general terms, raising academic and hypothetical questions, without seeking consequential relief. There is no real dispute between the parties. Mr White relies on the decision of the Supreme Court in The State v Central Provincial Government (2009) SC977 in support of this proposition. 

13.     In that case the Central Provincial Government sought declarations in the National Court that an extension of the mining lease of Tolukuma Gold Mines was unconstitutional and null and void. The Supreme Court ruled that the National Court proceedings were an abuse of process. The plaintiff had only sought declarations, without consequential relief, and failed to satisfy the criteria for granting of declaratory relief. The Court endorsed principles applied by Kapi DCJ in Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425 and by Brown J in Donigi v The State [1991] PNGLR 376: if a plaintiff seeks a “mere declaratory order” without seeking consequential relief it will usually be the case that the Court should refuse to make the declaration. 

14.     Mr White pointed to other National Court cases including Placer Dome (PNG) Ltd v Yako (2011) N4961 and  Rageau v Kina Finance Ltd (2015) N6175 and the decision of the Supreme Court in Pundi v Rupen (2015) SC1430 as support for the argument that the present case should be dismissed as an abuse of process. He submitted that it fails to satisfy the criteria set out in the leading case, adopted in PNG, the decision of the House of Lords in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438. The inherent jurisdiction of the National Court to grant a declaration of the rights and obligations of parties or the legal effect of their actions should only be exercised if the following criteria are satisfied:

(a)	there must exist a controversy between the parties;

(b)	the proceedings must involve a right;

(c)	the proceedings must be brought by a person who has a proper or tangible interest in obtaining the order;

(d)	the controversy must be subject to the court's jurisdiction;

(e)	the defendant must be a person having a proper or tangible interest in opposing the plaintiff's claim; and 

(f)	the issue must be a real one, it must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.

15.     I agree that it seems unusual that the originating summons focuses so much, in paragraphs 1 to 7, on seeking declarations. It is only in paragraphs 8 (which has been abandoned), 9 and 10 that orders, as distinct from declarations, are sought; and in those paragraphs the orders are not expressed in clear and direct terms such as seeking an order that the plaintiff be reinstated or an order for damages. 

16.    As I remarked when faced with a similar abuse of process argument in Yanoda v Telikom (PNG) Ltd(2015) N5861, I don’t understand why such an indirect approach has been taken. Perhaps the proceedings would have more appropriately been commenced by writ of summons. The elements of the plaintiff’s claim would have clearly been spelt out. The defendants would have filed defences. Then the issues would have been more clearly defined. 

17.     However, I am not persuaded that the case ought to be summarily dismissed because of the plaintiff’s preoccupation with declarations. I am satisfied that the Russian Commercial and Industrial Bank criteria have been satisfied, in that:

(a)	A real controversy exists between the parties: the plaintiff is claiming that the first defendant acted unlawfully in removing him from the position held under a contract of employment. The defendants deny that.

(b)	The proceedings involve legal rights: the plaintiff is asserting a legal right to hold an office on terms and conditions provided for in a contract of employment, entered into in accordance with law.  

(c)	The proceedings have been brought by a person who has a proper and tangible interest in obtaining relief against the defendants.

(d)	The controversy is within the jurisdiction of the National Court.

(e)	The defendants, in particular the first defendant, whose legal authority to make the decisions that have affected the plaintiff is challenged, have a proper and tangible interest in opposing the plaintiff’s claims.

(f)	The issues are real. They are not merely of academic interest or hypothetical. Their resolution will have practical utility. Though the first eight remedies sought in the originating summons are largely declaratory in nature, the last four (paragraphs 9 to 12) seek consequential relief in the form of orders; including the last one, No 12 – “any such others the Court sees fit” – which provides scope for the Court to make direct and consequential orders, having real practical utility.

18.     I consider that the originating summons, though drafted in a novel manner, is not so inappropriately drawn as to prevent the Court making efficacious and meaningful declarations and orders that will determine the real issues in dispute. There is no abuse of process. The proceedings will not be summarily dismissed. 

