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Ayamiseba v Attorney General [2006] VUSC 21; CC 012 2006 (7 April 2006)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)


Civil Case No.12 of 2006


BETWEEN:


ANDY AYAMISEBA
Claimant


AND:


ATTORNEY GENERAL
First Defendant


AND:


THE PRINCIPAL IMMIGRATION OFFICER
Second Defendant


Coram: Justice H. Bulu


Counsels: Mr. Felix Laumae for the Claimant
Solicitor General Dudley Aru and Mr. Loughman for the Defendants


Date of Hearing: 22 February 2006
Date of Decision: 7 April 2006


JUDGMENT


INTRODUCTION


  1. The Claimant entered Vanuatu in 1983 with the famous Black Brothers Band at the invitation of the Government at that time. However, in 1988 they were deported to Australia in the "interest of national security and internal political stability".
  2. Since 1998 the Claimant has made several trips to Vanuatu after his name was removed from the list of persons prohibited from returning to Vanuatu. Each entry into Vanuatu was made possible with an Australian Travel Document.
  3. In 2001 he again entered Vanuatu on an Australian Travel Document Type P Number U7500731. His citizenship on the Document was stated "unspecified". It is not a passport but a document that enabled the Claimant to travel to Vanuatu on. That Document was issued on 26 March 2001 and expired on 26 March 2003.
  4. On 9th March 2002 the Claimant was issued with a Vanuatu Diplomatic Passport No. D.000098, but this was later removed from him in February 2005.
  5. On 9th November 2005 the Immigration Department through the Foreign Affairs Department requested the Claimant to apply for a residency permit. He applied accordingly. However, he failed to state that he had once been deported from Vanuatu, as is required of him to do so.
  6. Since the expiry of his Australian Travel Document and the withdrawal of the Vanuatu Diplomatic Passport, the Claimant continued to reside in Vanuatu without a residence permit.
  7. On 9th February 2006, the Minister of Internal Affairs issued a Removal Order removing the Claimant from Vanuatu and to remain outside Vanuatu "for a period of 10 years".
  8. The Police served a copy of the Order on the Claimant at approximately 22:15 hours on the same day, 9th February at his home in Nambatu Lagoon, Port Vila.
  9. Upon being served with the Order, the Claimant read it and returned it to the Police who then placed the Order on a table in the house.
  10. The Police gave him some time to get ready and then escorted him to the Bauerfield International Airport. They placed him on an Air Vanuatu flight that left Port Vila about 22.45 hours.
  11. On arrival in Honiara, the authorities there would not permit him to enter.
  12. He travelled on to Brisbane, Australia on that same Air Vanuatu flight. In Brisbane the Australian authorities would not permit him to enter. He continued on the same flight back to Port Vila and was held at the Airport. He was not allowed to get out of the Airport.
  13. About 4.30 p.m. on 10th February 2006, Mr. Laumae on behalf of the Claimant made an urgent application under rule 7.6 of the Civil Procedure Rules for a restraining order to stay the removal order made by the Minister on 9 February, 2006 removing the Claimant from Vanuatu. The Solicitor General, Mr. Dudley Aru, appeared on behalf of the State.
  14. The Court issued orders on the same day suspending the Removal Order dated 9 February 2006 until Wednesday 15 February 2006.
  15. The Court further issued directions for Mr. Laumae to file his Judicial Review Claim by 11.30 a.m. on 13 February 2006 plus any other applications, and Mr. Aru, on behalf of the State to file his response by 11.30 a.m. on 15 February 2006.
  16. Hearing of the Claim for Judicial Review was listed for 5.00 p.m. on 15 February 2006.
  17. On an application by Mr. Laumae on 15 February 2006 the hearing of the Claim for Judicial Review was adjourned to 17 February 2006 at 5:30 pm.

Claim for Judicial Review


  1. About 4.00 p.m. on 13 February 2006 the Claim for Judicial Review plus sworn statement of the Claimant and undertaking as to damages by the Claimant were filed with the Court.
  2. In the Claim for Judicial Review the Claimant claims:-

"(a) a quashing order against the Decision made by the Honourable Minister of Internal Affairs George Wells dated 9 February 2006 removing the Claimant from the Republic of Vanuatu.


(b) an order prohibiting the Honourable Minister of Internal Affairs George Wells from removing the Claimant from the Republic of Vanuatu.

(c) Cost of and incidental to this action.

UPON THE GROUNDS:-


(1) That the Claimant is a West Papuan refugee and one of the representatives of West Papuan group fighting for their independence from Indonesia and was invited to the country by the government.

(2) That government has support and facilitates West Papuan office in Vanuatu.

(3) By order of removal signed and dated 9th February 2006, the Honourable Minister of Internal Affairs George Wells order deportation of the Claimant from the Republic of Vanuatu for a period of ten (10) years. The removal order reads as follows:-

"REPUBLIC OF VANUATU


IMMIGRATION ACT [CAP. 66]


Removal from Vanuatu


Order No. of 2006


In exercise of the powers conferred on me by paragraph 17 (A) (1) (a) of the Immigration Act [CAP. 66], I, Honourable George WELLS, Minister of Internal Affairs make the following Order:-


  1. Removal from Vanuatu

Mr. ANDY AYAMISEBA is to be removed from Vanuatu for a period of 10 years commencing from the date on which this order is made.


2. Commencement


This order commences on the day on which it is made.


Made at Port Vila this 9th day of February 2006.


Honourable George WELLS

Minister of Internal Affairs."


(4) The said removal orders were and are in breach of the Constitution and/or principal of natural justice and fairness. Such the Honourable Minister of Internal Affairs George Wells has breached the principle of natural justice and fairness when he issued the orders in that:-

(5) As the person holding public office and exercising public function, the Honourable Minister of Internal Affairs is bound by the principle of Natural Justice and Fairness when exercising public function as far as it affects and limits rights and legitimate interest of any person including the Claimant.

(6) In the event the orders are withdrawn in any event the Government has threatened to re-issue any further removal order.

(7) The Honourable Minister of Internal Affairs George Wells is a futile order because:-

(8) Further grounds as the Claim reserve may advance in course of the application."

