PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCAPP 16 of 2017
ENFORCEMENT PURSUANT TO
CONSTITUTION SECTION 57
APPLICATION BY:
BEHROUZ BOOCHANT
Applicant
AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
First Respondent
ND:
HON PETRUS THOMAS
Minister for Immigration
Third Respondent
Waigani: Injia CJ
2017: 6" & 7" November
Constitutional Law- Application for enforcement of Constitutional Rights ~ Applicant, an
asylum seeker accommodated at Manus Island Regional Processing Center(MRPC) which
closed on 31 October 2017 — Applicant refusing to leave the Centre and move into Transit
Centres situated away from MRPC- Application for interim orders in aid of substantive
relief - Exercise of discretion- Application refused.
B. Lomai, for the Applicant
R Bradshaw for the Second Respondent
7 November 2017
1
Injia Cl: The Applicant is an asylum seeker accommodated at the Manus Island
Regional Proce: Center(MRPC) which closed on 31% October 2017. In his
substantive application, he claims declaratory and injunctive relief to enforce certain
fundamental rights guaranteed under the Consti
breached or threatened to be breached by the respondents. The application is made
under Section 57 of the Constitution which gives this Court jurisdiction to grant
declaratory and injunctive relief to protect actual or imminent breaches of
Constitutional rights. Such application comes within the original jurisdiction of the
ion which he claims have beenSupreme Court in aid of which interim relief may be granted by a single Judge of the
Supreme Court under Order 3 Rule 3 (b) and rule 15 of the Supreme Court Rules
2012. | find that the application is properly before me.
On 26 April 2016 in which the SupremeCourt found the detention of asylum seekers
held at the MRPC was unconstitutional and illegal and ordered the closure of MRPC
by the governments of Australia and Papua New Guinea: Norman Namah, MP and
Leader of the Opposition v Hon. Rimbink Pato, Minister for Foreign Affairs &
Immigration, The National Executive Council and The Independent State of Papua
New Guinea (2016) SC1497. The Court did not fix a time line by which the Centre
should be closed and how the future settlement of the asylum seekers would be
addressed by the governments of Australia and Papua New Guinea. It is now agreed
between the parties in the present proceedings that on Tuesday the 31* of October
2017 at Spm, the governments of PNG and Australia closed the MRPC in compliance
with the Supreme Court decision. The applicant is amongst other asylum seekers
who have refused to move out of the closed MRPC and to move into three new
transit centres situated some distance away from MRPC, that were built by the
government of PNG with assistance from the government of Australia, to
accommodate the asylum seekers pending decisions on their future settlement.
. The application is contested by the second respondent. The applicant relies on his
affidavit and that of his lawyer (Ben Lomai) whilst the second respondent relies on
the affidavit of Mr Solomon Kantha (Acting Chief Migration Officer of the PNG
Immigration and Citizenship Service Authority) and an affidavit of the second
respondent’s lawyer (Robert Bradshaw).
The case for the parties in brief are these. applicant claims that since the closure of,
‘the MRPC, “the respondents have inflicted extreme forms of punishment on the
asylum seeks in order to force them to vacate the Centre and move to the ELTC or
Hillside Haus or East Haus Camp, which clearly violate sections of the Constitution
including Section 36 (1) (“the right not to be subjected to torture, inhuman treatment
and punishment”), 37(1) (“the right of a person to full protection of the law”) and
Section 37(17) (“the right of a person to be treated with humanity and respect for the
inherent dignity of the human person”): see paragraph (a), page 10 of the
Application to Enforce Constitutional Rights filed on 30" October 2017 ("the
Application”). The Application contains particulars of “extreme forms of
punishment”, “the most extreme form of punishment employed by the Respondents
thus far, is the denial of access to the basic amenities and necessities of life, by
cutting off electricity, water, sewerage, sanitation to their compounds and
demolishing and cordoning off buildings”: see paragraph (b) ~ (k) at pages 10- 15 of
the Application to Enforce Constitutional Rights filed on 30 October 2017 (“the
2Application”) There is evidence to support these claims. There is evidence of threats,
intimidation and harassment of asylum seekers in the lead up to and during the
closure of the MRPC and those are recurring daily in an effort to pressure the asylum
seekers to vacate the MRPC and to move into the new transit Centres. There is
evidence that living conditions at the MRPC have become unbearable and the health
and safety of asylum seekers are at risk.
