Parts V and VI of the Employment of Non-Citizens Act 2007 govern the application and the decision.
Section 18 — who applies, and when
(1) An employer, prior to engaging a non-citizen in any occupation, shall make an application for a work permit.
(2) A self-employed non-citizen, before commencing in any occupation, shall make an application for a work permit.
Two points. The obligation is on the employer, not the worker — and it is expressed as “shall”. And it must happen before the engagement, which is why section 6 makes employing without a valid permit an offence carrying a fine up to K20,000.00.
Section 19 — the non-citizen must be outside the country
A work permit shall not be granted unless the non-citizen, or self-employed non-citizen, is outside of Papua New Guinea at the time of granting.
Where (a) there is already a valid work permit in respect of the non-citizen, and (b) an application for another work permit has been made in respect of that person, a permit may be granted whether or not the person is inside or outside Papua New Guinea.
So a person already lawfully working under a permit may obtain a further permit without leaving. Someone whose permit has already lapsed cannot rely on section 19(2) — which is why the bridging work permit under section 23, and the 60-day continuation on renewal under section 27, matter so much. Both depend on acting before expiry.
Section 20 — what the application must contain
(a) be in the prescribed form;
(b) contain the prescribed particulars;
(c) be accompanied by such documents as are prescribed;
(d) be accompanied by a notification of the place of origin, to which place the employer is liable under Part X for the repatriation of the non-citizen and dependants on termination; and
(e) be accompanied by the prescribed non-refundable fee.
The place of origin is defined in section 3 as a town or city in a country to which the non-citizen has right of entry and residence. Naming it in the application fixes the destination, and therefore the cost, of the employer’s repatriation liability under Part X. Employers should treat it as a commercial term and record it; non-citizens should check it is a place they can actually return to.
Under section 20(2) the Secretary may request further or better particulars and documentation. And under section 21, an application is deemed to be made only when the Secretary accepts it as complete and correct — which is when the decision clock starts.
Section 60 allows the Secretary to require that any application, statement, representation or information be certified by a Justice of the Peace or Commissioner for Oaths, or verified by statutory declaration.
Preconditions the Secretary must be satisfied of
| Section | Requirement |
|---|---|
| 12 | The occupation is not reserved for citizens — see reserved and advertised occupations |
| 13 | If the occupation must be advertised, that has been done and there is no suitable citizen who can be employed in it |
| 15 | Qualifications, skills and experience, where the Secretary directs or the Regulation prescribes |
| 16 | Written proof of professional registration, where registration is required by law for the occupation |
| 17 | Proficiency in English, Pisin or Hiri Motu — unless there is good cause or it is in the national interest |
| 19 | The non-citizen is outside the country, unless section 19(2) applies |
Section 22 — the decision, and the 42 days
(1) The Secretary may grant or refuse an application.
(2) Written notice of the grant or refusal shall be given to the applicant within 42 days of the making of a complete and correct application.
(3) Where an application is refused, or a permit is granted in terms other than those applied for, the notice shall state the grounds.
The 42 days run from the date the application is accepted as complete and correct under section 21 — not from the date it was lodged. Getting the application right first time is therefore the fastest route.
Section 22(4) to (7) — the appeal to the Minister
An employer or self-employed non-citizen aggrieved by a decision under section 22(3) may, within 14 days of receipt of the notice, appeal to the Minister.
The appeal shall be in writing, specify the grounds, and be accompanied by the prescribed non-refundable fee.
The Minister shall obtain the Secretary’s recommendation, consider the merits, and within 28 days of receipt: decide the appeal; advise the appellant and the Secretary in writing of the decision and the reasons; and, if granted, give the Secretary an appropriate direction — which the Secretary shall comply with.
The clock runs from receipt of the notice. Record the date the notice arrived. Because section 22(3) requires the notice to state the grounds, the grounds are the material for the appeal — address each of them specifically.
Note who may appeal: the employer or the self-employed non-citizen. A non-citizen employee has no appeal of their own against a refusal under section 22, though they do have one against cancellation under section 31(5).
A statutory decision-maker exercising these powers is subject to section 59 of the Constitution — the principles of natural justice, the minimum requirement being the duty to act fairly and, in principle, to be seen to act fairly — and to section 41. The statutory duty to give reasons in writing is what makes review possible.
Application checklist
- Check the occupation is not reserved, and whether it must be advertised.
- Assemble the evidence — qualifications, experience, professional registration, language.
- Fix the place of origin for repatriation, and record it.
- Lodge before engaging the non-citizen — section 18 requires it.
- Make sure the worker is outside the country at the time of grant, unless section 19(2) applies.
- Pay the prescribed non-refundable fee.
- Confirm the acceptance date as complete and correct — the 42 days run from it.
- If refused, read the grounds and appeal within 14 days, in writing, with the fee.
- Remember section 54 — a permit does not relieve anyone from compliance with any other law, and such compliance is a condition of every permit.
Sources
- Employment of Non-Citizens Act 2007 — ss 3, 6, 12–23, 27, 31, 54, 60
- Migration Act (Chapter 16)
- Constitution — ss 41, 59
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.