ISSUES


  1. The main issue arising for the determination of the Court in this proceeding is whether the Claimant, a non-citizen, is entitled to natural justice under Article 5 of the Constitution.

SUBMISSIONS BY THE CLAIMANT


  1. Mr. Laumae on behalf of the Claimant submitted that the Removal Order of 9th February 2006 by the Minister of Internal Affairs, Honourable George Wells removing the Claimant from Vanuatu for a period of 10 years is unlawful as it is in breach of the Constitution and the principles of natural justice and fairness in that:-
  2. Mr. Laumae also submitted that the Removal Order was a futile order as it attempted to deport a stateless person.
  3. Mr. Laumae continued that the decision of the Minister in invoking section 17A (1) (a) of the Immigration Act is unreasonable in the circumstances. It has been a fundamental principle of public and administrative law that statutory discretion of Ministers must be exercised reasonably. Failing that, a Minister’s action or omission will be subject to a judicial review. The case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] LKB 223 was cited as authority for the proposition.
  4. Firstly, that it is arbitrary and lacks reasonable supporting evidence. The decision to issue the order was based on his opinion that the Claimant was involved in activities detrimental to national security and public order. There is lack of reasonable supporting evidence to give weight to an informed opinion. It is clear on the evidence that the decision was based on opinion wholly influenced by political factors, hearsay and speculation, thus denying the Minister any opportunity to direct himself properly in law. The Claimant relied on the principle formulated by Lord Green MR of the Wednesbury Principle and adopted in Re the Constitution, Dinh Van Than v. The Minister of Finance [1997] VUCA 6. The principle:-

"a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to matters which he is bound to consider ... (and) exclude from his consideration matters which are irrelevant to what he has to consider." pp 229 – 230.


  1. In Dinh Van Than it was formulated as a test to determine whether a decision taken was a decision which in law was reasonable and one which a rational Minister in the circumstances could have reached.
  2. Mr. Laumae continued that, when applying that test to the present case, the answer must be in the negative.
  3. Secondly, that the Minister was acting upon unreasonable apprehension. Mr. Laumae submitted that the decision of the Minister was driven by a misapprehension that the Claimant will continue to be involved in political activities that are detrimental to national security or public order. At that time of the issuance of the order, there were no situations of public disorder or imminent threat to national security caused either directly or indirectly, by the Claimant to warrant his immediate or hasty removal from the country without respect to his rights protected by the principles of natural justice and the Constitution. Had the Minister acted reasonably and in good faith, he would have given the Claimant the opportunity to respond by invoking section 17 of the Immigration Act instead. The statement of Bruce J. in Dinh Van Than is cited as authority where he said "an opportunity for a response must be provided to ensure that a Minister was not acting upon a misapprehension or incorrect information or failing to fully appreciate a circumstance of relevance." p. 6.
  4. Mr. Laumae further submitted that section 17 A under which the Order for removal was made, in the absence of any express provision therein, is not an absolute restriction so as to completely preclude the application of the principles of natural justice and fairness. Parliament legislates for a democracy founded on the principles and traditions of the common law system from which the principles of natural justice and fairness originated. As rightly pointed out by d’Imecourt J in In re the Constitution; Timakata v. Attorney General [1992] VUSC 9:-

"it is well to bear in mind yet again, that the Constitution of Vanuatu came into effect as relatively recently as the 30th July 1980, at a time when these fundamental rules of natural justice were well and truly anchored into the common law system of this country, as at that time it was part of the British Dominion."


  1. Thus, Mr. Laumae argued the Constitution and all legislations when interpreted and applied need to be approached on that assumption unless a clear and specific provision to the contrary can be established. It is submitted that the statement of Lord Steyn in R. v. Secretary of State for the Home Department Ex parte Pierson [1997] UKHL 37; [1998] AC 539, provides good guidance to the interpretation of legislations made by Parliament:-

"Parliament does not legislate in a vacuum. Parliament legislates for a ... democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption has only prima facie force. It can be displaced by a clear and specific provision to the contrary (p. 587)."