2	DID THE FIRST DEFENDANT LACK POWER TO MAKE DECISIONS REGARDING THE PLAINTIFF’S EMPLOYMENT DUE TO HIS BEING ACTING CHIEF MIGRATION OFFICER?

19.     Mr Koimo, for the plaintiff, submits that ss 22, 23, 24 and 25 of the Immigration and Citizenship Service Act, which provide for the appointment of the Chief Migration Officer as the chief executive officer of the Authority (s 22), prescribe the functions of that office (s 23), provide for delegation of powers and functions by the Minister to the Chief Migration Officer (s 24) and allow the Chief Migration Officer to appoint officers of the Authority (s 25), do not provide for appointment of an acting Chief Migration Officer or allow a person who is an acting Chief Migration Officer to make decisions on recruitment, selection, appointment or termination or appointment of staff. He submits that this is confirmed by s 58, which states:

In carrying out of the functions and the exercise of the powers of the Authority, the Acting Chief Migration Officer in his role as caretaker, pending the appointment of the members of the Authority, shall not, without the consent of the Minister:

(a)	initiate any major new policy or major changes in the policy of the Authority immediately before the commencement date; or
(b)	effect any major change to the staff of the Authority.

20.      Mr Koimo submits that all decisions of the first defendant to revoke the plaintiff’s appointment, declare that he was acting in the position of Deputy Chief Migration Officer, advertise his position, appoint another person to his position and terminate his employment, were made without lawful authority due to the first defendant being only an acting Chief Migration Officer. Furthermore, Mr Koimo submitted, there is no evidence of any delegation by the Secretary for Personnel Management of the power in s 23 of the Public Services (Management) Act 1995 to appoint or remove officers of the Authority. 

21.     I reject those submissions. First, s 58 is not relevant. It is in Part VI of the Act, headed “Transitional and Saving”. It was only applicable in the period immediately after commencement of the Act in 2010 when the Authority’s services and functions, which had been previously performed by a division within the Department of Foreign Affairs and Trade, were in the process of being transferred to the Authority. The first person to hold office as Chief Migration Officer was appointed in an acting capacity and regarded as a “caretaker”.

22.     Secondly, though the Act makes no express provision elsewhere for appointment of an acting Chief Migration Officer, it does not have to. Acting appointments are adequately catered for by s 53 of the Interpretation Act Chapter No 2, which states:

(1)	In this section, "office" includes position.

(2)	Where a statutory provision confers power to make an appointment to an office and in respect of that office—

(a)	there is a vacancy; or
(b)	the holder of the office is suspended; or
(c)	the holder of the office is—

(i)	on leave of absence; or
(ii)	absent from the country; or
(iii)	out of speedy and effective communication; or
(iv)	otherwise unable to perform, or not readily available to perform the duties of his office,

the power includes power, subject to Subsection (3), to appoint another person to act in the office.

(3)	The power provided for by Subsection (2) is exercisable only subject to any conditions to which the exercise of the original power was or would be subject.

(4)	An acting appointment may be made in anticipation of any of the circumstances specified in Subsection (2) and, unless it expires or is revoked, such an acting appointment continues to operate from time to time in accordance with its terms.

23.     It must be presumed, in the absence of any valid argument or evidence to the contrary, that the first defendant was lawfully appointed as Acting Chief Migration Officer on 9 December 2019, immediately after the decision to revoke the appointment of Mr Kantha as Chief Migration Officer.

24.     It is also presumed, in the absence of any valid argument or evidence to the contrary (for example, limitations set out in the terms of the instrument of the first defendant’s acting appointment) that the first defendant had the powers, functions, duties and responsibilities of the office of Chief Migration Officer, of the same nature and extent as if he were the substantive holder of the office. This is the case by virtue of s 33 (powers and duties conferred on office-holders) of the Interpretation Act, which states:

(1)	Where a statutory provision confers a power or function on the holder of an office as such, the power may be exercised, or the function shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.

