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Uddin v Kantha [2020] PGNC 83; N8267 (16 April 2020)

N8267

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 228 OF 2019

HELAL UDDIN
Applicant

V

SOLOMON KANTHA, CHIEF MIGRATION OFFICER
First Respondent

PNG IMMIGRATION AND CITIZENSHIP SERVICE AUTHORITY
Second Respondent

PETRUS THOMAS, MINISTER FOR IMMIGRATION
& BORDER SECURITY
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani : Cannings J
2019;20, 23 December
2020;8, 28 January, 20 February, 16 April

HUMAN RIGHTS –immigration – asylum seekers –illegal entrants to the country – rights of non-citizens after refusal of application for refugee status–marriage to a PNG citizen – principles of love and humanity – Constitution: right to life (s 35) – full protection of the law (s 37) – freedom of conscience, thought and religion (s 45) – protection against harsh, oppressive and other proscribed acts (s 41).

The applicant is a Bangladeshi man who was transferred from Australia to Papua New Guinea in 2013 and held at the Manus Island Regional Processing Centre. When the centre closed in 2016 he formed a relationship with a local woman. In 2017 they married and had a child and lived in Manus. In early 2018 he was deported to Bangladesh but in late 2018 he returned to PNG illegally and resumed life with his wife and child. In 2019 he was arrested and detained and charged with an immigration offence, convicted and fined. He paid the fine but the Minister for Immigration had issued,under the Migration Act, another removal order against him and directed that he continue to be detained in custody while arrangements were made for his deportation. In July 2019 he filed an application for enforcement of human rights and an interim injunction was granted, restraining his deportation. A trial of his human rights application was conducted. He claimed that his treatment by the respondents (officers and agencies of the PNG Government) infringed four of his human rights under the Constitution: the right to life (s 35), full protection of the law (s 37), freedom of conscience, thought and religion (s 45) and protection against harsh, oppressive and other proscribed acts (s 41). He sought order squashing the 2019 removal order and the direction that he be detained in custody, releasing him from detention and allowing him to remain in PNG.

Held:

(1) No action taken by the respondents concerning the applicant denied him his right to life or the full protection of the law or his freedom of conscience, thought or religion. No infringement of human rights under ss 35, 37 or 45 of the Constitution was proven.

(2) Though the applicant’s presence in PNG in the period after his illegal entry in November 2018 was unlawful under the Migration Act, giving rise to an ostensibly lawful exercise of power by the Minister under ss 12 and 13 of that Act to order his removal from the country and his detention in custody, such powers must nonetheless be exercised in a way that does not infringe on the right of all persons to be protected against acts that are harsh or oppressive or otherwise proscribed under s 41(1) of the Constitution.

(3) The burden of showing that acts are, under s 41(1), proscribed acts rests on the party alleging it and may be discharged on the balance of probabilities.

(4) That burden was discharged as it was shown that the respondents’ treatment of the applicant, especially his proposed deportation, was harsh, oppressive and not warranted by the requirements of his particular case, as no or insufficient regard was given to his particular circumstances in that: (a) he was forcibly transferred in 2013 from Australia to PNG without any choice; (b)he was unlawfully detained in a processing centre in conditions akin to a prison from 2013 to 2016 for two years, six months; (c) he has married a PNG citizen and is the biological father of a child who is a PNG citizen; (d) no investigation has been undertaken into the question of whether he is a fit and proper person to remain in PNG and there is no evidence that he has committed any offence other than illegal entry under the Migration Act; (e) he has not been given a right to be heard on the question of whether he ought to be deported, nor has he been accorded the opportunity to say why he wishes to remain in PNG; and furthermore the interests of other persons have not been considered, viz (f) the wishes of the applicant’s wife, a PNG citizen, who has professed her love for the applicant and her desire to have him in her and her child’s life; and (g) the interests of the applicant’s child, now three years old, who if the applicant is deported will be denied the opportunity to be raised and nurtured with the love, support and physical presence of his biological father.

(5) Declared and ordered under ss 57(3) and 155(4) of the Constitution that the acts of the respondents involved in the treatment of the applicant have been and will continue to be if not restrained unlawful acts, under ss 41(1)(a) and (b) of the Constitution; that the decisions the applicant be removed from the country and detained in custody and the instruments reflecting those decisions issued under the Migration Act are null and void and are quashed; that the applicant shall be issued with an entry permit under s 5 of the Migration Act authorising his residency in the country for a period of three years.

Cases cited

The following cases are cited in the judgment:

Abaina Emos & 18 Ors v Dr Sebastian Bagrie, Chairman, Governing Council, Madang Teachers College (2020) N8260
Agnes Millia Okona-Meten v Leslie B Mamu (2019) N7668
Alleged Detention Manus Province, of persons seeking Asylum in Australia (2014) N5529
Bank of Papua New Guinea v Muteng Basa [1992] PNGLR 271
Boson Wilson & 3 Ors v Divine Word University (2018) N7613
Constitutional Reference No 1 of 1977 Re Non-compliance with Section 42(2) of the Constitution [1977] PNGLR 362
Curran v The State [1994] PNGLR 230
David Simon v Michael Koisen (2018) N7075
Department of Works v International Construction (PNG) Ltd (2008) N5896
James Geama v OTML Shares In Success Ltd (2011) N4269
Jeanette Kornet v Dominic Sumala (2020) N8260
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Joyce Avosa v Rene Motril (2014) N5732
Kamit v Aus-PNG Research & Resources Impex Ltd [2007] 1 PNGLR 222
Max Umbu v Steamships Ltd (2004) N2738
Morobe Provincial Government v John Kameku [2012] 1 PNGLR 41
Namah v Pato, National Executive Council and the State (2016) SC1497
Nowra No 8 Pty Ltd v Kala Swokin [1993] PNGLR 498
Paru v Kotigama & Bmobile-Vodafone (2015) N6089
Petrus & Gawi v Telikom PNG Ltd (2008) N3373
Raz v Matane [1985] PNGLR 329
Re Human Rights of prisoners sentenced to death (2017) N6939
Re Ricky Yanepa [1988-89] PNGLR 166
SC Ref No 1 of 1993 Re Section 365 of the Income Tax Act (1995) SC482
Sir Michael Somare v Theo Zurenuoc (2016) N6308
Stewart Yareng v PNG Maritime College (2019) N8152
Tammy Tomscoll v Rabura Mataio, Chief Migration Officer (2016) N6200
Tarere v ANZ Bank [1988] PNGLR 201
The State v Mana Turi [1986] PNGLR 221
The State v The Transferees (2014) SC1348
The State v Transferees (2015) SC1451
University of Papua New Guinea v Uma More [1985] PNGLR 48

TRIAL

This was an application for enforcement of human rights.

E Wurr for the plaintiff
T Mileng for the 4^threspondent

16^th April, 2020

1. CANNINGS J: The applicant, Helal Uddin, is a Bangladeshi man who was transferred from Australia to Papua New Guinea in 2013 and detained at the Manus Island Regional Processing Centre. When the centre closed in 2016 he formed a relationship with a local woman. They married and had a child. He is presently the subject of a removal order issued by the Minister for Immigration. He has been in immigration detention for more than a year. Only an interim injunction granted by this Court, after commencement of these proceedings as an application for enforcement of human rights,has prevented his removal from the country.
   
2. He claims that his treatment by the respondents (officers and agencies of the PNG Government) involves infringement of four of his human rights under the PNG Constitution: the right to life (s 35), full protection of the law (s 37), freedom of conscience, thought and religion (s 45) and protection against harsh, oppressive and other proscribed acts (s 41). He seeks an order releasing him from detention and allowing him to remain in PNG. A trial has been conducted of his application. The following issues arise:
   
1. What are the facts?
   
2. Has the applicant’s right to life under s 35 of the Constitution been infringed?
   
3. Has the applicant’s right to full protection of the law under s 37 of the Constitution been infringed?
   
4. Has the applicant’s right to freedom of conscience, thought and religion under s 45 of the Constitution been infringed?
   
5. Has the applicant’s right of protection against harsh, oppressive or other proscribed acts under s 41 of the Constitution been infringed?
   
6. What orders should the Court make?
   

1 WHAT ARE THE FACTS?

3. Piecing together the applicant’s circumstances has not been a straightforward exercise. I have to make findings of fact based on limited evidence due to the vagueness of some details provided by the applicant, the paucity of documentation of his case and the inconsistent approach to these proceedings taken by the respondents.
   
4. The first, second and third respondents are, in effect, the PNG Immigration and Citizenship Service Authority (the ICA), a governmental body established by the Immigration and Citizenship Service Act 2010, which deals with a wide range of immigration and citizenship matters, as is evident from the functions conferred on it by s 5(1):
   

The functions of the Authority are: —

(a) to perform the functions and exercise the powers conferred on an authorized person or an officer under the Migration Act (Chapter 16) or the Passports Act (Chapter 17); and

(b) to assist the Ministers responsible for the administration of the Migration Act (Chapter 16) and Passports Act (Chapter 17) in the performance of their functions under those Acts respectively; and

(c) to assist the Minister responsible for citizenship in the performance of his functions under Part IV of the Constitution and the Citizenship Act (Chapter 12); and

(d) to collect fees, penalties and other revenue authorised under the Migration Act (Chapter 16), Passports Act (Chapter 17) and Citizenship Act (Chapter 12);

(e) to administer the APEC Business Travel Card Scheme under the Migration Act (Chapter 16); and

(f) to collect, monitor, secure and maintain information and technological systems to enable fully integrated and supported immigration, citizenship and passport operations; and

(g) undertake development of legislation and policy to support the operations of the Authority and the effective administration of the Migration Act (Chapter 16), Passports Act (Chapter 17) and the Citizenship Act (Chapter 12); and

(h) advise the Minister on policy issues which relate to this Act and the effective administration of the Migration Act (Chapter 16), Passports Act (Chapter 17) and the Citizenship Act (Chapter 12); and

(i) exercise and carry out such functions and powers and perform all duties which under any other written law are or may be or become vested in the Authority or are delegated to the Authority by this Act or any other law; and

(j) carry out such other duties as are necessary, supplementary, incidental to or consequential to achieve the objectives or the discharge of its functions under this Act.

5. The ICA is the body that should have been driving the National Government’s position on this case, which involves the human rights of a man who was one amongst more than a thousand men, known generally as asylum seekers, brought without seeking their consent from Australia to PNG in the period from 2013 to 2016 and held at the Manus Island Regional Processing Centre. The way in which Australia and PNG dealt with those men, and how those men continue to be dealt with, has attracted a great deal of national and international attention. It was reasonably expected that the National Government and the ICA would take a clear position on this case and assist the Court in dealing with it so that all relevant facts and information were made available.
   
6. That did not happen. A notice of intention to defend was filed on behalf of the first, second and third respondents by in-house counselfor the ICA. They were represented in the pre-trial hearings. But once the trial commenced they made no appearance and offered no evidence and made no submissions. It was only through the good offices of Mr Mileng, of the Office of Solicitor-General, counsel for the State, that the position of the ICA, and therefore all the respondents, became known.
   
