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Abdullah v Yaseen [2001] PNGLR 1 (15 August 2001)

[NATIONAL COURT OF JUSTICE]

JAMIL MUHAMMED ABDULLAH

v

DR. IQBAL YASEEN;
PARAI K. TAMEI - CHAIRMAN TASK FORCE; and
SECRETARY - DEPARTMENT OF FOREIGN AFFAIRS

Waigani: Sevua j

15-17 August 2001

ADMINISTRATIVE LAW – Immigration and aliens – Deportation order – Application to stay enforcement of deportation order – Applicant has civil suit pending in National Court and is required for police investigation into human smuggling racket – Police investigation completed – Pending civil suit in National Court not good reason to stay deportation order.

IMMIGRATION AND ALIENS – Deportation order – Applicant entered country illegally thus an illegal immigrant – Sought equitable relief – Not come with clean hands.

Facts

The plaintiff is the subject of a deportation order issued by the Minister for Foreign Affairs on 5 July 2001. The deportation was not executed because the plaintiff was assisting police in their investigations into an alleged human smuggling racket. On 15 August 2001, the plaintiff filed a writ of summons, the subject of these proceedings against the first defendant and further filed this application by way of a notice of motion seeking orders inter alia, that the second and the third defendants be restrained from deporting him until these substantive proceedings against the first defendant are determined.

Held

1. The plaintiff is an illegal immigrant whose status is a 'persona non gratia' and liable to deportation by the State.

2. The plaintiff being an illegal immigrant did not come with clean hands to seek equitable relief.

3. The power to order a deportation is vested in the Minister for Foreign Affairs by virtue of s 12 of Migration Act and is an executive act, not a judicial act requiring the exercise of a judicial power.

4. A pending civil suit cannot be used as the basis for the continued unlawful residence of the plaintiff. It is not a good reason in law to stay a valid deportation order.

Papua New Guinea cases cited

Bruce Botha v Roy Yaki, Minister for Foreign Affairs [1999] PNGLR 490.

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

Counsel

G Epo and A Manu, for plaintiff.
A Furigi, for first defendant.
J Kawi and A Sampson, for second and third defendants.

17 August 2001

Sevua j. The plaintiff is the subject of a deportation order issued by the Minister for Foreign Affairs on 5th July 2001. The deportation was not executed because the plaintiff was assisting police investigation into an alleged human smuggling racket.

On 15 August 2001, the plaintiff filed a writ of summons the subject of proceedings against the first defendant, Dr. Iqbal Yaseen, in which he alleged that the first defendant and other persons owed him monies. The plaintiff also filed a notice of motion on the same date seeking orders, inter alia, that the defendants be restrained from deporting him.

The motion was to be heard ex parte on Wednesday morning, 15 August, however, I directed that it be dealt with inter partes. So the plaintiff moved his motion on Wednesday afternoon. The application was adjourned to this morning and the court directed officers of the Foreign Affairs Department and the Police Force to file affidavits. Those directions have been complied with and the court has had the benefit of reading affidavits sworn by Leonard Louma, Acting Foreign Affairs Secretary, and Parai Tamei, Chairman of Task Force Investigation Team into abuses of the Migration Act. The court has also had the benefit of assistance from the Police Force, through the affidavits of Acting Police Commissioner, Joseph Kupo, and Director, Criminal Investigations Division, Chief Superintendent Thomas Eluh.

When this matter resumed this morning, the plaintiff's counsel, Mr Epo, continued with the plaintiff's motion and sought the orders his client is seeking, in particular, the injunction to restrain the defendants from deporting his client. The grounds for the application were reiterated as firstly, the plaintiff was still required in the country as a material police witness in respect of criminal charges laid against the first defendant, Dr Yaseen. Secondly, he has filed proceedings to recover monies he claims to be owing and due to him.

Having considered all the affidavit evidence before me and the submissions by Mr Epo, Mr Kawi and Mr Furigi, this court is of the view that both, on the facts of this case, and in law, there is no basis for the injunction being sought by the plaintiff.

It is a fact that the plaintiff was a material witness in the police investigations into the human smuggling racket. However, there is no dispute that the plaintiff has already given evidence against the first defendant at the Boroko District Court on 14 August 2001. There is also no dispute that the plaintiff is no longer required as a witness in the criminal proceedings against the first defendant.

The Court is satisfied from the evidence of Messrs Louma, Tamei, Kupo and Eluh, that the plaintiff's presence in the country as a prosecution witness in the criminal proceedings against Dr. Yaseen, currently pending before the Boroko District Court, is no longer necessary. From the evidence before me, the plaintiff has completed his evidence against the first defendant, Dr. Yaseen, and he is no longer required. However, if he is further required by Police there is an undertaking between the Police Force and Department of Foreign Affairs that arrangements could be made for the plaintiff to return to the country upon proper entry documents.

