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Schuiling v Krau [1977] PNGLR 176 (21 June 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 176 - Dirk Leopold Schuiling v Alphonse Krau 

[1977] PNGLR 176

N98

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DIRK LEOPOLD SCHUILING

V

ALPHONSE KRAU

Lae

Kearney J

20-21 June 1977

IMMIGRATION AND ALIENS - Prohibited immigrants - Entry without entry permit - Honest error - Procedures adopted - Quare whether proper exercise of discretion to prosecute - Carriers’ functions and responsibilities - Sentence of three months’ imprisonment manifestly excessive - No power in court to order deportation - Migration Act 1963, s. 24(1), s. 24(3).

IMMIGRATION AND ALIENS - Prohibited immigrants - Deportation - No power in court to order deportation - Deportation, exercise of executive power - Migration Act 1963, s. 24(3).

The appellant was charged with and convicted of entering Papua New Guinea without an entry permit, contrary to s. 24(1) of the Migration Act, 1963. The appellant a young Dutch student of entomology had travelled from the South Celebes to Indonesia where he was informed (incorrectly) by the Indonesian authorities that he could only enter Papua New Guinea without a visa if he possessed an onward ticket to some other country. On the faith of that information the appellant purchased an onwards air ticket from Pt. Moresby to Australia and then took the regular Air Niugini flight into Papua New Guinea. During a stopover at Vanimo it appeared that the appellant’s cholera vaccination was overdue; he was taken from the plane for an injection at the hospital and from thence at the doctor’s instigation to the local police to see if they could arrange an entry permit. After giving a statement to the police he was arrested, charged with being a prohibited immigrant convicted and sentenced to three months imprisonment and further ordered “for immediate deportation after completion of jail sentence, under s. 24(3) of the Migration Act 1963”. At no time did Air Niugini enquire whether the appellant had an entry permit. On appeal against severity of sentence:

Held

(1)      In the circumstances the sentence of three months imprisonment was manifestly excessive;

(2)      There had been a substantial miscarriage of justice;

(3)      Section 24(3) of the Migration Act 1963 does not vest jurisdiction in any court to order deportation; it is merely a cautionary provision to make it clear that a conviction for being a prohibited immigrant does not prevent deportation. Deportation is an exercise of executive power which may only be ordered by the responsible Minister under s. 15 of the Migration Act 1963.

(4)      The appeal should be allowed.

(5)      The appellant having served 19 days imprisonment, the sentence imposed by the District Court should be set aside, and a sentence of 19 days imprisonment substituted therefore.

(6)      The deportation order, being a nullity should be formally quashed.

Quare whether the prosecution of the charge was a proper exercise of the discretion to prosecute. The prosecution should not “have been instituted, because it misconceives the true purpose of the Parliament in creating the offence”.

Discussions of the functions and responsibilities of carriers in checking that passengers hold valid entry permits.

Appeal

This was an appeal against severity of sentence imposed by the District Court at Vanimo in respect of a conviction on a charge of entering Papua New Guinea without an entry permit, contrary to the provisions of s. 24(1) of the Migration Act, 1963. The appellant was sentenced to three months’ imprisonment and further ordered “for immediate deportation after completion of jail sentence under s. 24(3) of Migration Act, 1963”.

Counsel

B. Avery, for the appellant.

M. Maraleu, for the respondent.

Cur. adv. vult.

21 June 1977

KEARNEY J: By notice of appeal dated 15th June, 1977 the appellant appeals against the severity of a sentence of three months imprisonment with hard labour imposed upon him by the District Court at Vanimo on 2nd June, 1977, following his conviction before the court that day upon a charge of being a prohibited immigrant.

A copy of the papers constituting the District Court record is before me. Although not all the requirements of the District Courts Act, 1963 governing appeals from District Courts have been met, the respondent took no objection to this, and consented to an application by the appellant yesterday that the appeal be heard urgently. In those circumstances and as I considered that the appellant had done what was reasonably practicable to comply with the Act, the application was granted, and the appeal was heard yesterday.

The appellant is a young Dutchman, a student of entomology. Having spent the period August 1976-March 1977 working at a research institute in the South Celebes, he then went touring in Indonesia; eventually, intending to visit Papua New Guinea and trusting to find a Papua New Guinea Consulate in Jayapura, he made his way there to attend to whatever the requirements were for entry, and to cross to Papua New Guinea.

At Jayapura, he found that there was no Consulate, and was informed by the Indonesian authorities there, that he could only enter Papua New Guinea without a visa, if he possessed an onward ticket to some other country. That information was not correct — no non-national may enter Papua New Guinea unless he holds an entry permit — but the appellant was not to know that; on the faith of that information, I am told, he bought in Jayapura, and holds, an onwards air-ticket from Port Moresby to Australia.