7. Despite the shortcomings of the evidence, most of what the applicant has deposed to has not been contested, and I make findings of fact based on the best evidence available, which is found in three affidavits that have been admitted into evidence:
   

• affidavit by the applicant, sworn 28 August 2019, filed 29 August 2019, exhibit P1;
  
• affidavit by the applicant’s wife, Alice Michael, sworn 26 December 2019, filed 7 January 2020, exhibit P2;
  
• affidavit by the Deputy Chief Migration Officer, Compliance Division, ICA, Stanis Hulahau, sworn 19 November 2019, filed 21 November 2019, exhibit D1.
  

8. The applicant was born in 1990 in Bangladesh. He appears to have found his way to Christmas Island, off Australia, in the middle of 2013, evidently to claim asylum.
   

2013

9. He was in October 2013 forcibly transferred to Papua New Guinea pursuant to memoranda of agreement between the Governments of Papua New Guinea and Australia executed in mid-2012.
   
10. He was held at the Manus Island Regional Processing Centre from October 2013. As I pointed out in Re Human Rights of prisoners sentenced to death (2017) N6939 the accommodation of transferees on Manus was a very controversial issue. In February 2013, in Namah v Pato (2013) N4990, I refused an application by the Leader of the Opposition, Hon Belden Namah MP, for an interim injunction to restrain the National Government receiving any further transferees from Australia. However, I commented that the plaintiff had raised significant constitutional and human rights issues:
    

Mr Henao [for the plaintiff, the Honourable Belden Namah MP, Leader of the Opposition] submits that the asylum seekers have been deprived of their personal liberty – their movement has not been merely restricted – but not in any of the circumstances permitted by Sections 42(1)(a) to (i). The only one of those circumstances that can arguably come close to describing the situation at Lombrum is Section 42(1)(g): they have been deprived of their personal liberty for the purpose of preventing the unlawful entry of persons into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of persons from Papua New Guinea, or the taking of proceedings for any of those purposes. That is not an accurate description, however, as the asylum seekers have not been deprived of their personal liberty for the purpose of preventing anyone’s unlawful entry into Papua New Guinea. Mr Henao submits that the asylum seekers had no say in their coming to Papua New Guinea. They have been forced here.

I find this argument based on Section 42(1) of the Constitution at this preliminary stage of the proceedings, and bearing in mind that the argument has been advanced and considered without the benefit of full and researched submissions from both sides, to be rather impressive. There are serious allegations here of unconstitutionality and ongoing breaches of human rights affecting a large number of people (the Lombrum centre’s Administrator Mataio Rabura ISO deposes in an affidavit that on 13 February 2013 there were 276 asylum seekers at the centre). There are also related and serious questions that would seem likely to arise, if this matter goes to trial, about whether the circumstances in which the asylum seekers are being held amounts to a breach of Papua New Guinea’s obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, to which it is a signatory, albeit subject to various reservations (Marthinus Kambu v Sir Pita Lus (2010) N4437). I consider that the Section 42(1) argument involves serious questions of law and that the plaintiff has placed before the court a serious, not merely speculative, case.

2014

11. In mid-February 2014 – at which time the applicant is presumed to have been present – there was a riot at the Centre. One of the transferees, a Kurdish Iranian man, Reza Barati, died. There was a crisis. I waited for one of the transferees or an organisation acting on their behalf to make an application for enforcement of human rights. However, I decided not to wait any longer.
    
12. Later that month I decided to use the own initiative power in s 57(1) of the Constitution to commence proceedings to conduct an inquiry, HROI No 1 of 2014, into whether the transferees (also known as ‘asylum seekers) had any human rights; and if they did, whether their rights were being infringed.
    
13. By mid-March 2014 I was on the ground in Manus, conducting court proceedings, hearing evidence from the transferees and inspecting the conditions in which they were accommodated.
    
14. I take judicial notice of my observation, recorded in the proceedings conducted at Lorengau Courthouse in March 2014, that conditions inside the Manus Island Regional Processing Centre were akin to those of a prison. The facilities were of a higher standard than any correctional institution in PNG I had inspected. However, the conditions were prison-like as the transferees were deprived of their personal liberty. They could not leave the boundaries of the Centre except in special circumstances. Their activities within the Centre were controlled by the authorities. They were subject to the same sort of rules and regulations under which prisons are governed.
    
15. At the outset I had announced that the purposes of the proceedings were threefold, to determine: (1) What human rights the transferees had, if any? (2) Whether those rights, if any, were being, administered to them? (3) If not, what orders and declarations should the Court make to protect and enforce those rights? (Alleged Detention Manus Province, of persons seeking Asylum in Australia (2014) N5529).
    
16. However, I was not allowed to determine any of those issues. An ex parte interim stay order was granted in Waigani by Makail J, sitting as a single Judge of the Supreme Court, on the last day of the hearings in Manus. His Honour later extended the stay after an inter partes hearing (The State v The Transferees (2014) SC1348).
    

2015

17. That proved to be the end of my inquiry as the final decision of the Supreme Court, delivered in August 2015, granted a permanent stay of the proceedings: The State v Transferees (2015) SC1451 (Sakora J, Gavara-Nanu J, Ipang J).
    
18. While those legal proceedings were continuing in the period from 2013 to 2015, the applicant was accommodated at the Centre.
    