(2)	The exercise or performance of a power or function referred to in Subsection (1) does not cease to be effective by reason only of the fact that the holder of the office is later suspended from, or ceases to hold, the office.

25.     There is little case law on this point, probably because it is so widely accepted that a person holding an acting appointment is in the same position as the substantive holder of the office. The Supreme Court in Constitutional Reference No 1 of 1978 Re Leo Morgan [1978] PNGLR 460 decided that a person holding office as an acting Departmental Head is subject to the Leadership Code in the same way and to the same extent as a person who is the substantive holder of that office. That is sufficient authority to undermine the arguments advanced by the plaintiff.

26.     Thirdly, it was not necessary for the Secretary for Personnel Management to delegate power under the Public Services (Management) Act, to appoint officers, to the Acting Chief Migration Officer. Such powers are conferred on the Chief Migration Officer (irrespective of whether the incumbent holds the office in a substantive or acting capacity) by ss 25 and s 26 of the Immigration and Citizenship Service Act 2010, which state:

25.	Appointment of other employees.

(1)	The Chief Migration Officer may appoint to be officers of the Authority such persons as he may consider fit and necessary for the purposes of the Authority.

(2)	The terms and conditions of employment of officers appointed under Subsection (1) shall be determined in accordance with the Salaries and Conditions Monitoring Committee Act 1988.

26.	Temporary and casual employees.

(1)	The Chief Migration Officer may appoint such temporary and casual employees as are necessary for the purposes of the Authority.

(2)	Employees appointed under Subsection (1) are not employees for the purposes of the Salaries and Conditions Monitoring Committee Act 1988 and shall be employed on such terms and conditions as the Chief Migration Officer determines.

27.     It is clear that the first defendant did not lack power to make decisions regarding the plaintiff’s employment due to his being the Acting Chief Migration Officer. 

3	DID THE DECISIONS OF THE FIRST DEFENDANT’S PREDECESSOR CONCERNING THE PLAINTIFF’S EMPLOYMENT STATUS REMAIN VALID?

28.     The question here is whether the decisions of the then Chief Migration Officer, Mr Kantha, concerning the plaintiff’s employment status, particularly decisions made in September 2019 regarding implementation of the new organisational structure, and the appointment of the plaintiff to the position of Deputy Chief Migration Officer, Compliance and Enforcement, continued to have legal effect after Mr Kantha’s removal from office in December 2019. The plaintiff argues in the affirmative and the defendants have not really addressed the issue in their response.

29.     Section 33(2) of the Interpretation Act covers this situation by providing that “the exercise or performance of a power or function … does not cease to be effective by reason only of the fact that the holder of the office is later suspended from, or ceases to hold, the office”. 

30.     The decisions of Mr Kantha regarding the plaintiff remained valid, despite the revocation of Mr Kantha’s appointment. Those decisions continue in full force and effect until set lawfully aside or varied by a successor, including a successor such as the first defendant who held the position of Chief Migration Officer in an acting capacity. 

4	DID THE FIRST DEFENDANT ACT UNLAWFULLY BY DECLARING THE PLAINTIFF’S POSITION VACANT AND ADVERTISING  IT INTERNALLY?

31.    There was no effective argument raised by the defendants on this issue. I am satisfied that the answer is yes, for the following reasons:

•	the plaintiff was lawfully appointed by Mr Kantha in September 2019 to the position of Deputy Chief Migration Officer, Compliance and Enforcement, in the new organisational structure, approved by the Salaries and Conditions Monitoring Committee;

•	on 20 December 2019 (when the first defendant declared the plaintiff’s position vacant, together with the three other Deputy Chief Migration Officer positions) and 23 December 2019 (when the position was internally advertised) the plaintiff’s position was not vacant; 

•	the plaintiff’s position could only be properly regarded as vacant if the plaintiff were lawfully removed from the position in accordance with his contract of employment or by invocation of a procedure available under the terms and conditions of employment prescribed under s 25(2) of the Immigration and Citizenship Service Act;

•	there is no evidence that the first defendant followed any lawful procedure under the plaintiff’s contract of employment or the terms and conditions prescribed under s 25(2); and 

•	the first defendant’s decisions were, as pointed out by the Secretary for Personnel Management in her letter of advice of 7 January 2020 to the first defendant, in breach of Special General Order No 11/2019, which stipulates that prior approval must be sought from her office on all such internal advertisements.   