  1. Similarly, in Fairmount Investment Ltd. v. Secretary of State for the Environment [1976] 1 WLR 1255 1263, Lord Russell puts it that "It is to be implied, unless the contrary appears, that Parliament does not authorize by the Act the exercise of powers in breach of the principles of natural justice." p. 1263.
  2. The question therefore it is submitted is whether section 17 A is a "clear and specific" provision that restricts the rights of the Claimant under the Constitution thus, the application of the principles of natural justice? Restricting the application of the principles of natural justice is tantamount to restriction of the Constitutional rights of the Claimant, one of which is the right to the protection of law, it is argued. It is thus wrong to separate the principles of natural justice from the Constitutional right of the Claimant to the protection of the law. The statement affirmed by d’Imecourt J. in In re the Constitution Timakata v. Attorney General (above) provides good rationale, as "there is no reason to restrict the ambit of the protection accorded by the phrase ‘protection of the law’ to that which is protected by the rules of natural justice." This can be further supported with the statement of Lord Diplock in Ong Ah Chuan v. Public Prosecutor (1980) 3 WLR 855, in which he made reference to "protection of law" as "In their Lordships view, incorporates those fundamental principles of natural justice."
  3. Section 17A (2) states that "The Minister does not need to give any notice for the removal of this person from Vanuatu." It is further submitted for the Claimant that the phrase "does not need to give" differs in effect from the more obligatory or mandatory phrase "shall not be required to give". As such, when given such fair and liberal construction and bearing in mind the incorporation of the principles of natural justice into the right to protection of the law, the provision is only directory and not peremptory in nature. A provision of a peremptory nature, when stated in the negative, would in absolute terms prohibit the Minister from giving notice to the Claimant. Subsection (2) is only directory, the effect of which would still oblige the Minister by implication to give notice where circumstances so require, and which in fact should have been the case in this present situation. Further, Mr. Laumae on behalf of the Claimant argued that, section 17A(1) does not even specify a time within which such removal must be effected. For instance, words to the following effect "shall be removed immediately" or "shall, within 24 hrs of notice, be removed" may provide adequate justification for the actions of the Minister. There is absence of any such words or phrase in section 17A, and as such, subsection (2) is only directory.
  4. The fundamental rule deduced from his Lordship’s reasoning is that the rules of natural justice must be implied in every Act of Parliament. Accordingly, any restriction that purports to remove those principles is unreasonable and repugnant to the Constitution, submitted Mr. Laumae.
  5. It is also said for the Claimant that it is an implied obligation in every Act of Parliament to make enquiry and that also includes the implied obligation to notify where the latter is not expressly prohibited. It was therefore submitted that given the mere directory nature of subsection (2), the Minister has failed to notify the Claimant in breach of an implied obligation. Thus, the Claimant has been unlawfully denied the right to be notified, respond and be heard.
  6. It is further submitted on behalf of the Claimant that any restriction that completely and totally removes the constitutional rights of a person and precludes the application of the principles of natural justice is totally oppressive, absurd and repugnant to public policy and spirit of the Constitution. Restrictions imposed by law on non-citizens need to be fair, just and reasonable in the circumstances, lacking of which they are transgressions of the fundamental rights of non-citizens residing in the country. It is inconceivable assuming the intention of the framers of the Constitution to allow for the promulgation of restrictions that are undemocratic within a country proclaimed to be a democratic state. Accordingly, it is submitted that section 17A is a gross transgression of and interference with the Claimant’s constitutional rights and that his rights protected by the Constitution have been breached.
  7. It was further submitted that given the unreasonableness of the restriction imposed by section 17A of the Act and the manner in which it was applied, the Claimant’s constitutional rights were not extinguished at the time of issue of the Order.
  8. The Minister’s primary contention was that the Claimant has been actively involved in internal politics. Other than the prohibition not to vote as implied from Article 4 (2) of the Constitution, there is absence of any law that prohibits or defines activities or the extent to which the action of a non-citizen amounts to political involvement. In the absence of any such restriction as required by the Constitution, the right to political opinion, freedom of expression, and freedom of association are those which the Claimant can still enjoy should he wishes. His mere association with local politicians (whom he called "personal friends" ) cannot be seen outright as a threat, whether real or imminent, to national security or public order.
  9. Whilst Parliament has already provided for the removal of non-citizens under section 17 of the Immigration Act, it has yet again provided for the same matter under section 17A, thereby creating an inconsistency or conflict between the two provisions further submitted Mr. Laumae. Section 17 is already a restriction that satisfies the requirements of the Constitution and more reasonable in approach to ensure the principles of natural justice ‘incorporated’ into the fundamental rights provisions are respected and maintained. The very same reasons enumerated under section 17A(1) are the same reasons that can be stated by the Minister under section 17A(1)(a) of the Act. On its face, section 17A is more than just a restriction as it is manifestly unjust and utterly unreasonable "as to find no justification in the minds of reasonable men" (Kruse v. Johnson above). The circumstances then existing prior to or at the time of removal of the Claimant does not warrant its application to the Claimant.
  10. In the event of inconsistency in principle, although the rule remains that the latter provision prevails, this is an exception on the ground of reasonability. As such, since section 17A is unreasonable, oppressive, manifestly unjust, and disclosed bad faith, section 17 remains paramount and more important to the object and purpose of the Act. This approach submitted Mr. Laumae receives support in numerous authorities including Re Marr [1990] All ER 880 in which the Court held the inconsistency between the two provisions of the same Act will be resolved by giving precedence to that which is more important for the purpose of the Act. Accordingly, Mr. Laumae submitted that the Removal Order issued under section 17A is null and void.
  11. For all those reasons Mr. Laumae finally submitted on behalf of the Claimant that:-

