ON Friday 9th June 2017 two officers from Office of Immigration and Citizen Service traveled to Kokopo to serve a Notice of Cancellation of Entry Permit and Direction of Custody and Removal Order on a Mr. Douglas Tennent, a layman missionary and lawyer for the Archdiocese of Rabaul.
The immigration officers were acting on the instructions from the Acting Chief Migration Officer Mr Solomon Kantha who in turn was acting on the instructions of Minister of Foreign Affairs and Immigration and Member for Wapenamanda Open Rimbink Pato.
Mr. Kantha's letter dated on 8th June 2017 to Mr. Douglas Tennet was in the following terms:
"I write to advise you that the Minister of Foreign Affairs & Immigration Hon. Rimbink Pato has signed instruments for the Cancellation of your Entry Permit and Direction as to Custody and Removal Order for you consistent with Section 6, 12, and 13 of the Migration Act"
"This consequently means you no longer hold a valid entry permit or visa to remain in the country lawfully and must leave the country immediately..."
"Should you fail to comply with this instruction you are subject to be detained and removed involuntarily. "
"The cancellation of your entry permit by the Minister is due to the blatant abuse of the conditions of your Special Exemption/Religious Worker visa engaging in sensitive landowner issues in East New Britain Province."
On Sunday 11th June 2017 Mr. Tennent was picked up immigration officers in Kokopo and taken to Port Moresby to be deported out of the country.
On Monday 12 June 2017 the National Court of Kokopo issued stay order preventing Mr. Tennent's detention and deportation.
On the same day Mr. Tennent was escorted to Jackson's International Airport and checked in on 1:35pm Quantas flight to Brisbane.
It is claimed that at 12:40pm prior to Mr Tennent's departure a lawyer representing Mr. Tennent together with a Fr Victor Roche served a copy of the National Court Stay order on an Immigration Officer at the airport.
It is also claimed that at 1:15pm the Archbishop Mathew Vayalunkal spoke to Acting Chief Migration Officer Mr. Kantha at the Airport serving him a copy of the Stay Order. Archbishop Vayalunkal requested Mr. Kantha exercise his powers to prevent Mr. Tennent from being deported.
It is claimed Mr. Kantha declined the Archbishop's request on the grounds the Mr. Tennent had already boarded the flight and there was nothing he could do. Mr. Kantha advised that Mr. Tennent may apply for a new visa to return to PNG while in Australia.
So was Mr. Tennent deportation lawful??
The short answer in my view is NO.
To deport a person without giving them the right to be heard is breach of natural justice - a fundamental constitutional right provided for under the Constitution.
Natural Justice is defined by the fact that every person is entitled to a fair hearing to defend the allegations against them without bias.
In this case Mr. Tennent was served his deportation notice on Friday afternoon notifying him that the Minister of Foreign Affairs & Immigration had cancelled his entry permit on grounds he allegedly blatantly abused the conditions of his Special Exemption/Religious Worker visa by engaging in sensitive landowner issues in East New Britain Province.
However the Minister failed to afford Mr. Tennent the opportunity to be heard by formally responding to the allegations made against him to justify the cancellation of his entry permit (visa).
The lawful process would have been for the Minister or Chief Migration Officer to write to Mr Tennent notifying of the allegations made against him and afford him the opportunity to respond in writing to confirm or deny the allegations.
Of course even if Mr. Tennent was afforded the right to be heard and the Minister or Department still sought to deport him he could still challenge the decision on appeal or a Court if he believed his actions were not a breach of his visa conditions and his deportation was politically motivated.
In this case no right to be heard was afforded to Mr. Tennent therefore the decision to cancel his permit and deport him was unlawful. Even if the grounds were found to be genuine to justify his deportation the lawful procedure was not complied with.
Mr. Tennet's permit was cancelled under Section 6 of Migration Act - however that provision states a committee of review may recommond that the revocation of a cancellation of an entry permit and not the Minister.
The Minister may only act on the recommendations of Review Committee to cancel a persons permit.
So now what?
Well on the assumption the Immigration Officer was served National Court order preventing Mr. Tennent deportation then in my view that officer is guilty of contempt of court. If the same officer notified the Chief Migration Officer of the Court Order then he would also be guilty of Contempt of Court.
Mr. Tennent reserve the right to file contempt proceedings against them both.
Now while the Mr. Kantha who was allegedly served a copy of the Court Order by the Archbishop and ordered to comply with but claimed they was nothing he could do - the issue will be did he do everything within his power to stop the deportation of Mr. Tennet.
For example did he contact the traffic control tower to contact the pilot - if not then in my view he would also be guilty of contempt of court.
The orders of court were expressed in the following terms.
- removal order (deportation order) is stayed (stopped) forthwith (effective immediately)..
- direction of custody against Mr Tennent by Minister is stayed pending the determination of the Court proceedings challenging his deportation
- Mr. Tennent be released from custody or detention forthwith until the court makes a determination.
- Air Nuigini and all other Airlines are restrained forthwith from transporting Mr. Tennent out of the country without his consent.
I note there is an issue missing from the Court order and that is a stay order against the decision to cancel Mr Tennet's visa. It seems his lawyer left this important issue out when he drafted the orders.
So what would I do?
Instruct Mr. Tennent's lawyer to make an application to amend the orders to state the decision to cancel his permit is also stayed and stay from any airlines refusing to upload him back into the country.
This would give effect to his visa still being valid - because technically its not until he court issues a formal stay against its cancellation.
I would then serve a copy of the amended order on the Minister, Chief Migration Officer, Air Niugini CEO including Operations Manager.
I would then advise Mr. Tennent to catch the next flight back into PNG. If he is refused to be uplifted by Air Niugini or denied entry by Chief Migration Officer or any other officer at the Jackson's International Airport then they would all be liable to be charged for contempt of court.
If Mr. Tennent was deported for his involvement in assisting landowners in East New Britain over sensitive land issues then I would kindly suggest he and the landowners inform me of issues they are pursuing so I may taken an interest in the matter. To also find out who was behind the deportation and has influence over a senior Minister to direct a catholic missionary be unlawfully detained and deported.