. The second respondent say the transferees were given adequate notice of the
impending closure of the MRPC and that the PNG government assisted by the
government of Australia took steps to construct the new transit centres to
accommodate the asylum seekers. The transit centres offer accommodation facilities
of good standard that are far better than those provided to other asylum seekers
living in PNG, The facilities offer air conditioned rooms, dormitory style beds,
communal bathrooms and spaces, laundry facilities and secure fencing. The asylum
seekers have complete freedom to move to and from the transit centres. Bus
service is also provided. Also provided are food, water, electricity, sanitation and
sewerage, health care and living allowance at K280 per fortnight. Photographs of the
facility and rooms are in evidence. The applicant has been granted refugee status
and refused to move out of MRPC and move into one of two transit facilities built for
“refugees”. He chose to remain behind in the closed MRPC and he has himself to
blame for the hardships that he is facing. The applicant has chosen to stay in a
confined military environment where movement to and from the premises is
restricted and he cannot be complaining of restrictions on his movements. The
respondent has closed the MRPC facility and restoring services will be costly and
difficult
It is settled principle that the applicant must persuade the Court that there are
serious questions to be tried on the substantive claim, the balance of convenience
favours the grant of interim relief and damages would not be an adequate remedy. if
damages were an adequate remedy then even if the applicant has serious issues to
be tried, the interim relief may be refused: Airlines of PNG v. Air Niugini Ltd (2010)
4047 at 22 and 23 and PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126 at
30, PAC LNG International Ltd v. SPI (208) Ltd (2014) N5681 [24], Ramu Nico
Management (MCC) Ltd v. Tarsie (2010) $C1075 [53].
1am mindful that | am not dealing with the merits of the applicant's substantive
claim under which he is claiming the interim relief. Having heard arguments of both
counsel on the issues in the application for interim relief, | make some preliminary
findings for purpose of determining the interlocutory application before me, as
follows:(1) The MRPC was established by agreement between the governments of PNG and
Australia.
(2) On 26 April 2016 the Supreme Court found the detention of asylum seekers held
at the MRPC was unconstitutional and illegal and ordered the closure of MRPC by
the governments of Australia and Papua New Guinea
(3) Both the governments of PNG and Australia, by agreement, closed the MRPC on
31" October 2017 at 5:00pm in compliance with the order of the Supreme Court.
(4) In closing the MRPC, the governments of PNG and Australia discontinued
supplies of food and drinking water, electricity, food, sewerage facilities,
medical services, security and other services; and required the asylum seekers to
vacate the MRPC and move into the three new Centres. The asylum seekers were
told that if they chose not to leave the MRPC and move into the three Centres,
they would do so at their own peril and would have to fend for themselves.
(5) The new transit Cntes are situated some distance away from MRPC. They are the
East Lorengau Transit Centre (ELTC) that has facilities to hold up to 400 asylum
seekers who have been determined to be genuine "refugees", the West
Lorengau Transit Centre (WLTC) that can hold over 200 asylum seekers
determined to be genuine "refugees" and the Hillside Haus Transit Center (HHTC)
that can hold up to 200 asylum seekers determined to be "non-refugees". These
facilities offer reasonable accommodation of good quality with access to basic
services including medical services and necessities of life including a fortnightly
living allowance of K280.00 per asylum seeker. The asylum seekers are free to
move about to and from the transit centres and to travel anywhere within PNG.
(6) The three new Centres were built by the PNG Government with assistance from
the Australian government.
(7) At the time of its closure, the exact number of asylum seekers accommodated at
the MRPC is not clear, however it is estimated at between 600-800.
(8) Since the closure of the MRPC, it is not clear as to the exact number of asylum
seekers that have left the MRPC and moved into the new Centres and how many
have refused to move out of the MRPC. The evidence is that some are
accommodated at the three new Centers whilst a large number of asylum
seekers remain at the MRPC.(9) The applicant in these proceedings was determined to be a genuine refugee. He
has refused to move out of the MRPC and take up residence at ELTC or HHTC for
reasons which are referred to in paragraph 4 hereof.
(10) The continued presence of the asylum seekers is on the invitation of the PNG
Government under exemption of entry requirements under the Migration Act
granted by the Minister for Immigration in 2013 and on conditions that allow for
the PNG Government to take responsibility over their presence and movement
within PNG and for the PNG Government to determine their refugee status and
take responsibility to settle the asylum seekers. Whilst they remain in PNG, the
asylum seekers are subject to PNG laws and under PNG government control.