2016

19. During the period of his detention he had made an application under the Migration Act to be granted status as a refugee. His application was refused by the Minister for Foreign Affairs and Immigration on 29 January 2016 in the following terms:
    

Dear Mr Uddin

NOTICE OF REFUGEE DETERMINATION

AND DIRECTION TO LEAVE THE COUNTRY

This is to notify you of the final decision with regards to your application for refugee determination pursuant to s 15A of the Migration Act 1978 (the Act).

After careful consideration of all the information you have provided, I am satisfied that you do not meet the relevant criteria to be recognised as a refugee under the laws of the Independent State of Papua New Guinea.

I am not satisfied that you meet s 14(1) of the Migration Regulation 1979 (the Regulation).

The reasons for this decision in accordance with s 15(2) of the Regulation are attached to this letter [note: not attached in the document admitted into evidence].

Please note under s 15(4) of the Regulation the Minister must not reopen a decision for further consideration after his decision has been made.

By virtue of this decision, the exemption under s 20 of the Act which permitted you to remain in the country without an entry permit has ceased. You are therefore now unlawfully in Papua New Guinea. I have signed orders for your removal from the country and your detention until you depart, pursuant to ss 12 and 13 of the Act. Copies of these orders are attached to this notice [note: not attached in the document admitted into evidence].

You are therefore required to depart the country as soon as possible to your country of citizenship or other country which will accept you; however I encourage you to consider the option of voluntary departure.

The removal and detention order I have signed explicitly allow for these to be suspended should you elect to take up this option. Officers of the Immigration and Citizenship Service Authority will be available to discuss voluntary return with you and to assist.

Should you fail to depart voluntarily, removal action will be enforced. Please keep a copy of this letter in a safe place for future purposes.

Yours sincerely

Rimbink Pato OBE LLB MP

Minister for Foreign Affairs & Immigration

29 January 2016

20. Despite the indications in the Minister’s notice that the applicant would be imminently removed from the country, this did not happen until two years later, in 2018.
    
21. In April 2016 the Supreme Court ruled that the detention of the transferees at the Manus Island Regional Processing Centre was a violation of their right to personal liberty under s 42 of the Constitution and that the arrangements made between the governments of Papua New Guinea and Australia were unconstitutional (Namah v Pato, National Executive Council and the State (2016) SC1497: Salika DCJ, Kandakasi J, Kariko J, Sawong J and Higgins J).
    
22. The practical effect of the April 2016 Supreme Court decision is that the applicant and hundreds of other men who had been held at the Processing Centre were allowed greater freedom of movement. The place ceased to be a detention centre and became more of an accommodation facility.
    
23. The applicant was thus detained at the Processing Centre for a period of two years, six months (from October 2013 to April 2016) in prison-like conditions.
    
24. It was in the second half of 2016 that the applicant met the young woman, then 20 years of age, Alice Michael, of Mal village, Western Island, Manus Province who would later become his wife. They had a sexual relationship and Alice became pregnant.
    

2017

25. The applicant and Alice Michael married on 1 March 2017. A certificate of marriage bearing that date, certifying that “Helal Uddin and Alice Michael were united in Marriage under Manus Customary Marriage Practices”, was issued by the Village Court and Land Mediation Secretariat at Lorengau. Alice deposes to these events in her affidavit in these terms:
    

I met the applicant when he was held as a transferee at Manus Island by the Australian and PNG Governments. We met in 2016, fell in love and got married by custom before a Village Court Magistrate on 1 March 2017.

26. On 19 March 2017 Alice gave birth at Mal Health Centre to a male child, whose name has been registered under the Civil Registration Actas“Mohamed Ali Helal”. Alice is registered as the mother, with her occupation shown as “self-employed”, and the applicant is registered as the father, with his occupation shown as “businessman”.
    
27. It is from that period in early 2017 to late 2018 that the evidence is scanty. It appears that after their marriage and the birth of their child, the applicant and Alice lived together and started a retail business at Ward 6, Lorengau. Things apparently went smoothly for the rest of 2017.
    

2018

28. In early 2018, the PNG Immigration and Citizenship Service Authority (the ICA) implemented the removal order referred to in the letter from Minister Pato of 29 January 2016. The applicant was deported to Bangladesh.
    
29. According to his evidence, he made several attempts to return to PNG by lawful means in 2018, including applying for a dependency visa. To no avail. He deposes that all his applications were rejected. As he really wanted to come back to PNG to be with his wife and son he spent US$13,000.00 on a smuggler to transport him to PNG. He went from Bangladesh to Thailand and then by boat to Jayapura, Indonesia. He entered PNG at Vanimo, West Sepik Province in November 2018 and from there went back to Manus.
    
30. In late 2018 he resumed life in Lorengau, as he had done in the period from early 2017 to early 2018, living with his wife and child and running their retail store. It was registered under the Business Names Act as Mohali Trading. The Internal Revenue Commission issued the applicant a taxpayer registration certificate in his own name (Mr Helal Uddin), showing the nature of his business as “partner in a partnership”. A similar certificate was issued to his wife (in the name of Mrs Alice Uddin).
    

2019

31. For a few months from late 2018 to early 2019 things,again, apparently went smoothly for the applicant and his wife. But in March 2019 he was arrested by the police in circumstances that are unclear. There is no clear evidence as to why, how, where or when he was arrested. He was detained in custody and this was reported in The National newspaper on 18 March 2019 under the headline “Bangladesh man arrested for giving false info”. This caught the attention of the ICA which then, according to the evidence of Deputy Chief Migration Officer Mr Hulahau, took steps to have the applicant charged with an immigration offence and to have a removal order issued against him and be further detained. Those processes were effected on 9 April 2019 by the following ministerial instruments issued under the Migration Act:
    

REMOVAL ORDER

I, PETRUS THOMAS, Minister for Immigration and Border Security, by virtue of the powers conferred by s 12(1) of the Migration Act(Chapter 16) and all other powers me enabling, hereby order the immediate removal, from the country, of HELAL UDDIN of Bangladesh, whose presence in the country is unlawful.