The Court is satisfied, and I find that, the plaintiff is an illegal immigrant whose status in the country is that of a "persona non gratia" therefore liable to deportation by the State. There can be no doubt in anyone's mind that by law, the plaintiff is an undesired alien in this country. The first ground of the plaintiff's notice of motion must therefore fail and I dismiss it.

The second ground of the plaintiff's application can be disposed of without much discussion as I have already found as a fact that the plaintiff is an illegal immigrant. That fact alone renders him liable to deportation in pursuance of s 12(1)(a) of the Migration Act. The fact that he has filed a writ of summons claiming monies allegedly owing and due to him, does not, as of right, or as a matter of law, entitle him to remain in the country which he entered illegally.

In my view, the plaintiff cannot validate his unlawful entry to Papua New Guinea, and continued unlawful presence in the country under the excuse of his writ of summons now pending before the Court. Nothing stops him from instructing his lawyers from his foreign home where he will reside. If he is required to appear as a witness in the civil suit, he will need to undergo the procedures of securing proper legal entry documents. But I find it mischievous, in fact spurious, for the plaintiff to use the current proceedings he has just instituted as a lever or advantage, to obtain from this Court, an order sanctioning his continued illegal presence in the country. Pursuant to s 7(1)(a) of the Migration Act, the plaintiff's presence in the country is unlawful and pursuant to s 12(1)(a) of that Act, the Foreign Affairs Minister has the power to remove thim from the country. I consider therefore that the plaintiff cannot use the writ of summons he has filed as the basis for his continued unlawful presence in the country. As an illegal immigrant, he has no right to remain in the country to pursue his claim in a civil Court. I agree with Injia, J. who said in Bruce Botha v Ray Yaki, Minister for Foreign Affairs & Ors (1999) unreported N1876, at p 3: "A foreigner cannot validate his unlawful presence in the country under pretext of some civil claims pending determination before the courts in the country."

Mr Kawi has made a number of submissions on the principles of law relating to grant of injunction. Those principles are clear and the law is well settled here in our jurisdiction. I do not need to refer to those authorities and the principles because I think this application can be decided on the facts alone, and with reference to the Migration Act. But I do accept the principles that have been referred to.

The Court only needs to reiterate that the plaintiff, having entered Papua New Guinea illegally, thus having no valid entry permit, has no right or interest, in law or equity, to protect. Mr Kawi's submission that the plaintiff, who is seeking equitable relief, has not come with clean hands, is appropriate and to the point. An injunction is one of several equitable relief that may be granted by a Court. Traditionally, it was a development of equity administered in England by the Court of Chancery. It is trite law that in equity, the maxim, "he who comes to equity must come with clean hands," is the norm. Hence, the plaintiff seeks an injunction, which is an equitable relief, however, the fact that he is an illegal alien because he entered the country illegally means he did not come with clean hands. He is therefore not entitled to the equitable relief he seeks.

The Minister for Foreign Affairs, who is empowered under the Migration Act, has exercised his discretion pursuant to s 12 of the Act. The exercise of that power is an executive act. A deportation order issued to a person who has entered the country without an entry permit, is not a punishment, but it compliments the right to exclude him in the first place. That right does not involve the exercise of judicial power like a conviction or sentence does, which are only imposed by a Court.

I allude to that because the Court has been asked to adjourn the plaintiff's application and order his deportation. In my view, the court has no power under the Migration Act to order a deportation. That power remains with the Minister for Foreign Affairs by virtue of s 12 of the Migration Act. The Court has no concurrent power to exercise with the Minister under that provision. I consider therefore that the power to order a deportation of a non-citizen who had entered the country without a valid entry permit is vested in the Minister for Foreign Affairs, and is an executive act, which does not involve the exercise of a judicial power. See: Dirk Leopold Schuiling v Alphonse Krau [1977] PNGLR 176.

For that reason, it is not appropriate for this Court to order the deportation of the plaintiff. A removal order has already been issued by the appropriate authority and the consequence of this decision would mean that the Immigration Officers in the Department of Foreign Affairs may proceed with facilitating the removal of the plaintiff from the country in accordance with the removal order issued by the Minister for Foreign Affairs on 5 July 2001.

For all these reasons, the plaintiff's application is refused and the first and second defendants are at liberty to execute the removal order in accordance with this judgment. The plaintiff's application is therefore dismissed and the Court orders the plaintiff to pay all the defendants' costs.

In conclusion, it is the court's view that the first defendant's counsel's submission that the plaintiff's writ of summons be dismissed is inappropriate in the circumstances. That action will be determined and disposed of in the usual manner.

Lawyer for plaintiff: Manu & Associates.
Lawyer for first defendant: Maladinas.
Lawyer for second and third defendants: Solicitor General.