DEFENDANT’S SUBMISSIONS


  1. The defence case is that:-
  2. Section 17 of the Act allows for removal of a person whether or not he is unlawfully present in Vanuatu. Subsections 17 (1A), (1B) and (1C) provide for the Minister to give the person notice of certain matters, for the person to make representations to the Minister, for the Minister to consider the representations and if any order is made, for the Minister to record the decision in writing and the reasons for making the order. A copy of the order and the reasons must be given to the person. Therefore where a person is removed under section 17 of the Act, natural justice is accorded to him or her.
  3. On the other hand, section 17A (1) of the Act provides for the removal from Vanuatu of a person who is a non-citizen if in the opinion of the Minister, the person is involved in activities that are detrimental to national security, defence or public order, or is a wanted person in a foreign country for any criminal offence he has committed in that foreign country. Where the Minister makes an order under subsection (1) for the removal of a person, subsection (2) says that the Minister does not need to give any notice for the removal of that person from Vanuatu. Subsection (3) provides that this section applies notwithstanding any other provisions in this Act.
  4. Article 5 (1) of the Constitution provides that the fundamental rights and freedoms of the individual set out therein are subject to any restrictions imposed by law on non-citizens. The defendants submitted that section 17A of the Act is a restriction imposed by law on non-citizens in accordance with or pursuant to, article 5 of the Constitution. Assuming that the principle of natural justice and fairness is covered by Article 5 (1) (d) – protection of the law – the defendants submitted that this does not apply where there is a restriction imposed by law on non-citizens. Therefore, the defendant’s submitted that there is no breach of the Constitution nor the principle of natural justice in relation to the Removal Order for the removal of the Claimant under section 17A (1) (a) of the Act.
  5. The Minister made the Order under section 17A (1) (a) of the Act. It is lawful as the Claimant is a non-citizen who in the opinion of the Minister is involved in activities that are detrimental to national security and public order. This was confirmed by the Minister in his own sworn statement.
  6. Evidence for the Claimant’s involvement in activities detrimental to national security is provided in the following sworn statements filed for the defendants:-
  7. By his own admission in his sworn statement filed on 14 February 2006, the Claimant deposes at paragraph 8 (the first such numbered paragraph) that he has been actively lobbying, by inference, Members of Parliament in relation to the private sponsored West Papuan Motion to be tabled in Parliament. George Bogiri’s sworn statement shows that the Claimant’s lobbying of Members of Parliament was not restricted to the West Papuan Motion but extended as far as lobbying for motions on non-confidence against the current government. This is confirmed by the sworn statement of Peter Sakita, Second Political Advisor, to the Minister of Internal Affairs. This amounts to an activity detrimental to national security.
  8. Evidence for the Claimant’s involvement in activities detrimental to public order is provided in the sworn statement of Arthur Caulton Edmanley, Acting Commissioner of Police filed for the defendants.
  9. Finally, paragraph 17A (1) (a) of the Act is good law as when the Act was amended in 2004 by the insertion of section 17A, the President did not refer the amendment bill to this Honourable Court for its opinion as provided by Article 16 (4) of the Constitution.
  10. The Defendants continued that the Removal Order does not breach the Constitution and/or the principle of natural justice and fairness as it is made under paragraph 17A (1) (a) which in the defendant’s submission is a restriction imposed by law on non-citizens. The Claimant is a non-citizen and Article 5 (1) of the Constitution provides that the fundamental rights and freedoms of the individual set out therein are subject to any restrictions imposed by law on non-citizens.
  11. The Defendants submitted that the Minister did not breach the principle of natural justice and fairness when he issued the Removal Order. The Defendants went on to say that the Minister must notify a person of an order for his or her removal, the reasons why and give him or her an opportunity to make written representations as to why he or she should not be removed from Vanuatu only if the order is made under section 17 of the Act. However, in this matter, the Removal Order was made under section 17A of the Act. Subsection (2) provides that where the Minister makes an order under subsection (1) for the removal of a person, he does not need to give any notice for the removal of this person from Vanuatu.
  12. Further, the Defendants submitted that section 17A of the Act is a restriction imposed by law on non-citizens. Article 5 (1) of the Constitution provides that the fundamental rights and freedoms of the individual set out therein are subject to any restrictions imposed by law on non-citizens. Assuming that the principle of natural justice and fairness is covered by Article 5 (1) (d) – protection of the law – the defendants submitted that this does not apply where there is a restriction imposed by law on non-citizens. Therefore the natural justice principle does not apply such that the Minister must notify the Claimant of his deportation, of the reasons why and give him an opportunity to respond to any allegations made against him for his deportation.
  13. That said, the sworn statements of Hamish Garae and John Tete show that the Claimant was served with the Order on 9 February 2006 before being escorted to the airport by members of the Vanuatu Police Force. In the defendant’s submission, upon service of the Order, the Claimant was notified of his deportation.
  14. That said, it is the defendant’s further submission that any application of the principle of natural justice and fairness to the Minister is subject to Article 5 (1) of the Constitution which provides that the fundamental rights and freedoms of the individual set out therein are subject to any restrictions imposed by law on non-citizens.
  15. The Defendants further submitted that the Claimant is not a refugee. In the defendant’s submission, as a matter of Vanuatu law the Claimant is not a refugee because:-
  16. Similarly, whether or not the Claimant is a stateless person is irrelevant for the purposes of paragraph 17A (1) (a) of the Act, in the defendant’s submission. That provision of the Act applies to non-citizens of Vanuatu. The Claimant is a non-citizen and therefore provided the other elements of that provision are fulfilled, it applies to him. It is irrelevant that he may be stateless or also a non-citizen of other states.
  17. Contrary to what the Claimant asserts, that a person is a refugee as a reason on its own cannot be a ground for preventing his or her removal from Vanuatu. That would be completely contrary to public policy if the Minister could be prevented from ordering the removal of a person from Vanuatu just because the person argues that he or she is a refugee and/or is a stateless person. This would be most detrimental to the national security of the Republic of Vanuatu. The State must be able, under the law, to deal with non-citizens whose activities are detrimental to national security, defence or public order.
  18. The government supports the cause of West Papuan Independence and agreed to the establishment of a West Papuan Office in Vanuatu, however, in the defendant’s submission this is irrelevant to the issues in this matter.
  19. The defendants further submitted that the Order of the Minister is not a futile order because it is valid and lawful, and has not been made in breach of the Constitution and/or the principle of natural justice and fairness.
  20. In the defendant’s submission, there was legal basis for the Minister to make the Order and he exercised his powers under paragraph 17A (1) (a) of the Act to do so therefore the Claimant’s Claim for Judicial Review has no basis and should be dismissed. If the Court were to find against the defendants, the message that would be going out to the wider public is that the State has no power to remove from the country non-citizens whose activities are detrimental to national security and public order and who have no residence permits, have not paid a repatriation bond and who have made false declarations to the Immigration Service but are now living in Vanuatu. This would be totally contrary to public policy.
  21. In relation to the second issue in this proceeding, in the defendant’s submission, the Court should not issue an order prohibiting the Minister from removing the claimant from the Republic of Vanuatu. The Court should not place any fetter on the Minister’s statutory powers to make orders in the future for the removal of the claimant if the situation warrants.

THE LAW


  1. The Relevant Provisions of the Constitution and the Immigration Act are set out below.
    1. Constitution

REPUBLIC OF VANUATU


  1. The Republic of Vanuatu is a sovereign democratic state.

CONSTITUTION SUPREME LAW


  1. The Constitution is the supreme law of the Republic of Vanuatu.

NATIONAL SOVEREIGNTY, THE ELECTORAL FRANCHISE AND POLITICAL PARTIES


4. (1) National sovereignty belongs to the people of Vanuatu which they exercise through their elected representatives.


(2) The franchise is universal, equal and secret. Subject to such conditions or restrictions as may be prescribed by Parliament, every citizen of Vanuatu who is at least 18 years of age shall be entitled to vote.


(3) Political parties may be formed freely and may contest elections. They shall respect the Constitution and the principles of democracy.


CHAPTER 2

FUNDAMENTAL RIGHTS AND DUTIES


PART I - Fundamental Rights


FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL


5. (1) The Republic of Vanuatu recognizes, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health-


(a) life;

(b) liberty;

(c) security of the person;

(d) protection of the law;

(e) freedom from inhuman treatment and forced labour;

(f) freedom of conscience and worship;

(g) freedom of expression;

(h) freedom of assembly and association;

(i) freedom of movement;

(j) protection for the privacy of the home and other property and from unjust deprivation of property;

(k) equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes provision for the special benefit, welfare, protection or advancement of females, children and young persons, members of under-privileged groups or inhabitants of less developed areas.