By virtue of s 3 of the Migration Act I direct that this order is fully suspended in law where the subject person has declared in writing that they wish to depart Papua New Guinea voluntarily, for such period as they are physically travelling out of the country. This order fully resumes in law where the subject person subsequently declines to depart Papua New Guinea voluntarily.

Dated this 9^th day of April 2019

[Signed]

Minister for Immigration & Border Security

DIRECTIONS AS TO CUSTODY

I, PETRUS THOMAS, Minister for Immigration and Border Security, by virtue of the powers conferred by s 13 of the Migration Act (Chapter 16) and all other powers me enabling, hereby direct that HELAL UDDIN of Bangladesh, against whom a Removal Order has been made under s 12 (1) of the Migration Act (Chapter 16), shall be kept in the custody of a member of the Police Force or an Officer-In-Charge of a Corrective Institution or an Immigration Detention Centre pending his removal from the country an until he is placed on a conveyance for removal from the Country.

By virtue of s 12(3) of the Migration Act,the Removal Order relating to the subject may be fully suspended. Where that has occurred, this Detention Order is therefore also fully suspended for that period. This Detention Order resumes once the Removal Order fully resumes in law.

Dated this 9^th day of April 2019

[Signed]

Minister for Immigration & Border Security

32. It appears that the applicant was in custody on Manus from late March to mid-May 2019 when he was transferred to Bomana Correctional Institution, National Capital District.
    
33. During his time at Bomana he changed his religion. He was baptised into the Seventh-Day Adventist Church in a ceremony at the prison on 29 June 2019. He was issued with a baptismal certificate, verified in the following document issued under the letterhead of Bomana SDA Prison Church:
    

NAME : HELAL UDDIN: AGE 29 YEARS OLD

VILLAGE : JOATPOUR

COUNTRY : BANGLADESH

MUSLIM FAITH CONVERTED TO SEVENTH-DAY ADVENTIST CHURCH

BAPTISED AT BOMANA JAIL ON THE 29^TH JUNE 2019

RECEIVED INTO THE BOMANA SEVENTH-DAY ADVENTIST CHURCH OF THE CENTRAL PAPUA CONFERENCE

HE WAS BROUGHT IN FOR SAFETY REASONS BY IMMIGRATION OFFICERS OF PAPUA NEW GUINEA:

ADMITTED TO RECEPTION & DISCHARGE OFFICE ON 15 MAY 2019 FROM MANUS ISLAND.

[signed]

MR ROGER ATIVE

CHURCH ELDER

BOMANA SDA CHURCH

34. The applicant remained in custody at Bomana until being brought to the Boroko Police Lock-up in mid-July 2019 where he was detained for three days while the criminal proceedings against him were conducted. He was on 17 July 2019 convicted by Waigani District Court of one count of unlawfully entering the country, an offence under s 16(1)(a) of the Migration Act, and fined K2,000.00, subject to a default penalty of three months’ imprisonment. He paid the fine immediately and a certificate for his discharge from custody was issued on 19 July 2019 by the District Court.
    
35. However, the ICA intervened and ensured that he was not discharged. He was sent back to Bomana and detained there pursuant to the ministerial direction of 9 April 2019 pending his deportation.
    
36. On 29 July 2019 he commenced the current proceedings as an application for enforcement of human rights, with the assistance of the Public Solicitor. On the same day, this Court granted an urgent ex parte injunction to restrain the ICA and others from giving effect to the removal order of 9 April 2019. He has remained in custody since then. The trial of his human rights application commenced on 20 December 2019 and was completed on 20 February 2020.
    
37. The applicant has therefore been in custody for a continuous period of 1 year, 1 month, from March 2019 to April 2020. This is in addition to the period of 2 years, six months that he spent at the Manus Island Regional Processing Centre.
    
38. It is six years, six months since the applicant first came to PNG (October 2013). Of that period he has spent three years, seven months in detention of some form.
    
2. HAS THE APPLICANT’S RIGHT TO LIFE UNDER SECTION 35 OF THE CONSTITUTION BEEN INFRINGED?
   
39. Ms Wurr, for the applicant, calls upon the right to life provision, s 35, of the Constitution to argue that the respondents will,if not restrained, breach the applicant’s right to life. Section 35 (right to life) states:
    

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

(2) The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.

40. Ms Wurr submitted that the applicant has given evidence that he will be persecuted by his own family and killed if he is sent back to Bangladesh. He has been a Muslim all his life and some family members now hate him and wish to see him dead due to his conversion to Christianity. Ms Wurr also points out that the applicant has deposed that he will commit suicide if he is again to be deported to Bangladesh, rather than be killed by his family.
    
41. It is true that the applicant has given such evidence. However, I did not give it much weight in making the findings of fact outlined earlier. The applicant’s evidence that he would be killed if he is sent to Bangladesh has not been tested. He deposed that he received death threats from one of his brothers after he (the applicant) posted photos of his conversion to Christianity (joining the Seventh-Day Adventist Church) on his Facebook account. He includes what he says is a response from his brother but it is written in a foreign language and whatever is stated could be stated by anybody and it could say anything. It is untested and uncorroborated evidence, so I have accorded it no probative value.
    