Believing that he had done all that was necessary, the appellant then bought from the Merpati office in Jayapura a ticket from Jayapura to Wewak, and took the regular Air Niugini flight on 1st June. How it came about that the nation’s own airline, Air Niugini, allowed the appellant to board its aircraft at Jayapura without first checking that he held an entry permit, I do not know; but board it he did, and there is no suggestion that he did anything but board it quite regularly. What happened thereafter is best told in his own words, in his affidavit of 10th June:

“The next day, June 1st, I went to the airport, Indonesian customs stamped my passport, and I got on the (Air Niugini) plane. During a stopover at Vanimo, passengers were ordered to leave the aircraft to get their papers checked. The first thing they checked on me was my vaccination certificate. My cholera vaccination appeared to be overdue. They phoned the hospital. In the meantime I told them I had no permit for P.N.G. yet, but this was not paid serious attention to, since the vaccination seemed to be more urgent. The doctor came and told me and the Air Niugini officials that he had to take me to the hospital. So they decided to leave without me and took my luggage off the plane.

At the hospital I was administered a cholera shot and given two drops on the tongue against polio. The doctor told me he probably had to take me into quarantine. He asked me if I had a permit for P.N.G. and on my negative answer he phoned the local police and asked them if they could arrange a permit for me. I was taken to the police office and never saw the doctor again.

The Police took a statement and arrested me after that. Next day, June 2nd, I was sent to the district court and sentenced to 3 months hard labour, at Boram Correctional Institution. I asked immediately after I heard my sentence if there was a possibility for appeal. The judge directed me to the authorities at the Institution for that. The same day I was flown to Wewak. On arrival at the Institution I informed the chief officer of my wish to appeal. Now I am awaiting further steps and working at the Institution.”

All the foregoing facts are conceded to be correct. The appellant remains in custody at this date.

It is clear that the appellant is a prohibited immigrant, because he entered the country when he did not hold an entry permit: s. 6(1) of the Act[clxvi]¹. By entering the country without an entry permit he committed an offence which carries a maximum punishment of six months imprisonment: s. 24(1) of the Act. Before the District Court he admitted these facts and he was rightly convicted. I should add that the appellant made no point of the fact that the actual charge referred to the appellant as an “illegal immigrant” instead of a “prohibited immigrant”, conceding that that was not material; and no issue was raised as to whether or not the person who laid the charge, Chief Inspector Krau, was an ‘authorised officer’ under the Act[clxvii]2. Nor was the question of any application of s. 24 of the Criminal Code, raised before me.

The fact that the conviction was sound in law, does not mean that it was proper to have instituted the prosecution. As I mentioned last week, in delivering judgment in The State v. Meli Heti[clxviii]³, one of the most important, difficult and sensitive tasks in the administration of justice, is the proper exercise by prosecuting authorities, of their discretion to prosecute. I am informed by counsel for the respondent that this appeal is opposed, upon instructions from the immigration authorities, and they presumably supported the original prosecution. With respect, I do not consider the prosecution should have been instituted, because it misconceives the true purpose of the Parliament in creating the offence.

There was no real criminality in anything the appellant did. He is an international traveller, one of many thousands such who visit Papua New Guinea every year. It is notorious that the entry requirements of different countries vary widely; in those circumstances it is unrealistic to expect a traveller to do anything else than to rely upon the international carriers, and their agents, to know and enforce these requirements. This is particularly obvious, when the carrier in question is the national airline of the country being visited.

A major cause of what occurred in this case, was that Air Niugini, or its agent in Jayapura, failed to check that the appellant held a valid entry permit, before selling him a ticket and permitting him to board the aircraft. The failure not only led the appellant into a breach of the Act, it may have had the result that certain officers of Air Niugini themselves are in breach and subject to penalty: see s. 25(a)[clxix]4. There is thus a compelling sanction upon a carrier to check that the passengers it carries, hold valid entry permits. Had the check been properly carried out in Jayapura, the appellant would never have been allowed to board the aircraft, and none of this trouble would have occurred.