32.      The plaintiff has proven that the first defendant acted unlawfully by declaring his position vacant and advertising it internally. 

5	DID THE FIRST DEFENDANT ACT UNLAWFULLY BY DETERMINING THAT THE PLAINTIFF’S 2018 CONTRACT OF EMPLOYMENT WAS NULLIFIED BY THE 2019 ORGANISATIONAL RESTRUCTURE? 

33.     There was no effective argument raised by the defendants on this issue. I am satisfied that the answer is yes, for the following reasons:

•	the plaintiff’s three-year contract of employment, executed by the plaintiff and Mr Kantha,commencing on 9 July 2018,was entered into in accordance with s 28 (contract of employment) of the Immigration and Citizenship Service Act, which states:

The Chief Migration Officer and every other employee of the Authority (other than temporary or casual employees) shall be employed under a written contract of employment: 

(a)	in the case of the Chief Migration Officer, the written Contract of Employment shall be executed by the Head of State, acting on advice of the Minister and by the Chief Migration Officer; and

(b)	in the case of any other employee, shall be executed by the Chief Migration 
Officer on behalf of the Authority and the employee concerned.

•	the contract contains detailed grounds and an elaborate procedure for termination, such as Schedule 3, Clause 1 (grounds for termination), which provides:

The grounds on which the Chief Migration Officer may terminate the contract, subject to the conditions in Clause 2 are:-

(a)	legislative amendments affecting the continued employment of the Senior Officer or other grounds resulting in redundancy of the Senior Officer’s positions; or

(b)	for poor performance by the Senior Officer following a failure to improve performance over a reasonable period of time, following a formal written warning by the Chief Migration Officer; or

(c)	as a result of non-renewal of the contract by the Chief Migration Officer as a result of poor performance and/or misconduct recorded during the contract period;

(d)	for cause as a result of breach of contracts by the Senior Officer, as determined by the Chief Migration Officer following disciplinary action; or

(e)	on grounds of ill health, as advised by a medical officer appointed by the Chief Migration Officer; or

(f)	as a result of retirement as determined by the Chief Migration Officer; or

(g)	on resignation by the Senior Officer, as accepted by the Chief Migration Officer; or

(h)	in the best interest of the State as determined by the National Executive Council.

•	the first defendant did not invoke any of those grounds and did not purport to terminate the contract;

•	the contract continued to govern the terms and conditions of the plaintiff’s employment at all relevant times; and 

•	the organisational restructure had no effect on operation of the contract or on the terms and conditions of the plaintiff’s employment. 

34.     The plaintiff has proven that the first defendant acted unlawfully by determining on 21 February 2020 that the plaintiff’s contract was “nullified” by the organisational restructure. 

6	WAS THE FIRST DEFENDANT’S DECISION TO APPOINT ANOTHER OFFICER AS DEPUTY CHIEF MIGRATION OFFICER, COMPLIANCE AND ENFORCEMENT, UNLAWFUL? 

35.     There was no effective argument raised by the defendants on this issue. I am satisfied that the answer is yes, for the following reasons:

•	there was no vacancy in the position of Deputy Chief Migration Officer, Compliance and Enforcement, as the plaintiff was in occupation of the position and was not lawfully removed from it; and 

•	there is no evidence that the first defendant implemented any lawful selection procedure to appoint another person to the plaintiff’s position. 