(2) Protection of the law shall include the following-


(a) everyone charged with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence;

(b) everyone is presumed innocent until a court establishes his guilt according to law;

(c) everyone charged shall be informed promptly in a language he understands of the offence with which he is being charged;

(d) if an accused does not understand the language to be used in the proceedings he shall be provided with an interpreter throughout the proceedings;

(e) a person shall not be tried in his absence without his consent unless he makes it impossible for the court to proceed in his presence;

(f) no-one shall be convicted in respect of an act or omission which did not constitute an offence known to written or custom law at the time it was committed;

(g) no-one shall be punished with a greater penalty than that which exists at the time of the commission of the offence;

(h) no person who has been pardoned, or tried and convicted or acquitted, shall be tried again for the same offence or any other offence of which he could have been convicted at his trial.


ENFORCEMENT OF FUNDAMENTAL RIGHTS


6. (1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.


(2) The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right.


NATURALISATION


  1. A national of a foreign state or a stateless person may apply to be naturalized as a citizen of Vanuatu if he has lived continuously in Vanuatu for at least 10 years immediately before the date of the application.

Parliament may prescribe further conditions of the eligibility to apply for naturalization and shall provide for the machinery to review and decide on applications for naturalization.


POWER TO MAKE LAWS


16. (1) Parliament may make laws for the peace, order and good government of Vanuatu.


(2) Parliament shall make laws by passing bills introduced either by one or more members or by the Prime Minister or a Minister.


(3) When a bill has been passed by Parliament it shall be presented to the President of the Republic who shall assent to it within 2 weeks.


(4) If the President considers that the bill is inconsistent with a provision of the Constitution he shall refer it to the Supreme Court for its opinion. The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution.


ELECTION OF MEMBERS OF PARLIAMENT


17. (1) Parliament shall consist of members elected on the basis of universal franchise through an electoral system which includes an element of proportional representation so as to ensure fair representation of different political groups and opinions.


(2) Subject to such conditions or restrictions as may be prescribed by Parliament every citizen of Vanuatu who is at least 25 years of age shall be eligible to stand for election to Parliament.


LIFE OF PARLIAMENT


28. (1) Parliament, unless sooner dissolved under paragraph (2) or (3), shall continue for 4 years from the date of its election.


(2) Parliament may at any time decide, by resolution supported by the votes of an absolute majority of the members at a special sitting when at least three-fourths of the members are present, to dissolve Parliament. At least 1 week's notice of such a motion shall be given to the Speaker before the debate and the vote on it.


(3) The President of the Republic may, on the advice of the Council of Ministers, dissolve Parliament.


(4) General elections shall be held not earlier than 30 days and not later than 60 days after any dissolution.


(5) There shall be no dissolution of Parliament within 12 months of the general elections following a dissolution under sub article (2) or (3).


COLLECTIVE RESPONSIBILITY OF MINISTERS AND VOTES OF NO CONFIDENCE


43. (1) The Council of Ministers shall be collectively responsible to Parliament.


(2) Parliament may pass a motion of no confidence in the Prime Minister. At least 1 week's notice of such a motion shall be given to the Speaker and the motion must be signed by one sixth of the members of Parliament. If it is supported by an absolute majority of the members of Parliament, the Prime Minister and other Ministers shall cease to hold office forthwith but shall continue to exercise their functions until a new Prime Minister is elected.


2. Immigration Act


Introduction to sections 17 and 17Aof the Act


Power to remove persons from Vanuatu


17. (1) Notwithstanding any other provisions of this Act, the Minister in his discretion may make an order in the form prescribed under this Act that any person, whether or not he is unlawfully present in Vanuatu, shall, on the expiry of 14 days or such longer period as the Minister in his discretion may specify from the date of service of the order on such person or on the completion of any sentences of imprisonment which he may be serving be removed from and remain out of Vanuatu, either indefinitely or for a period to be specified in that order.


(1A) Before making an order under subsection (1), the Minister must give the person notice in writing:


(b) that the Minster proposed to make the order; and

(c) the reasons why the Minister proposed to make the order; and

(d) that the person may, within 14 days – from the date of the notice, make written representations to the Minister stating why the person should not be removed from Vanuatu.

(1B) The Minister must consider the representations before making an order under subsection (1)


(1C) If the Minister makes an order under subsection (1) the Minster must:-


(a) record the decision in writing and the reasons for making the order; and

(b) give a copy of the order and the reasons:

within 48 hours of making the order.


(2) An order make under this section shall be carried into effect in such manner as the Minister in his discretion may direct.


(3) A person against whom an order under this section is made may, if the Minister in his discretion so directs, while awaiting removal and while being conveyed to the place of departure, be kept in prison or in police custody, and while so kept shall be deemed to be in lawful custody.


(4) A person against whom an order under this section is made may, if the Minister in his discretion so discretion so directs, while awaiting removal of the Minister I his discretion, to a place in the country which he belongs, or to any place to which he consents to be removed, provided that the Government of such last mentioned place consents to receive him.


(5) The master of a ship or aircraft which is proceeding to a place to which a person is directed to be removed and who is required by the Principal Immigration Officer to do so shall receive a person against whom a removal order has been made on board the ship or aircraft and upon payment therefore afford him a passage to that place and proper accommodation and maintenance during the passage. Except as provided by section 18, the cost of such passage, accommodation and maintenance shall be paid by the person removed and the Minister may apply any money or property of the person removed in payment of the whole or any part of such cost shall be paid out of the Treasury.


(6) If any master of a ship or aircraft fails to comply with provision of subsection (5) he shall be guilty of an offence and the owner of the ship or aircraft and any agent of such owned in Vanuatu shall be guilty of a similar offence and liable to a similar penalty:


Provided that no person shall be convicted under this subsection if-


(a) he satisfies the court that the necessary accommodation was not available on the ship; or

(b) in the case of an aircraft, the commander had reasonable cause to believe that compliance with the provision of the with the provisions of the said subsection (5) may imperil the safety of the aircraft or any person therein; or

(c) in the case of an aircraft it would be contrary to any law to afford a person such passage as the Principal Immigration Officer may have required under the said subsection (5).


