N8619

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 3 OF 2018

DANIEL FRANK CHARLIE
Plaintiff

V

SOLOMON KANTHA, CHIEF MIGRATION OFFICER
First Defendant

PAPUA NEW GUINEA
IMMIGRATION AND CITIZENSHIP SERVICE AUTHORITY
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2019: 29th November,
2020: 16th July, 18th September, 7th October, 4th, 6th November

CITIZENSHIP – automatic citizenship – whether a person born in the former Territory of Papua before Independence Day, who has lived the bulk of their life in Australia, is an automatic citizen of Papua New Guinea – Constitution, Part IV, citizenship.

HUMAN RIGHTS – remedies for actual infringement and for cases in which there is a reasonable probability of infringement – Constitution, s 57.

The plaintiff sought by originating summons a declaration that he is not an automatic citizen of Papua New Guinea and that the defendants unlawfully allowed him entry into Papua New Guinea. He also sought an order that he is an Australian citizen and has a right to permanent residence in Australia or that he is a “stateless person”. He was born in the former Territory of Papua in 1973 and moved to Australia in 1976. He was granted permanent residency in Australia in 1981 but was never granted Australian citizenship. He spent lengthy periods in prison on multiple occasions in his adult life and in 2008 had his absorbed person visa annulled by a ministerial decision, which was affirmed upon review by the Federal Court of Australia. After a further period in custody, the Government of the Commonwealth of Australia formed the view that the plaintiff ought to be removed from Australia. He was removed without his consent to Papua New Guinea in 2017, with the approval of the PNG Immigration and Citizenship Service Authority. He later left Papua New Guinea without approval for Australia where he was arrested and placed in immigration detention. It is believed that he remains in immigration detention in Australia. He does not want to return to Papua New Guinea. A trial of the originating summons was conducted. The defendants submitted that the plaintiff is an automatic citizen of Papua New Guinea and should be removed back to Papua New Guinea. 

Held:

(1)	The general rule of citizenship by virtue of s 65(1) of the Constitution is that a person born in Papua New Guinea before Independence Day, 16 September 1975, who has two grandparents who were born in the country or an adjacent area is an automatic citizen. However, there are a number of exceptions to the general rule, including s 65(4)(a), which provides that s65(1) does not apply to a person who “has a right (whether revocable or not) to permanent residence in Australia”.

(2)	The plaintiff was conferred a right to permanent residence in Australia in 1981. However, that was not sufficient to bring him within the exception created by s 65(4)(a) of the Constitution and to render s 65(1) of the Constitution inapplicable to him as the question of whether s 65(4) applies to a person has to be tested as at Independence Day. He became an automatic citizen of Papua New Guinea on Independence Day and nothing has happened since that date to alter his citizenship status.

(3)	Declared: that the plaintiff is an automatic citizen under s 65(1) of the Constitution and that the defendants did not unlawfully allow him entry into the country without his consent and that the National Court has no jurisdiction to determine his rights to Australian residency or citizenship. 

(4)	Declared, however: that if were to be brought to Papua New Guinea again without his consent, there is a reasonable probability of infringement of his right to freedom from harsh, oppressive and other proscribed acts under s 41 of the Constitution; and ordered: that the defendants shall resist any further attempts by the Commonwealth of Australia to remove the plaintiff into Papua New Guinea without his consent.  

Cases Cited:
Papua New Guinea Cases

The following cases are cited in the judgment.

Alois Kingsley Golu v Regett Marum (2013) N5104
Charlie v Kantha, OS (HR) 3 of 2018, 06.03.18, unreported
Ikowari & Australian Papuan Civil Rights Council Inc v Minister for Foreign Affairs & The State (2018) N7324
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Lowa v Akipe [1992] PNGLR 399
Meten v Mamu (2019) N7668
Morobe Provincial Government v John Kameku (2012) SC1164
Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
The State v Charlie (2018) SC1716
The State v Charlie (2018) SC1836

Overseas Cases

Charlie v Minister for Immigration [2008] FCA 1025

APPLICATION

This was an application for enforcement of human rights by which the plaintiff sought a declaration as to his citizenship status.

Counsel

E Wurr & J Kambao, for the Plaintiff 
C Kuson, for the Defendants 

6th November, 2020

1.      CANNINGS J: The plaintiff, Daniel Frank Charlie, seeks a declaration that he is not an automatic citizen of Papua New Guinea and that the defendants unlawfully allowed him entry into Papua New Guinea. He also seeks an order that he is an Australian citizen and has a right to permanent residence in Australia or that he is a “stateless person”. He also seeks any other orders that the Court deems fit. 