42. Likewise with the applicant’s claim that he will commit suicide if he is to be deported again. As disturbing as such a statement is, it is not something that can be given much weight in the absence of medical evidence.
    
43. Apart from that, even if the Court were to accept and find as fact that, if the decision that the applicant is to be deported is confirmed, he is likely to commit suicide and if he does not commit suicide and he is sent to Bangladesh he is likely to be killed by his family, I see no merit in the argument that such a state of affairs can be sheeted home to the respondents and enable the court to find that their treatment of him amounts to an infringement of his right to life. No breach, including no imminent or probable breach, of the applicant’s right to life under s 35 of the Constitution has been proven.
    
3. HAS THE APPLICANT’S RIGHT TO FULL PROTECTION OF THE LAW UNDER SECTION 37 OF THE CONSTITUTION BEEN INFRINGED?
   
44. Section 37(1) states:
    

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.

45. Section 37 applies in all situations in which a person in authority, exercises power in relation to the rights or interests of others. Those exercising public power, of a legislative, executive or judicial nature, are duty-bound to ensure that the person whose rights or interests are affected, is given the full protection of the law. The duty exists in all situations and is not limited to cases in which the person, whose rights or interests are affected, is in custody or charged with an offence (Constitutional Reference No 1 of 1977 Re Non-compliance with Section 42(2) of the Constitution [1977] PNGLR 362, University of Papua New Guinea v Uma More [1985] PNGLR 48, The State v Mana Turi [1986] PNGLR 221, SC Ref No 1 of 1993 Re Section 365 of the Income Tax Act (1995) SC482).
    
46. There is no doubt that the applicant has been at all times since his arrival in PNG for the first time in 2013 entitled to the full protection of the law. The fact that he was forcibly brought from Australia to PNG and held at the Manus Island Regional Processing Centre did not mean that he had some inferior status that disqualified him from entitlement to most of the human rights that are enjoyed by PNG citizens.
    
47. The decision of the Supreme Court in Namah v Pato (2016) SC1497, which was that the accommodation of those (including the applicant) held at the Manus Island Regional Processing Centre was unconstitutional, can arguably be regarded as an enforcement of the transferees’ rights under s 42 (liberty of the person) of the Constitution not to be deprived of their personal liberty except in circumstances expressly authorised in the Constitution. The transferees had human rights simply by reason of the fact that they were human beings physically present in the territorial boundaries of PNG.
    
48. It is worthwhile dwelling on this point, lest it be thought in the present case that because the applicant entered PNG illegally in November 2018 he ceased to have the human rights bestowed on all persons in PNG, including for example non-citizens who enter and stay in PNG by lawful means. Most of the 19 discernible and distinct human rights conferred by the Constitution are conferred on all persons. There are only a few that are reserved for PNG citizens.
    
49. In the following table I have listed each of the 19 rights and categorised them according to who are the ‘beneficiaries’ or ‘possessors’ of each right: either all persons in PNG or PNG citizens only.
    

HUMAN RIGHTS IN PAPUA NEW GUINEA
CATEGORISED ACCORDING TO BENEFICIARIES/POSSESSORS

50. It will be observed that of the 19 distinct human rights, only five (the rights conferred by ss 50, 51, 52, 53 and 55) are conferred on PNG citizens only. The remaining 14 are conferred on all persons in PNG.
    
51. Getting back to the present case, it must be re-emphasised that the applicant has been entitled at all times he has been in PNG, including in the period after his illegal entry, to the full protection of the law. Has that right been breached?
    
52. I am not persuaded that it has been, at least it has not been shown how the respondents denied the applicant the full protection of the law. There is an argument to say that he should have been given a right to be heard before the Minister decided to issue the removal order and the direction that he be detained and that the failure to grant a right to be heard was a denial of the right to full protection of the law. However, that argument was not expressly put to the Court in the context of s 37 of the Constitution, and I prefer to leave further examination of the argument until the applicant’s case is considered under s 41 of the Constitution.
    
53. No breach, including no imminent or probable breach, of the applicant’s right to the full protection of the law under s 37 of the Constitution has been proven.
    
4. HAS THE APPLICANT’S RIGHT TO FREEDOM OF CONSCIENCE, THOUGHT AND RELIGION UNDER SECTION 45 OF THE CONSTITUTION BEEN INFRINGED?
   
54. Papua New Guinea is often said to be a Christian nation, which in one sense is true as Christianity is a world religion that is in its various forms practised by more people in Papua New Guinea than any other religion.
    
55. However, as I pointed out in Sir Michael Somare v Theo Zurenuoc (2016) N6308 (the case about the cultural items at Parliament House that were removed by the Speaker as they were deemed to be promoting non-Christian beliefs), to argue that Christianity deserves special status as the dominant religion is a contentious proposition because freedom of religion for all persons is guaranteed by s 48 (freedom of conscience, thought and religion) of the Constitution, which is in the following terms:
    

(1) Every person has the right to freedom of conscience, thought and religion and the practice of his religion and beliefs, including freedom to manifest and propagate his religion and beliefs in such a way as not to interfere with the freedom of others, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).

(2) No person shall be compelled to receive religious instruction or to take part in a religious ceremony or observance, but this does not apply to the giving of religious instruction to a child with the consent of his parent or guardian or to the inclusion in a course of study of secular instruction concerning any religion or belief.

(3) No person is entitled to intervene unsolicited into the religious affairs of a person of a different belief, or to attempt to force his or any religion (or irreligion) on another, by harassment or otherwise.

(4) No person may be compelled to take an oath that is contrary to his religion or belief, or to take an oath in a manner or form that is contrary to his religion or belief.