(7) If a person in respect of whom a removal order is made under this section has been sentenced to any term of imprisonment, such sentence shall be served before the order is carried into effect unless the Minister in his discretion otherwise directs.


17(A) Removal of non-citizens from Vanuatu Government


(1) A person who is a non-citizen may be removed by the Minister, by Order, from Vanuatu if in the opinion of the Minister, the person:-


  1. is involved in activities that are detrimental to national security, defence or public order; or
  2. is a wanted person in a foreign country for any criminal offence he has committed in that foreign country.

(2) The Minister does not need to give notice for the removal of this person from Vanuatu.


(3) This section applies notwithstanding any other provision in this Act."


DISCUSSIONS


  1. I have taken some time to carefully go over the submissions, and the authorities that have been submitted in this proceeding.
  2. The main issue arising in this Claim for Judicial Review is whether the Claimant, a non-citizen, is entitled to natural justice as guaranteed by Article 5 of the Constitution.
  3. There are four main grounds that were advanced in the Claim for Judicial Review. I will now deal with each ground in the order in which they are raised.
  1. Claimant is a refugee from West Papua and was invited to Vanuatu by the Vanuatu Government.
  1. The Defendants have denied this claim that the Claimant came to Vanuatu at the invitation of the Vanuatu Government. At paragraphs 5 and 6 of the sworn statement of James Narwayeng, the Acting Principal Immigration Officer, he stated:-

"5. The Claimant was allowed re-entry into Vanuatu in 1998 when his name was removed from the prohibited list of persons barred from the country, and thereafter he made several visits in and out of the country on a visitor’s visa.


  1. On 20th March 2001, the Claimant was issued with an Australian travel document or a titre de voyage when he entered the country. The nationality on the Australian travel document was unspecified."
  2. The Australian travel document was issued on 26 March 2001 and expired on 26 March 2003. This is found in annexure "JN2" to the sworn statement of Mr. Narwayeng.
  3. At paragraphs 5, 6 and 7 of his sworn statement filed on 14th February 2006, the Claimant stated as follows:-

"5. In 1998, the ruling VP splits due to their internal leadership fights and has resulted in Black Brothers and myself and our families being deported to Australia.


  1. I returned to Vanuatu in late 1990’s during Maxime Kalo Korman Prime Ministership and began to reactivate the lobby for the West Papuan cause with different groups of political background.
  2. Later during VP-UMP coalition led government, then Prime Minister Edward Nipake Natapei and his Deputy, Hon. Serge Rialuth Vohor welcoming us to officially return to the country...."
  3. In a further sworn statement filed on 15 February 2006, the Claimant in paragraph 2 stated that he entered the country in 1997 with an Australian travel document to lobby and negotiate support for the struggle for West Papua independence. And in paragraph 5, he repeated the welcome given to him by the then Prime Minister and his Deputy to set up their office in Vanuatu.
  4. I have perused the various sworn statements submitted in this matter but find no evidence that the Claimant was invited by the Government of Vanuatu to return to Vanuatu as claimed. There is evidence from the Claimant himself that sometimes after arriving in 2001 the Government at the time welcomed not only him but also others involved with him in the struggle for the West Papua cause.
  5. The second part to this first ground is that the Claimant claims that he is a refugee. There is very little to be said about this second leg of the first ground. There is no evidence before the Court that he is a refugee or that he had applied to the Vanuatu Government in that capacity for the Government to allow him to remain in this country. On the other hand, there is evidence (see sworn statement of Angeline Saul) that Vanuatu has not enacted any legislation or ratified any international instrument relating to refugees or refugee status.
  1. That Government has support and facilitates West Papua office in Vanuatu.
  1. The Defendants have submitted that the Government supports the cause for West Papuan independence and agreed to the establishment of a West Papuan office in Vanuatu but that this is irrelevant to the issues in this matter. Other than this admission by the Defendants for the support of the office in Vanuatu it is my view that this ground has no relevance at all to the issue of validity of the removal orders of 9 February 2006. There is nothing more to say in relation to this ground.
  1. The removal order of 9 February 2006 is in breach of the Constitution and/or principle of natural justice and fairness.
  1. This is the main issue in this proceeding and the Claimant has approached this issue by firstly submitting that the decision of the Minister in invoking section 17A(1)(a) of the Immigration Act was unreasonable in the circumstances. That by virtue of the Wednesbury principle the Minister when exercising such a discretion must do so reasonably. That in this case the exercise by the Minister of invoking section 17A(1)(a) was arbitrary as there was no reasonable supporting evidence. The Claimant contended that the decision was based solely on "his opinion" (the Ministers) that the Claimant was involved in activities detrimental to national security and public order. The Claimant referred the Court to the principle formulated by Lord Green M R in the case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 which states:

"A person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to matters to which he is bound to consider...(and) exclude from his consideration matters which are irrelevant to what he has to consider."