2.     The plaintiff was born on Daru Island, in the former Territory of Papua, on 6 October 1973. He went on a canoe, with his family, to Darnley Island, Torres Strait, Queensland, Australia, in 1976 and stayed there for a long time. 

3.      He was granted permanent residency in Australia in 1981 but has never been granted Australian citizenship. He spent lengthy periods in Australian prisons on multiple occasions in his adult life. In 2007 his Australian absorbed person visa was annulled by a ministerial decision. The plaintiff’s application for review of that decision was refused by the Federal Court of Australia (Charlie v Minister for Immigration [2008] FCA 1025). After a further period in custody, the Australian Government formed the view that the plaintiff ought to be removed from Australia. 

4.     In 2017 the plaintiff was removed without his consent to Papua New Guinea, with the approval of the PNG Immigration and Citizenship Service Authority (the first and second defendants). 

5.     He later left Papua New Guinea without approval and went to Darnley Island where he was arrested as being an unauthorised maritime arrival and placed in immigration detention. It is believed that he is presently in immigration detention in Melbourne, Victoria, Australia. He remains at risk of again being removed into Papua New Guinea. He does not want to come here. He says that he has no friends or means of support here. He regards himself as Australian and Australia as his home. 

6.     That is an abbreviated version of his life story but it is sufficient to set the scene for a determination of the critical issue of whether he is a Papua New Guinea citizen. The question of whether his removal into Papua New Guinea in 2017 was unlawful, and the related question of whether he ought to be removed into Papua New Guinea again will also be considered. 

ISSUES 

1.	Is the plaintiff a Papua New Guinea citizen?

2.	Was the plaintiff’s removal into Papua New Guinea in 2017 unlawful?

3.	Does the plaintiff have a right to permanent residence or citizenship in Australia? 

4.	What orders should the Court make?

1 	IS THE PLAINTIFF A PAPUA NEW GUINEA CITIZEN?

7.     The citizenship status of a person born in Papua New Guinea before Independence Day, 16 September 1975, is determined by s 65 (automatic citizenship on Independence Day) of the Constitution, which states:

(1)	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.

(2)	A person born outside the country before Independence Day who has two grand-parents born in the country is a citizen as from Independence Day if—

(a)	within one year after Independence Day or such longer period as the Minister responsible for citizenship matters allows in a particular case, application is made by him or on his behalf for registration as a citizen; and
(b)	he renounces any other citizenship and makes the Declaration of Loyalty—

(i)	if he has not reached the age of 19 years—in accordance with Section 64(2) (dual citizenship); or
(ii)	if he has reached the age of 19 years—at or before the time	when the application is made.

(3)	In Subsection (1), "adjacent area" means an area that immediately before Independence Day constituted—

(a)	the Solomon Islands; or
(b)	the Province of the Republic of Indonesia known as Irian Jaya; or
(c)	the islands in Torres Straits annexed to the then Colony of Queensland under Letters Patent of the United Kingdom of Great Britain and Ireland bearing date the 10th day of October in the forty-second year of the reign of Her Majesty Queen Victoria (that is, 1878),

not forming on Independence Day part of the area of Papua New Guinea.

(4)	Subsections (1) and (2) do not apply to a person who—

(a)	has a right (whether revocable or not) to permanent residence in Australia; or
(b)	is a naturalized Australian citizen; or
(c)	is registered as an Australian citizen under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; or
(d)	is a citizen of a country other than Australia,

unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with Subsection (5).

(5)	A person to whom Subsection (4) applies may, within the period of two months after Independence Day and in such manner as may be prescribed by or under an Act of the Parliament, renounce his right to permanent residence in Australia or his status as an Australian citizen or as a citizen of another country and make the Declaration of Loyalty.

(6)	Where in his opinion it is just to do so, the Minister responsible for citizenship matters may in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), extend the period of two months referred to in Subsection (4), but unless the Minister is satisfied that the applicant—

(a)	assumed in error that he was a citizen; or
(b)	did not know that he was not a citizen; or
(c)	had no reasonable opportunity or not enough time to determine his status,

the period may not be extended beyond a further two months.

8.     The general rule of citizenship by virtue of s 65(1) is that a person born in Papua New Guinea before Independence Day who has two grandparents who were born in the country or an adjacent area is an automatic citizen. 

9.     The intention of s 65 is to set out who was a Papua New Guinea citizen at Independence. Certain persons were to acquire ‘automatic’ citizenship. Their method of acquisition of citizenship is distinguished from persons who acquire  citizenship as a dual citizen under s 65 (dual citizenship) or by descent or marriage under s 66 (citizenship by descent and marriage) or by the process of naturalisation under s 67 (citizenship by naturalisation). 

10.     There is sufficient evidence that the plaintiff:

•	was born in Papua New Guinea; and 
•	had two grandparents born in Papua New Guinea.

