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Botha v Yaki [1999] PNGLR 490 (23 April 1999)

[1999] PNGLR 490

PAPUA NEW GUINEA

[IN THE NATIONAL COURT]

BRUCE BOTHA

V

ROY YAKI MINISTER FOR FOREIGN AFFAIRS AND TRADE;
DETECTIVE INSPECTOR PETER GUINESS; AND
THE STATE

LAE: INJIA J
9, 23 April 1999

Facts

The applicant is a foreigner, resident in Lae, Papua New Guinea. He is applying for order staying execution by the second defendant, of orders issued for his removal from the country and direction for his detention in custody pending his removal, both issued by the first respondent on 4 October 1998. The two orders were issued under s 12 and s 13 of the Migration Act (Ch 16) respectively.

Held

1. It is settled that notwithstanding s 19 which prohibits any appeal or challenge to the Minister’s removal order in a Court, this Court has inherent power to review such Ministerial acts under s 155(4) of the Constitution: see Erwin Guggeans v The Acting Minister for Foreign Affairs & The State [1987] PNGLR 352. But the applicant in the present case does not challenge or seek to review the Minister’s removal order. He simply wants to stay the execution of the removal order. This sort of application, interlocutory in nature, must have some proper legal basis. It must be founded on the existence of some legal or Constitutional rights requiring protection by the Courts, which is pending determination in the Courts: Erwin Guggeans v Acting Minister for Foreign Affairs & The State, supra, followed.
   
2. His unfinished business in claims of a civil nature, in this case in the form of MP 110/98, before the Courts of this country cannot be a proper legal ground for staying execution of the removal order. A foreigner cannot validate his unlawful presence in the country under pretext of some civil claims pending determination before the Courts in the country.
   
3. The application refused.
   
4. The defendants are at liberty to execute the detention and removal orders the subject of this application.
   

Papua New Guinea cases cited

Erwin Guggeans v The Acting Minister for Foreign Affairs and Trade [1987] PNGLR 352.

Counsel

Applicant in person.
No appearance for the defendants.

23 April 1999

INJIA J. The applicant is a foreigner, resident in Lae, Papua New Guinea. He is applying for order staying execution by the second defendant, of orders issued for his removal from the country and direction for his detention in custody pending his removal, both issued by the first respondent on 4 October 1998. The two orders were issued under s 12 and s 13 of the Migration Act (Ch 16) respectively.

The specific orders he seeks from this Court set out in the originating summons are:

1. That the order for removal by Roy Yaki (The Minister for Foreign Affairs) be stayed pending the outcome of my National Court appeal and human rights application,
   
2. The order for detention in custody by Mr Yaki also be stayed pending the outcome of my appeal and human rights application,
   
3. That Det. Insp. Guinness (the second defendant) be ordered to refrain from exercising the above orders,
   
4. The protection of the law is sought from the State of Papua New Guinea (third defendant).
   

The only purpose for seeking the orders is to enable him to remain in the country to prosecute and receive judgment in two Court cases now pending determination in the National Court at Lae and to enable him to exercise his right of appeal to the Supreme Court if the National Court’s decisions in those two matters are not in his favour. These two matters are: (1) An appeal against a sentence of 20 months imprisonment for drug offences imposed by the District Court at Lae on 15/10/97 (District Court Appeal No. 409/97); (2) A human rights application against the State authorities (registered No. MP 110/98).

A removal order is issued by the Minister for Foreign Affairs in a situation where a foreigner’s presence in the country is unlawful under s 12(1) of the Migration Act. A presence is unlawful if that person is either not the holder of an entry permit or has evaded a migration officer for purposes of entering the country: s 7(1). A detention order issued by the Minister for Foreign Affairs under s 13 is facilatory to the person’s effective removal out of the country - the reason being that the person whose presence in the country is unlawful and is ordered out of the country has no right to enjoy freedom of movement within the country.

There is no evidence from the defendants as to the grounds under s 7 for issuing the removal and detention orders but I would think it might be based on any one of the two grounds specified under s 7(1). Whatever the ground(s) may be, as the applicant in these proceedings does not challenge the validity of the deportation order, I infer that he was then and still is present in the country unlawfully.

It is settled that notwithstanding s 19 which prohibits any appeal or challenge to the Minister’s removal order in a Court, this Court has inherent power to review such Ministerial acts under s 155(4) of the Constitution: see Erwin Guggeans v The Acting Minister for Foreign Affairs & The State [1987] PNGLR 352. But the applicant in the present case does not challenge or seek to review the Minister’s removal order. He simply wants to stay the execution of the removal order for the reasons given. This sort of application, interlocutory in nature, must have some proper legal basis. It must be founded on the existence of some legal or Constitutional rights requiring protection by the Courts, which is pending determination in the Courts: Erwin Guggeans v Acting Minister for Foreign Affairs & The State, supra, at p 356.

The applicant says he has a right to remain in the country to enforce the violation of his Constitutional rights, whatever they may be, and his right to receive judgment in the appeal matter. In my view however, his unfinished business in claims of a civil nature, in this case in the form of MP 110/98, before the Courts of this country cannot be a proper legal ground for staying execution of the removal order. There are no rules precluding a foreigner resident in his own country from prosecuting a civil cause of action arising within this country, in the Courts of this country. If he wishes to return to this country to finish his unfinished business in the Courts, he should make fresh application to the relevant authorities for an entry permit. A foreigner cannot validate his unlawful presence in the country under pretext of some civil claims pending determination before the Courts in the country.

In relation to his unfinished business of a criminal nature, the situation is slightly different. He is required by law to be dealt with under the penal laws of the land. It is lawful for the State to detain him under the penal laws until such time as he receives judgment in the matter. In the case of an appeal, he could be released on bail pending the prosecution and determination of his appeal provided he has valid entry permit. If he does not have a valid entry permit, his presence in the country is unlawful. Where his unlawful presence in the country is the subject of an existing removal and detention order, then he must be detained whilst awaiting decision on his appeal. If he wins the appeal, he should be removed from the country under the existing removal order. If he loses the appeal, he will be required to serve his term and upon completion of his term, he should be removed from the country.

For these reasons, I refuse the application. Consequently, the defendants are at liberty to execute the detention and removal orders the subject of this application, in accordance with this ruling.

Applicant in person.
Lawyers for the defendants: Solicitor General with Richard Saranduo.