(5) A reference in this section to religion includes a reference to the traditional religious beliefs and customs of the peoples of Papua New Guinea.

56. Ms Wurr highlighted that it was a momentous decision for the applicant, who was born and bred as Muslim in a country in which Islam is by far the most dominant religion, to convert to Christianity, which he did on 29 June 2019 when he was baptised in to the Seventh-Day Adventist Church. He changed his religion as an act of free choice and he was able to do that because in PNG every person can choose their religion. However, if he is deported to Bangladesh his days of choice will be over as he will have to renounce his present religion and became a Muslim again. Either that or he will be killed. It is the respondents’ treatment of the applicant that has placed him in this invidious position. The respondents have therefore, Ms Wurr submitted, taken steps that result in a breach of the applicant’s rights under s 45 of the Constitution.
    
57. With respect, this is a tortuous argument, which depends, like the argument about the alleged infringement of the applicant’s right to life, on the untested and uncorroborated proposition that if the applicant is deported to Bangladesh he will be persecuted or killed for becoming a Christian. Even if that is correct, I see no merit in the argument that the respondents can be held responsible for such a state of affairs or that their treatment of the applicant amounts to an infringement of his right to freedom of religion. No breach, including no imminent or probable breach, of the applicant’s right to freedom of conscience, thought and religion under s 45 of the Constitution has been proven.
    
5. HAS THE APPLICANT’S RIGHT OF PROTECTION AGAINST HARSH, OPPRESSIVE OR OTHER PROSCRIBED ACTS UNDER SECTION 41 OF THE CONSTITUTION BEEN INFRINGED?
   
58. This is the part of the applicant’s case that has the most substance. The argument simply put is that although the respondents’ decisions and actions regarding the applicant, in particular the decisions to detain and deport him, have been lawfully taken under valid laws, in particular the Migration Act, and appear to have been made in accordance with law, the effect on the applicant and others of those decisions and actions has been such that in his particular case, those decisions and actions are rendered unlawful by virtue of s 41 of the Constitution.
    
59. As I said in Agnes Millia Okona-Meten v Leslie B Mamu (2019) N7668s 41 is a very special and potentially powerful provision because of its apparently all-embracing terminology. But it is also a controversial and contentious provision. Many years after Independence there are still sharply divergent judicial views as to what it means and how it operates. Section 41 (proscribed acts) 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.

60. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku[2012]1 PNGLR 41, 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.
  

61. 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.
    
62. Section 41 is in Division III.3 (basic rights) of the Constitution, surrounded by provisions (as shown in the table above) that very clearly confer enforceable rights and freedoms on all persons in PNG.
    
63. It has long been a vexed question whether s 41 creates an enforceable right or freedom – the right of protection against, or freedom from, harsh or oppressive actions – in the same way as do the other provisions of Division III.3?
    
64. Some Judges have said no, s 41 does not create rights and freedoms as such. It is not enforceable under s 57 of the Constitution in the same way that the other provisions of Division III.3 are. It has a restricted application. It cannot, for example, apply in a contractual situation. This can be labelled the narrow approach to s 41. It was taken by Kidu CJ and Kapi DCJ in the Supreme Court in Raz v Matane [1985] PNGLR 329, and by the National Court decisions of Cory J in Application by Tom Ireeuw [1985] PNGLR 430, Hinchliffe J in Tarere v ANZ Bank [1988] PNGLR 201, Brown J in Bank of Papua New Guinea v Muteng Basa [1992] PNGLR 271 and Curran v The State [1994]PNGLR 230, Salika J in Max Umbu v Steamships Ltd (2004) N2738, Hartshorn J in Department of Works v International Construction (PNG) Ltd (2008) N5896 and James Geama v OTML Shares In Success Ltd (2011) N4269.
    
65. Other Judges have said yes, s 41 creates rights and freedoms and is enforceable under s 57 of the Constitution in the same way that the other provisions of Division III.3 are. It is all-embracing and has no restricted application. It can be invoked in a contractual situation, including in a contract of employment. This can be labelled the broad approach to s 41.
    
66. It was championed in the Supreme Court by Amet J in his strong dissenting opinion in Raz v Matane [1985] PNGLR 329, and adopted in the National Court by Brunton AJ in Re Ricky Yanepa [1988-89] PNGLR 166 and Los J in Nowra No 8 Pty Ltd v Kala Swokin [1993] PNGLR 498. I have taken the broad approach in many cases including Kamit v Aus-PNG Research & Resources Impex Ltd[2007] 1 PNGLR 222, Petrus & Gawi v Telikom PNG Ltd (2008) N3373, Joyce Avosa v Rene Motril (2014) N5732, Paru v Kotigama & Bmobile-Vodafone (2015) N6089, Tammy Tomscoll v Rabura Mataio, Chief Migration Officer (2016) N6200, David Simon v Michael Koisen (2018) N7075,Boson Wilson & 3 Ors v Divine Word University (2018) N7613, Stewart Yareng v PNG Maritime College (2019) N8152, Abaina Emos & 18 Ors v Dr Sebastian Bagrie, Chairman, Governing Council, Madang Teachers College (2020) N8260, Jeanette Kornet v Dominic Sumala (2020) N8260.
    
67. It has not been suggested in the present case that I ought to depart from the approach to interpretation of s 41 that I have consistently taken, which is:
    

• human rights as conferred and defined by the Constitution have universal application, and cannot be said to have no operation in any situation;
  
• s 41 creates rights, freedoms and protections (and thereby imposes obligations) in the same way as other human rights provisions of Division III.3 of the Constitution;
  
• s 41(2) provides that the burden of showing a breach of human rights under s 41(1) rests on the person alleging it and may be discharged on the balance of probabilities.
  