11.     The plaintiff therefore appears, as contended by the defendants, to fall within s 65(1). However, there are a number of exceptions to the general rule, including s 65(4)(a), which provides that s 65(1) does not apply to a person who “has a right (whether revocable or not) to permanent residence in Australia”.

12.      There is sufficient evidence, in a letter dated 4 September 1981 from N A McCann, Regional Director, addressed to the plaintiff’s father, Tony Charlie, informing him that “your application for permanent residence in Australia for you and your family has now been approved” that the plaintiff was conferred a right to permanent residence in Australia in 1981 (annexure DM3 to the affidavit of Dino Mas, Acting Deputy Chief Migration Officer, Borders and Compliance Division, PNG Immigration and Citizenship Authority, exhibit P2). 

13.    The question arises whether that was sufficient to bring him within the exception created by s 65(4)(a) of the Constitution and to render s 65(1) of the Constitution inapplicable to him. In other words, did the plaintiff cease to be a Papua New Guinea citizen on 4 September 1981? I answer that question in the negative. I consider that the circumstances set out in s 65(4) have to be tested in relation to a person as at Independence Day. This is fairly clear from the wording of s 65(5), which allowed a person to whom s 65(4) applies two months after Independence Day to “renounce his right to permanent residence in Australia or his status as an Australian citizen or as a citizen of another country and make the Declaration of Loyalty”.

14.     On Independence Day the plaintiff had no right to permanent residence in Australia and none of the other circumstances in s 65(4) applied to him. Therefore s 65(4) does not apply.

15.       I can identify no other provision in the Constitution that would remove the plaintiff from the scope of s 65(1). His being born before Independence within the former Territory of Papua evidently provides a gateway to eligibility for Australian citizenship, but does not make him a citizen of Australia (Ikowari & Australian Papuan Civil Rights Council Inc v Minister for Foreign Affairs & The State (2018) N7324). He has no “real foreign citizenship” for the purposes of s 64 of the Constitution. It follows that the plaintiff is, and always has been, an automatic citizen of Papua New Guinea under s 65(1) of the Constitution. 

2	WAS THE PLAINTIFF’S REMOVAL INTO PAPUA NEW GUINEA IN 2017 UNLAWFUL?

16.       In 2017 the plaintiff was brought to Papua New Guinea without his consent by the Australian Government and with the consent and cooperation of the defendants. He was left here. He lasted a year before finding his way back to Darnley Island. The evidence suggests that his time here was disastrous. He had no means of support, no friends, no relatives. He does not speak Tok Pisin or any other local language. He spent many weeks in a hotel in Port Moresby and had his meals and accommodation paid by the second defendant. That was in compliance with an interim order of Tamate J in the National Court in these proceedings (Charlie v Kantha, OS (HR) 3 of 2018, 06.03.18, unreported), which was subsequently stayed by Batari J in the Supreme Court (The State v Charlie (2018) SC1716) before a final determination by the Supreme Court (The State v Charlie (2018) SC1836). However, he got into trouble with the hotel and he was evicted.

17.     As unsatisfactory as it was for the plaintiff, and for the defendants, I am not persuaded that it was, at that time, unlawful for him to be brought to Papua New Guinea against his will and to be left here. He was at the time, and still is, a Papua New Guinea citizen, so there was no infringement of any law involved in bringing him here in 2017. 

3	DOES THE PLAINTIFF HAVE A RIGHT TO PERMANENT RESIDENCE OR CITIZENSHIP IN AUSTRALIA? 

18.     The plaintiff asks for a declaration that he has a right to permanent residence in Australia or that he is an Australian citizen or that he is “stateless”. This Court has no jurisdiction to grant such declarations, except perhaps the last. It is clear that the plaintiff is not stateless in the sense that he does have citizenship of Papua New Guinea. As for whether he has a right to permanent residence in Australia or whether he is an Australian citizen, it is fairly clear that he has neither. However, it is not appropriate for this Court to purport to give a formal opinion on such issues. 

4 	WHAT ORDERS SHOULD THE COURT MAKE?

19.     The primary relief sought by the plaintiff – that he is not a citizen of Papua New Guinea, that it was unlawful for him to be brought here against his will and that he is an Australian citizen – will be refused. However, he has also asked for other orders that the Court deems fit. This request must be considered in the light of s 57 (enforcement of guaranteed rights and freedoms) of the Constitution. The National Court has the power and duty under s 57 to protect and enforce the basic rights; and that power and duty can be exercised either on its own initiative or on application by an interested party. I refer in particular to ss 57(1), (3) and (5) (enforcement of guaranteed rights and freedoms) of the Constitution, which state:

(1)	A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority. …

(3)	A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force). …

(5)	Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement. …

20.      I focus my attention on what should happen if another request is made by Australia to Papua New Guinea, to accept the plaintiff into Papua New Guinea. Will any infringement of human rights occur if that request is acceded to? I have formed the view that an infringement of the plaintiff’s human rights will occur. If he is brought here again, and left to fend for himself in what to him is a foreign land, with no immediate means of support, and forced to live away from his immediate family, who the evidence shows are all resident in Australia, there is a reasonable probability that the plaintiff will be treated harshly and oppressively and in other ways proscribed by s 41 of the Constitution. 