  1. In Wednesbury the case was about a local authority that granted a licence to the plaintiff for cinematographic performances under the Cinematography Act on Sundays but subject to a condition that no children under 15 years of age should be admitted to the Sunday performances with or without an accompanying adult. The plaintiff was not happy with the condition imposed and appealed the decision. The appeal was dismissed as the Court held that the morale health of children within that age group was a matter that fell within the concerns of the local authority. That case had nothing to do with Constitutional considerations as arises in this case from which section 17A of the Immigration Act emanates from. The circumstance of that case is so different to the circumstances of the present case. No provision as Article 5 of the Constitution was under consideration by the Court. I find that it is of no assistance at all in this matter.
  2. Mr. Laumae on behalf of the Claimant also submitted that the decision to remove the Claimant under section 17A of the Immigration Act was driven by a misapprehension that the Claimant will continue to be involved in political activities that are detrimental to national security or public order. That at the time of the issuing of the order there were no situations of public disorder or imminent threats to national security caused either directly or indirectly by the Claimant to warrant his immediate or hasty removal from the country without respect to his rights protected by the principles of natural justice and the Constitution.
  3. The case of Dinh Van Than was cited in support also. In the case of Dinh Van Than v Minister of Finance it concerned powers vested in the Minister of Finance to remove members of the Vanuatu National Provident Fund Board. The issue before the Court in that case was whether the Minister was required to give prior notice of his intention to declare the office of the member of the board vacant. In that case the Court held that " an opportunity for a response must be provided to ensure that the Minister was not acting upon a misapprehension or incorrect information or failing to fully appreciate a circumstance of relevance." That case is concerned with the situation that did not require the Court to make a decision as to whether article 5 of the Constitution (natural justice) applies to a non-citizen in the circumstances of or similar to the present case. I find that that case is of no assistance to me in this matter also. Mr. Laumae went on to say that decision makers are under an implied obligation to make enquiries before coming to a decision. The case of Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 46) was cited in support of this proposition. That case concerned ownership of the relevant land by certain Aboriginal claimants. Rich deposits of uranium was found under the land claimed by that group and the Minister made recommendations to the Governor General under the relevant law applicable that ownership of the land should be granted to the claimants. That recommendation did not include the report of the Commissioner regarding detriments that would arise if the grant was made. It was held that the recommendation to the Governor General must take into account the report on the detriments if the land was granted to the claimants. The circumstance of that case is very different to the circumstances of the present case. It has nothing to do with the issue whether a non-citizen is entitled to the principles of natural justice.
  4. The case of Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39 was cited as authority also for the proposition that the Minister has an implied duty to make appropriate enquiries before making a decision. In Renevier it concerned a French national who was born in the then New Hebrides, moved to New Caledonia and then on to Australia where he continued to remain after the expiration of his temporary entry permit. He was a borderline mental defective with record of convictions in Australia for sexual offences. He had a medical condition which makes his demand for sexual gratification very high. His condition while in prison after taking appropriate medical treatment was reduced to a level significantly to reduce his sexual drive and minimize further offending. He was then released on parole subject to supervision. He then applied for permanent residence on the basis of strong compassionate and humanitarian grounds under the Immigration Act. His application was refused on the grounds that the compassionate circumstances did not outweigh the real risk of recidivism based on medical report made close to the date of his release from prison. Following the refusal an order was issued for his deportation. The Court of first instance set aside the order for deportation. On appeal to the Federal Court the Court dismissed the appeal. One of the reasons for the dismissal of the appeal was that the decision was found to be unreasonable as there was readily available other factual material which was likely to be of critical importance in relation to the critical issue for determination but was not obtained. Again the circumstance of that case is very different to this case. A provision like article 5(1) of the Constitution of Vanuatu was not under scrutiny by the Court in that matter. I find that case of no assistance.
  5. The Claimant submitted that section 17A is not an absolute restriction precluding the principle of natural justice and fairness to apply to him. The cases of Timakata v Attorney General, R v Secretary of State for Home Department; Ex Parte Pierson [1997] UKHL 37; 1998 AC 539, Fairmount Investment Ltd v Secretary of State for the Environment 1976 WLR 1255 1263, On Ah Chuan v PP were cited in support of that proposition.
  6. The case of Timakata concerned the constitutionality of section 3 (c) of the Broadcasting and Television Act of 1992 and section 8A of the Business License (Amendment) Act of 1992. Section 3 (c) of the former provided that the "Prime Minister may if he thinks it expedient to do so, remove any member from office without assigning any reason there for and such removal shall not be called in question in any court."
  7. The new section 8A of the latter provided:

"(1) Notwithstanding anything in this Act, the Minister in his discretion may:–


(a) Refuse the issue or renewal of any licence under this Act;

(b) At any time revoke any licence issued under this Act.