68. Before determining whether that burden has been discharged I return to the point made when making the findings of fact for this case. The evidence on both sides is not detailed. Presumptions and inferences have had to be made and drawn. There are still gaps. Why was the applicant’s refugee application refused? Was he considered not to be a genuine refugee? Was he labelled as an economic refugee? Was his security status suspect?
    
69. I decline to speculate on those issues. The respondents had the opportunity to present evidence to show that the applicant is not the sort of man he says he is: a man who has fallen in love with a Papua New Guinean. That opportunity has not been taken. So I am going to treat the applicant as a genuine person. I will determine this case on the basis of the principles of love and humanity that underpin the Constitution. Love and humanity will prevail.
    
70. I am persuaded by the submissions of Ms Wurr that the applicant has discharged the burden of showing on the balance of probabilities that the respondents’ treatment of the applicant, especially his proposed deportation, has been, and if not restrained will continue to be harsh, oppressive and not warranted by the requirements of his particular case. This is because no or insufficient regard has been given to his particular circumstances in that:
    

(a) he was forcibly transferred in 2013 from Australia to PNG without any choice;

(b) he was unlawfully detained in a processing centre in conditions akin to a prison from 2013 to 2016 for two years, six months;

(c) he has married a PNG citizen and is the biological father of a child who is a PNG citizen (see Constitution, s 66(1));

(d) no investigation has been undertaken into the question of whether he is a fit and proper person to remain in PNG and there is no evidence that he has committed any offence other than illegal entry under the Migration Act;

(e) he has not been given a right to be heard on the question of whether he ought to be deported, nor has he been accorded the opportunity to say why he wishes to remain in PNG.

Furthermore the interests of other persons have not been considered, viz:

(f) the wishes of the applicant’s wife, a PNG citizen, who has professed her love for the applicant and her desire to have him in her and her child’s life; and

(g) the interests of the applicant’s child, now three years old, who if the applicant is deported will be denied the opportunity to be raised and nurtured with the love, support and physical presence of his biological father.

71. The decisions of the respondents have been made with callous disregard to their impact on not only the applicant but also his wife and his child. Decisions have been made without considering their human toll. This is precisely the sort of situation in which s 41 should be invoked. A breach of the applicant’s right of protection against harsh, oppressive and other proscribed acts under s 41 of the Constitution has been proven.
    

6 WHAT ORDERS SHOULD THE COURT MAKE?

72. The applicant seeks orders that he be released from custody and granted an entry permit. I agree that such orders are appropriate in principle but in framing them it is important that the jurisdictional basis of making them is set out. There are two remedial provisions of the Constitution that are pertinent: s 57(3) (enforcement of guaranteed rights and freedoms) and s 155(4).
    
73. Section 57(3) states:
    

A court that has jurisdiction under Subsection (1) [Supreme Court or National Court] 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).

74. Section 155(4) (the National Judicial System) 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.

75. I consider that it is necessary and appropriate for the purposes of s 57 of the Constitution and that it is necessary to do justice in the circumstances of this particular case to declare that the acts of the respondents involved in the treatment of the applicant have been and will continue to be if not restrained unlawful acts, under ss 41(1)(a) and (b) of the Constitution.
    
76. It follows that it is necessary and appropriate and it will do justice in the circumstances of this particular case to quash the decisions that the applicant be removed from the country and detained in custody, and to order that the applicant be issued with an entry permit authorising his residency in the country for a period of three years, subject to conditions including that he must live with and care for his wife and child and that he be permitted to work or engage in business in compliance with the laws of Papua New Guinea.
    

ORDER

77. It is declared and ordered under ss 57(3) and 155(4) of the Constitution that:
    

(1) the treatment of the applicant by the respondents, in particular regarding the granting of orders under the Migration Act for his removal from the country and detention in custody pending removal, has been, and will continue to be if not restrained, harsh and oppressive and not warranted by the particular circumstances of the applicant’s case, and the acts involved in such treatment are unlawful, under ss 41(1)(a) and (b) of the Constitution;

(2) the decisions of the second respondent under the Migration Actdated 9 April 2019 that the applicant be removed from the country and detained in custody and the instruments effecting those decisions issued are null and void and are quashed;

(3) the applicant shall, subject to this being with his consent, be released from custody forthwith, on condition that he keeps the peace and is of good behaviour and on his own recognisance appears before the Court at the next hearing of these proceedings and whenever he is required to appear, until he is excused by the Court from doing so;

(4) the second and/or third respondents shall by 29 April 2020 issue the applicant with an entry permit under s 5 of the Migration Act authorising his residency in the country for a period of three years, which shall be subject to conditions that: (a) he, within one month after the date of issue of the permit, settles in Manus Province with his wife, Alice Michael, and child, Mohamed Ali Helal, and maintains them faithfully and diligently; and (b) he keeps the peace and is of good behaviour; and (c) he shall be permitted to work or engage in business in compliance with the laws of Papua New Guinea; and (d) those conditions shall not be varied or cancelled and his entry permit shall not be cancelled and no further action shall be taken to remove him from Papua New Guinea except by order of the National Court, granted on its own motion or upon application made by originating summons in separate proceedings;

(5) these proceedings are adjourned to 30 April 2020 at 11.00 am for further hearing to check compliance with order (4) and to determine what further orders, if any, are necessary or appropriate.

_____________________________________________________________
Public Solicitor : Lawyer for the applicant
Solicitor-General : Lawyer for the 4^th Respondent