36.     The plaintiff has proven that the first defendant acted unlawfully by appointing another person to the position that he lawfully occupied. 

7	SHOULD THE FIRST DEFENDANT BE RESTRAINED FROM DEALING OR INTERFERING WITH THE PLAINTIFF? 

37.     No, I see no good reason for making such an order. The plaintiff has not pursued this part of his case with vigour. 

8 	WHAT ORDERS SHOULD THE COURT MAKE? 

38.     I will determine the appropriate remedies according to the originating summons, which states that the plaintiff seeks the following relief:

1.	An order in the nature of a declaration that the First Defendant, in his capacity as the Acting Chief Migration Officer is not the Chief Migration Officer within the meaning of Section 22 of the Immigration & Citizenship Act 2010 and therefore cannot fully perform the full functions of the office of the Chief Migration Officer under section 23 which includes recruitment, selection and appointment of ICA officers.

2.	An order in the nature of a declaration that the First Defendant, in his capacity as the Acting Chief Migration Officer is not the Chief Migration Officer within the meaning of Section 22 of the Immigration & Citizenship Act 2010 and therefore cannot fully perform the functions of the office of the Chief Migration Officer under Section 23 which includes recruitment, selection and appointment of ICA officers and therefore  any exercise of his power under section 25 of the ICA Act is ultra vires and of no legal effect.

3.	An order in that nature of a declaration that the First Defendant by virtue of his capacity as the Acting Chief Migration Officer did not have any Delegated Authority under Section 23 of the Public Services Management Act 1995 from the Secretary, Department of Personnel Management to make decisions regarding recruitment, selection and appointment of staff of ICA under the new ICA structure.

4.	An order in that nature of a declaration, declaring and confirming that all decisions of the former Chief Migration Officer, Mr Solomon Kantha made before 9th December 2019 which includes the appointment of the plaintiff on 30 September 2019 is valid under Section 33 of the Interpretation Act 1975 and therefore the plaintiff has already been appointed to the position of DCMO – Compliance & Enforcement.

5.	An Order in the nature of a declaration that the First Defendant, in his capacity as the Acting Chief Migration Officer did not first sought the approval of the Secretary for Department of Personnel Management as required under Special General Order 11/2019 to advertise when no vacancies exist internally for the four(4) Deputy Chief Migrations Officer positions of the ICA and therefore the internal advertisement is illegal of the plaintiff’s position was illegal.[sic]

6.	An order in the nature of a declaration that the First Defendant, in his capacity as the Acting Chief Migration Officer wrongly advertised the position of the Plaintiff internally when no vacancy exist and that the plaintiff was already confirmed to the position on the 30th of September 2019.

7.	An order in the nature of a declaration that the First Defendant, in his capacity as the Acting Chief Migration Officer wrongly claimed in his letter dated 21st February 2020 that the Plaintiff’s contract under the old organizational structure of 248 is nullified by the new organizational structure of 392 when the entitlements of the new structure was yet to be approved by the SCMC and that the entitlements under the existing contract of the Plaintiff was still in force resulting in his fortnightly salary since January 2020.

8.	An order in the nature of a declaration that the First Defendant, in his capacity as the Acting Chief Migration Officer being charged for Official Corruption for extortion of money from Tasion Group and currently defending his case before the National Court is therefore illegally in office performing the role of the ACMO and therefore any decision from his office are null and void and of no legal effect.

9.	An order that the decision of the First Defendant contained in his Circular No 20/2020 especially the decision appointing Dominic Ampa’oi to the position of the plaintiff is illegal and is of no legal effect and be declared null and void.

10.	A permanent order restraining the First Defendant from any dealing or interference in any manner or form whatsoever with the Plaintiff as the duly appointed Deputy Chief Migration Officer – Compliance and Enforcement.

11.	Costs of the proceedings to be paid by the Second Defendant.

12.	Any other orders the Court sees fit.

39.     I will refuse the declarations and orders sought in paragraphs 1, 2 and 3 (which are based on the argument that the first defendant lacked authority due to holding office on an acting basis) and 8 (it was abandoned) and 10 (there is no good reason to grant such an order).