21.       Section 41 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.

22.      Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598). 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:

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

23.     Under s 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by s 41(1) is on the party alleging it. 

24.     Section 41 is in Division III.3 (basic rights) of the Constitution, surrounded by provisions that very clearly confer the following rights and freedoms on all persons (or in some cases only citizens) in Papua New Guinea:  

•	right to freedom (s 32);
•	right to life (s 35);
•	freedom from inhuman treatment (s 36);
•	protection of the law (s 37);
•	liberty of the person (s 42);
•	freedom from forced labour (s 43);
•	freedom from arbitrary search and entry (s 44);
•	freedom of conscience, thought and religion (s 45);
•	freedom of expression (s 46);
•	freedom of assembly and association (s 47);
•	freedom of employment (s 48);
•	right to privacy (s 49);
•	right to vote and stand for public office (s 50);
•	right to freedom of information (s 51);
•	right to freedom of movement (s 52);
•	protection from unjust deprivation of property (s 53);  
•	equality of citizens (s 55).

25.     In Meten v Mamu (2019) N7668 I confirmed my view that s 41 creates an enforceable right or freedom in the same way as do the other provisions of Division III.3 of the Constitution. 

26.      I follow that view here. I find that it has been proven that there is a reasonable probability that the plaintiff’s rights under s 41 will be infringed if he is brought to Papua New Guinea, albeit under a valid law, without his consent. Furthermore, in my view, it is not in the best interests of Papua New Guinea if he is brought here. Though it is his country of citizenship, Papua New Guinea does not have the resources to manage a person such as the plaintiff. He has been raised in Australia and in my view Australia should accept its moral responsibility to look after a person in the plaintiff’s position.

27.     I will invoke ss 57(1), (3) and (5) of the Constitution to order the defendants to resist, decline and refuse any further attempts by the Commonwealth of Australia or any other country to remove the plaintiff into Papua New Guinea without his consent. 

REMARKS 

28.     Though none of the parties raised the issue of referring the constitutional questions involved in determining this case to the Supreme Court under s 18(2) of the Constitution, I considered that option. Section 18 (original interpretative jurisdiction of the Supreme Court) states:

(1)	Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2)	Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

29.      I considered referring such questions to the Supreme Court on my own motion. I decided not to do so as the obligation of the National Court to refer questions of constitutional application or interpretation to the Supreme Court does not arise if the answers to such questions are straightforward and require little or no interpretation (Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60, Lowa v Akipe [1992] PNGLR 399, Alois Kingsley Golu v Regett Marum (2013) N5104). Though the questions raised by the plaintiff have been interesting and thought-provoking, the answers have been straightforward. It was unnecessary to refer any questions to the Supreme Court. 

ORDER

(1)	The application in paragraph 1 of the originating summons for a declaration that the plaintiff is not an automatic citizen of Papua New Guinea as per s 65(1) of the Constitution is refused.

(2)	The application in paragraph 2 of the originating summons for a declaration that the defendants unlawfully allowed the plaintiff entry to Papua New Guinea in 2017, without his consent, is refused. 

(3)	The application in paragraph 3 of the originating summons for a declaration that the plaintiff has a right to permanent residence in Australia and is an Australian citizen and is a Stateless person is refused. 

(4)	The application in paragraph 4 of the originating summons for costs is refused. 

(5)	The application in paragraph 5 of the originating summons for any other order the Court deems fit is granted and accordingly:

(a)	it is declared, pursuant to s 57(5) of the Constitution that if the defendants were to again allow the plaintiff entry to Papua New Guinea without his consent, there is a reasonable probability of infringement of his right of protection against harsh or oppressive or other proscribed acts under s 41(1) of the Constitution; and 

(b)	it is ordered, pursuant to s 57(3) of the Constitution, that the defendants shall resist, decline and refuse any further attempts by the Commonwealth of Australia or any other country to remove the plaintiff into Papua New Guinea without his consent. 

(6)	The parties shall bear their own costs of the proceedings. 

(7)	The file is closed.
_______________________________________________________________
Public Solicitor: Lawyer for the Plaintiff 	
Solicitor-General: Lawyer for the Defendants