Nevertheless the errors were made and, as a result, the appellant stepped off the aircraft at Vanimo, a prohibited immigrant. In these circumstances a carrier might reasonably be expected to assist its passenger; what happened here — a situation created not by deliberate intent, but by human error — must happen from time to time at major ports of entry such as Port Moresby, and one would expect that the international carriers and the immigration authorities have devised procedures to deal with it. Certainly the existence of s. 25(a) should spur a carrier to action, in an enlightened self-interest. One would envisage a request for an entry permit being made, under s. 33 of the Migration Regulations 1964. If this resulted in the grant of an entry permit, the situation is thereby immediately resolved — the passenger ceases to be a prohibited immigrant. If, however, an entry permit is not granted, the situation would usually be resolved by a request to the passenger that he leave the country within whatever time was considered appropriate, and a request to the carrier that it fly him out. If this approach was unsuccessful for some reason, the passenger could be deported under ss. 15 and 17 of the Act, and the carrier who brought him in, required under s. 18(1) of the Act to fly him out.

That is the sort of activity, and the only sort of activity, which should have happened at Vanimo in this case, but did not. Perhaps the failure by the carrier to assist its passenger was due to the fact that Vanimo is not a major point of entry for international travellers, coupled with the side-issue of vaccination, in this case.

And so the appellant came into the hands of the police. He was clearly a prohibited immigrant, and would remain so unless he were granted an entry permit. But he was not a surreptitious border-hopper, crossing by stealth in the night, or by forged documents, or trickery, or by evading an officer; nor had he attempted any of these things. He was simply an international traveller, caught up in one of the many entanglements of modern travel; he acted honestly throughout, exhibiting some of the fecklessness of youth.

In this connection it is noteworthy that s. 62 of the Act prevents anyone other than an “authorised officer” — the police as such are excluded — from prosecuting a person upon a charge of being a prohibited immigrant. This is a very clear indication by Parliament that care must be exercised when deciding whether to prosecute for offences under the Act. The degree of intentional wrong-doing exhibited by a “prohibited immigrant” may be pronounced; but he may not have been involved in any wrong-doing at all, and, if so, it would be quite inappropriate to charge him with an offence under s. 24(1) of the Act. The immigration authorities, in whom the control of that exclusive power to prosecute is vested, should carefully develop guidelines for their officers so that they may properly decide which of the several courses of action open, is appropriate to the particular case before them; and to ensure that like cases may be treated consistently. The present case indicates that either such guidelines do not exist or they are deficient, or they were not observed in this case.

Here the appellant should have been treated with courtesy and consideration, until the tangle was unravelled with the assistance of the carrier, along the lines I have mentioned. It would have been a simple matter. Instead of that, he was prosecuted and imprisoned, a disgraceful state of affairs. He should never have been prosecuted at all; but he was, and so he came before the District Court, under arrest.

The facts were placed fully before the magistrate; they were not in dispute. The conviction followed as a matter of course.

The sentence of 3 months imprisonment, in the light of those admitted facts, is manifestly excessive; there has been a substantial miscarriage of justice. It may have been appropriate to discharge the appellant and place him upon a bond to appear for judgment when called, with a condition that he either leave the country or obtain an entry permit within a specified time.

Quite apart from these criminal proceedings or anything which the magistrate did, there was and is ample power in the immigration authorities to ensure the safe custody of the appellant and his departure from the country if they considered it proper or desirable. A conviction by a court is not a necessary pre-condition to deportation. The magistrate was, however, concerned about this aspect because he made a further order in the following terms:

“... order for immediate deportation after completion of jail sentence, under s. 24(3) Migration Act 1963”.

Neither a District Court, nor any other court, has power to order deportation. Section 24(3) of the Act is merely a cautionary provision to make it clear that a conviction for being a prohibited immigrant does not prevent his being deported; the section does not itself vest jurisdiction in a court to order deportation, and, if it had done so, its constitutionality would be open to doubt. Only the responsible Minister, in effect, may order the deportation of a prohibited immigrant: s. 15 of the Act[clxx]⁵. Such an order is said to be unreviewable: s. 61aa of the Act. Deportations are regularly reported to Parliament: s. 62a(b) of the Act. Deportation of a person who enters without an entry permit is not a punishment; it complements the right to exclude him in the first place. It does not involve the exercise of judicial power as does a conviction and sentence, which can only be imposed by a court; it is an exercise of executive power.

In the light of the foregoing the appeal is upheld. The appellant has already served 19 days imprisonment. In all the circumstances, the sentence imposed by the District Court should be set aside, and a sentence of 19 days imprisonment with hard labour substituted therefor. The appellant should now be discharged. It is to be hoped that Air Niugini and the immigration authorities can now make some amends to him.

The deportation order made by the magistrate is a nullity, as there was no jurisdiction to make it; it is formally quashed.

Orders accordingly.

Solicitor for the appellant: W. J. Andrew, Acting Public Solicitor.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.