40.      I will generally grant the relief sought in paragraphs 4, 5, 6 and 7 (as making declarations in the terms sought will clarify and determine the illegality involved in the first defendant’s various decisions) and 9 (as such an order will determine that the appointment of another person to the plaintiff’s position was unlawful). 

41.     Though not all issues were decided in the plaintiff’s favour, he has largely succeeded at the trial and I see no reason that costs should not follow the event. So the costs sought under paragraph 11 will be awarded to the plaintiff. However, there are three defendants and I consider that the costs order should apply to each and all of them.

42.     As to paragraph 12, the claim is for “any other orders the Court sees fit”. In final submissions, Mr Koimo sought an order for reinstatement of the plaintiff to his old position. This is a conventional order to seek in a case of this nature. I remain puzzled as to why there was no direct and specific claim for such an order. Be that as it may, the claim has been made sufficiently under paragraph 12. It requires consideration under s 155(4) of the Constitution, which states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

43.    The National Court, having declared the primary rights and obligations of the parties, has power under s 155(4) to craft and mould the remedies it grants to meet the circumstances of the case and to do justice (Avia Aihi v The State (No 1) [1981] PNGLR 81, SCR No 2 of 1981 [1981] PNGLR 150, Ume More v UPNG [1985] PNGLR 401, Application Pursuant to s 155(4) by John Mua Nilkare (1997) SC536, Bill Skate and Peter O'Neill v Jeffrey Nape, Speaker of Parliament (2004) SC754, Gabriel Yer v Peter Yama (2009) SC996, Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156).

44.     I consider that it is proper and necessary to do justice in the circumstances of this case to order the plaintiff’s reinstatement. He should also be paid back-pay for any emoluments he has lost due to the unlawful actions of the first defendant. 

DECLARATIONS AND ORDERS

(1)	The relief sought in paragraphs 1, 2, 3, 8 and 10 of the originating summons is refused.

(2)	The relief sought in paragraphs 4, 5, 6, 7, 9, 11 and 12 of the originating summons is granted generally and accordingly it is:

(a)	declared, in respect of paragraph 4, that the decision of the then Chief Migration Officer, Solomon Kantha, of 30 September 2019, to appoint the plaintiff to the position of Deputy Chief Migration Officer, Compliance and Enforcement, was and remains lawful and effective; 

(b)	declared, in respect of paragraphs 5 and 6, that the first defendant acted unlawfully in February 2020 by determining that the four Deputy Chief Migration Officer positions were vacant and internally advertising the positions;

(c)	declared, in respect of paragraph 7, that the first defendant acted unlawfully by determining that the plaintiff’s contract of employment executed on 9 July 2018 was nullified by the organisational restructure of 2019;

(d)	ordered, in respect of paragraph 9, that the first defendant’s decision contained in Circular No 20/2020, appointing Dominic Ampa’oi to the position previously held by the plaintiff is illegal, of no legal effect and null and void;

(e)	ordered, in respect of paragraph 11, that the defendants shall pay the plaintiff’s costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed; and 

(f)	ordered, in respect of paragraph 12, that the first defendant or whoever is holding the position of Chief Migration Officer on a substantive or acting basis shall, within 14 days after the date of this order, reinstate the plaintiff to the position of Deputy Chief Migration Officer, Compliance and Enforcement, and further shall, within 28 days after the date of this order, ensure that the plaintiff is paid all emoluments lost by him on account of the actions of the first defendant in respect of the period from the date of his removal from his position to the date of payment of such lost emoluments. 

(3)	The proceedings shall return to check compliance with this Order on 30 September 2020 at 3.00 pm.

Judgment accordingly.
__________________________________________________________________
Kipes Law:  Lawyers for the Plaintiff		
Solicitor-General:  Lawyer for the Defendants