8. What is not clear and | am unable to make any definitive and conclusive finding on
the question whether the PNG Government takes sole responsibility, legally
speaking, to cater for the future welfare of the asylum seekers after the closure of
the MRPC. There is no easy answer to this question as the question involves
consideration of a wide range of matters, some of which involve consiuderation of
relevant international conventions of asylum seekers that are apply to PNG. In the
absence of any conclusive determination by this Court of PNG's international
obligations for asylum seekers living in PNG, | am in no better position to make any
definitive findings in that regard. The same is said of Australia's obligations under
international law to the extent that Australia may have some responsibility over
asylum seekers that were destined for Australia but redirected to PNG to process
their refugee status on PNG soi
9. It seems clear from the thrust of my preliminary finding set out is paragraph 7 (10)
above, that the Australia's legal responsibility over the future welfare of the asylum
seekers ended with the closure of MRPC which it operated, and it falls squarely on
the government of PNG to take full responsibility over the future welfare of the
asylum seekers. The PNG Government is duty-bound to take all necessary steps
under its obligations under the Migration Act and its obligations under international
law to cater for the future welfare and destiny of asylum seekers. Australia's
involvement in terms of any assistance it may provide to the PNG Government under
any mutual arrangements remain largely if not purely a moral responsibility, given
that the asylum seekers were Australia-bound when they were redirected to PNG for
PNG assistance to process their refugee status. The PNG Government, a sovereign
nation, in its own right and with its eyes wide open, accepted full responsibility in
the first place to accept these asylum seekers to enter PNG and it is duty-bound
under domestic and international aw to complete the task in settling their future
appropriately in accordance with law. When this point is understood and accepted
by everyone concerned and especially the asylum seekers, then it really may not10.
11.
matter which transit accommodation facility situated in PNG or on Manus Island the
asylum seekers are accommodated. There is little to no advantage to be gained by
any asylum seeker on insisting on remaining at MRPC because Australia's
involvement in maintaining the MRPC has ceased. The new facilities must be of
reasonable standard and asylum seekers living in those facilities are appropriately
treated having regard to their quality of human life and human dignity. Matters of
costs and practical convenience for the government of PNG, security and safety of
asylum seekers and the freedom to move about freely and enjoy life are matters for
the government to consider and cater for. It is ironic though that one transit centre
has closed and new transit centres have opened on the same Island and it remains to
be seen whether the new facilities do in fact offer the services and free environment
that the second respondent say they do. However the impression | have formed
from seeing pictures of new the facilities is that appear to be of good quality.
With regard the application for interim relief, | am satisfied that the government of
PNG with the assistance of the Australian government have provided alternative
accommodation at three sites outside the MRPC compound, that allows for free
movement and access by the asylum seekers, that the services provided are of good
standard and that the allowances paid to the asylum seekers are sufficient for their
daily sustenance. There is no real good reason why they should not voluntarily move
to those new facilities. The security and safety concerns, the intimidation and
harassment complained of, cuts to services in water and food and the like in the
closed MRPC occurred in the process of closing the MRPC. These are the sorts of
things that are normally expected in a situations like the current situation where the
MRPC has been closed under compulsion of a Supreme Court order and asylum
seekers are required to vacate the MRPC and move into new facilities that are built
purposely to afford the free exercise of their Constitutional rights. If the asylum
seekers suffered any injury from those actions taken by the officers employed by the
governments of PNG or even Australia, the asylum seekers’ remedy lies in damages.
| am persuaded that some of the Constitutional rights under the provisions of the
Constitution may have been breached in terms of withdrawal of basis services
including food and drinking water and medical services, threat and intimidation to
their person and that those are likely to continue as long as the asylum seekers
remain in the closed MRPC. On the one hand, it is fair to say that the asylum seekers
have brought those upon themselves in refusing to vacate the premises and move
into the new transit centers. It is in the applicant’s own interest that he leaves the
closed MRPC facility and move into ELTC or HHC because he has been granted
“refugee status’. On the other hand, those breaches or imminent breaches have
occurred out of the government's heavy handed tactics to pressure and force the
asylum seekers out of the closed MRPC. | am satisfied that the applicant's remedy forthe breach of his Constitutional rights lies in damages. In all the circumstances, the
balance of convenience favours respondents more so than the applicant.
12, For the foregoing reasons, the application for interim relief is refused.
Lomai & Lomai Lawyers: Lawyers for the Applicant
Bradshaw Lawyers: Lawyers for the Second Respondent