(2) The Minister may not give any reason for the refusal or revocation referred to in subsection (1) and such refusal or revocation shall not be challenged in any proceedings whatsoever."
  1. The Court held that those provisions were unconstitutional. The Court held that "natural justice is incorporated in phrases such as protection of the law and includes notice." But the case was not about whether a non-citizen by virtue of section 17A is entitled to natural justice. In my view, that case is of no assistance to me in this matter. I have also perused the other cases cited in support of the proposition that section 17A is not a total prohibition preventing the Claimant from being accorded natural justice. I do not find those cases helpful to me in this case.
  2. Article 5 (1) of the Constitution begins with these words "...subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual...."
  3. Clearly Article 5 (1) recognizes that laws may impose restrictions on non-citizens concerning the fundamental rights and freedoms of individuals. That is very clear in my view. Firstly, that article says all persons are entitled to the fundamental rights and freedoms guaranteed by the Constitution. However, it also contains a proviso that says "restrictions" maybe "imposed by law on non-citizens" from enjoying the fundamental rights and freedoms to the extent imposed by law that are enjoyed by everybody else. Such restrictions must be in the law and must apply specifically to non-citizens.
  4. Parliament is the only authority vested with powers to make laws. Article 16 (1) makes this very clear and state "Parliament may make laws for the peace, order and good government of Vanuatu." In 2004 Parliament enacted the Immigration (Amendment) Act No.5 of 2004, which came into effect in 29/03/05, which introduced section 17A. That section is headed "Removal of non-citizens from Vanuatu" and contains three provisions concerning the powers to remove a non-citizen who "in the opinion of the Minister... is involved in activities that are detrimental to national security, defence or public order, or is a wanted person in a foreign country for any criminal offence he has committed in that foreign country." That is a law that is made for peace, order and good governance of Vanuatu.
  5. Section 17A, in my view has been enacted pursuant to Article 5 (1) of the Constitution to impose restrictions on non-citizens in the circumstances specified in subsection 1(a) and 1(b).
  6. The Claimant also submitted that subsection (2) of section 17A is merely directory and by implication would require the Minister to give notice where circumstances so require. Subsection (2) states "The Minister does not need to give any notice for the removal of this person from Vanuatu." This differs from the obligatory or mandatory phrase like "shall not be required to give or must not give." Having considered carefully what is the proper construction of the term "does not need to", as used in section 17A, it is my view that its effect is not obligatory. That the Minister must not give notice but rather one which imposes a discretion on the Minister. The Minister is not required to give notice but may do so if he considers it appropriate or proper in the circumstances of a particular case.
  7. In the present case the Minister has decided that he need not give notice to the Claimant. Notice to the Claimant meaning to enable him to respond to his imminent removal. Does the lack of notice in this context in this case render the removal of the Claimant on 9 February 2006 unlawful? To determine whether the exercise of the discretion not to notify the Claimant about his removal has the effect of rendering the removal of no effect or in breach of the right to be notified, it is important to examine the circumstances surrounding his removal and the relevant provisions of the law.
  8. In his sworn statement the Minister declared that in his opinion the Claimant was involved in activities that are detrimental to national security and public order.
  9. The Minister stated that after briefings and meetings with various government authorities that included his First Political Advisor, First Political Advisor to the Prime Minister, the Director General of the Ministry of Internal Affairs, the Commissioner of Police, the Acting Principal Immigration Officer and the State Law Office, he formed the opinion that the Claimant is involved in activities that are detrimental to the national security and public order. The Minister has had intensive consultations with relevant authorities in Government and as a result he was of the opinion that the Claimant’s activities is caught under section 17A of the Immigration Act. Once he had reached that opinion the test in section 17A in my view, is satisfied.
  10. What is the test in section 17A of the Immigration Act? It is expressed as one of "opinion". It is not stated any higher than that, for example, it could have been stated that "where the Minister is satisfied", but it did not. The test is simply that "if in the opinion of the Minister". In other words, the Minister is not being asked to be firstly satisfied on the relevant grounds before making a removal order, but, if on information available to him he " forms an opinion" that any of the circumstances referred to in paragraphs (a) and (b) of subsection (1) of section 17A exists, then he can issue an order to remove a person concerned whose conduct is caught within that subsection.
  11. Section 17 of the Immigration Act ensures that any person who is subject to a removal order is accorded with natural justice. Before the Minister issues a removal order, he must give the person notice in writing:-
  12. Subsections (1B) and (1C) makes further provision concerning natural justice in the event that the Minister decides to make a removal order. It would appear to me that the purpose of section 17A is one that prohibits natural justice being accorded to the non-citizen concerned. Subsection (2), in my view, must be read with that purpose in mind. Having regard to the purpose, it is my view, that notice referred to in section17A(2) does not relate to notice to enable the person an opportunity to respond but rather to inform him of the removal order.
  13. It has also been submitted by the Claimant that there is a conflict between section 17 and section 17A. It is my view that to ascertain whether the provisions are inconsistent with each other, it is necessary to take a closer look at Article 5 (1) of the Constitution. Why? Because that article says non-citizens can be given different treatment under the law, as opposed to everybody else. Section 17A targets:-
  14. It is very specific to those circumstances. Other circumstances are caught under section 17. For example if a non-citizen commits an offence in this country or continues to remain in the country without a residency permit, then in my view, section 17 accords him or her the protection under Article 5 (1) of the Constitution. I do not think that there is a conflict or inconsistency between section 17 and section 17A at all.
  1. Minister of Internal Affairs is bound by the Principles of natural justice and fairness when exercising a public function that affects and limits the legitimate interest of any person including the Claimant.
  1. My comments regarding the third ground above applies. I do not need to repeat myself.
  1. The Removal Order is a futile Order because the Claimant is a refugee and the Minister cannot deport a stateless person.
  1. As to whether the Claimant is a refugee my comments in relation to the first ground applies. He is not a refugee.
  2. The second leg of this ground is that the Minister cannot deport the Claimant because he is a person without any nationality. He is a stateless person. That statement in my view is a fallacy. Evidence before the Court (sworn statement of the Claimant himself and the Acting Principal Immigration Officer) shows that in 1988 the Claimant together with the other members of the Black Brothers Band were deported to Australia. When his name was removed from the list of person barred to return to Vanuatu, he made several visits to Vanuatu before taking up residence.
  3. The Travel Document issued to the Claimant on 26 March 2001 that expired on 26 March 2003 contains this statement:-

"1. This document is issued solely with a view to providing the holder with a travel document which can serve in lieu of a national passport. It is without prejudice to and in no way affects the holder’s nationality.


  1. The holder is authorized to return to Australia subject to the provisions of any visa endorsed in this document.
  2. Should the holder take up residence in a country other than that which issued the present document, he must, if he wishes to travel again, apply to the competent authorities of his country of residence for a new document."
  3. When he was deported in 1988 he was a stateless person then. That status has not changed. Australia had accepted him then and also provided him with a Travel Document to be able to travel. It is evident that it is possible for another country to accept him. The Removal Order, in my view, is not a futile order.
  4. The cases that were cited by the Claimant as authority for the proposition that he was entitled to natural justice that his fundamental rights under the Constitution has been breached arises in jurisdiction with no provision like Article 5 (1) of the Vanuatu Constitution. When the Court enquired of Mr. Laumae if any of the jurisdictions he had taken the cases from have a provision like our Article 5 of the Constitution, Mr. Laumae could not confirm this to the Court.
  5. Article 5 (1) of the Constitution contains a bill of rights for all persons. It states that these are fundamental rights and fundamental freedoms of individuals. The Constitution jealously protects those fundamental rights by giving person who " considers that any of the rights guaranteed to him by the Constitution has been, is being or likely to be infringed may independently of any other possible legal remedy, apply to the Supreme Court to enforce that right."
  6. One such fundamental right is the right to protection of the law. This is a right that, in my view, incorporates the common law principle of natural justice and fairness. Article 95 of the Constitution reinforces this view as it states that " until otherwise provided by Parliament, the British laws in force or applied in Vanuatu immediately before the Day of Independence shall on and after that day continue to apply to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu." British laws include common law principles.
  7. It has been submitted on behalf of the Claimant that any restriction that completely removes the constitutional rights of a person and precludes the application of natural justice is totally oppressive, absurd and repugnant to public policy and the spirit of the Constitution. But Article 5 of the Constitution also recognized that Parliament by law may impose restrictions on non-citizens as to their enjoyment of the fundamental rights and freedoms. The Constitution is the Supreme Law in this country. Section 17A of the Immigration Act is the first of such law Parliament has passed that does imposed or curtail the fundamental rights accorded to non-citizens in the specific areas set out in subsection (1).
  8. In conclusion, I find that:-
  9. The formal Orders of the Court are:-

DATED at Port Vila, this 7th day of April 2006.


H. BULU
Judge.

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