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Ayamiseba v Attorney General [2006] VUCA 21; CAC 13-06 (6 October 2006)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 13 of 2006.

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice J. Bruce Robertson
Hon. Justice John W. von Doussa
Hon. Justice Daniel V. Fatiaki
Hon. Justice Oliver A. Saksak
Hon. Justice Christopher N. Tuohy

Counsel: Mr. Laumae for Appellant
Mr. Gilu and Mr. Botleng for Respondents

Date of Hearing: 26 September 2006
Date of Decision: 06 October 2006

JUDGMENT

Andy Ayamiseba appeals against orders made in the Supreme Court, Port Vila on 7 April 2006 when the Court refused to quash the removal order made against him by the Minister of Immigration of the Republic of Vanuatu on the 9th of February 2006.

Bulu, J found:-

(a) The Removal Order dated 9 February 2006 is not unconstitutional. The Order is made pursuant to section 17A of the Immigration Act. That section 17A imposes restriction on non-citizens from enjoying the fundamental rights and freedoms guaranteed to every person in the specific circumstances specified in subsection (1) (a) and (b).

(b) Article 5 (1) of the Constitution permits a law to place restriction on non-citizens from enjoying the fundamental rights and freedoms guaranteed to an individual under that article.

(c) Section 17A of the Immigration Act is not inconsistent or in conflict with section 17 of the Act.

(d) Section 17A prohibits a non-citizen caught under subsection (1) from being accorded natural justice.

The appeal is advanced from the basis that the finding of the judge that the constitutional rights had not been breached and that the decision made by the Minister was not unreasonable is unsustainable in fact and law.

Sometime after 10pm on 9 February 2006 immigration officers and police went to Andy Ayamiseba’s home at Second Lagoon where he lives with his wife and 4 year old son. They served him with a removal order dated 9 February 2006 signed by the Minister of Internal Affairs, the Honourable Mr. George Wells. He was taken to the airport and put on board the Air Vanuatu flight for the Solomon Islands at 11pm that night.

The order was in this form:

"In the 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 made 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"

At no point prior to the arrival of the officers at the appellant’s address was the possibility of his removal raised or discussed with him in any way.

Mr. Ayamiseba first came to Vanuatu in 1983 as a member of the Black Brothers band at the invitation of the Government.

Apparently the band assisted with an election campaign and was involved in many political activities including fundraising for the Vanuaku Party. Mr. Ayamiseba remained in Vanuatu for about six months and then returned to Holland. On an ongoing basis he continued to visit the country on a regular basis until in 1988 he was deported to Australia in the "interest of national security and internal political stability".

In the same year his name was removed from the immigration watch-list of prohibited persons and he made several field trips to Vanuatu using Australian travel documents including one which was valid between 2001 and 2003.

He was also issued with a Vanuatu diplomatic passport which was operative from 9 March 2002 until February 2005.

On 9 November 2005 the Immigration Department through the Foreign Affairs Department requested Mr. Ayamiseba to apply for a residency permit. He applied on the relevant form but he did not answer at all the question 6 on the application form - "Have you ever been deported from or refused entry to Vanuatu".

It is common ground that following the expiry of the Vanuatu diplomatic passport and in the absence of an Australian travel document he was residing in Vanuatu without any specific authorisation.

After he was removed from Vanuatu on February of this year he was taken initially to Honiara. The authorities would not permit him to enter the Solomon Islands. He travelled on to Brisbane, Australia on the same Air Vanuatu flight but the Australian authorities too would not permit him to enter and he continued on the same plane back to Port Vila.

He was not allowed initially to leave the airport on his return but after an urgent application was made on 17 February 2006 an interim order was made restraining his removal and this continued until the hearing of the substantive proceedings. Mr. Ayamiseba has been completely at liberty in the community and not subject to any form of control or curtailment.

The case before Bulu J was that the order for removal was unlawful as it was in breach of the Constitution and the principles of natural justice and fairness in that:

(a) it was unreasonable

(b) it precluded the claimant’s constitutional rights

(c) it was oppressive and

(d) it was inconsistent with section 17 of the Immigration Act.

It was also argued that the removal order was futile as it was an attempt to deport a stateless person.

In Chapter 2 of the Constitution, Article 5.1 guarantees fundamental rights and freedoms for individuals. However it specifically provides that rights are subject to any restriction imposed by law on non-citizens.

The Immigration Act section 17 stipulates how persons can be removed from Vanuatu and it provides:

"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:

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

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

(c) 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:

(i) to the person; and

(ii) if the person was issued with a permit under section 9A, 9C or 9D – to the Foreign Investment Board;

within 48 hours of making the order".

In 1A – 1C a detailed procedure exists as to what the Minister must do before making an order under subsection 1 of section 17.

Critical in this case are the provisions of section 17A which were introduced later and provide:

"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:-

a. is involved in activities that are detrimental to national security, defence or public order; or

b. 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."

Initially Mr. Laumae sought to argue that section 17A was unconstitutional. Before us he abandoned that argument and accepted that in terms of Article 5.1 of the Constitution Parliament may by law impose restrictions on the fundamental rights and freedoms of non-citizens.

There was also an initial argument that section 17A should not be upheld because of its conflict with section 17. That is not a sustainable argument either.

Section 17 provides the general approach to be applied when a person is to be removed from Vanuatu. It provides for notice to be given in writing and for the opportunity for representations to be made and for other incidental and consequential actions.

That is the starting point in all cases.

By section 17A Parliament has provided for the possibility of a different approach in two specified situations. Those are the matters which are defined in section 17A, 1 (a) or (b). if the minister is of the opinion that either of those situations apply the Minister does not need to give the notice which would otherwise be required under section 17. We are not persuaded that the need to give notice applied more generally than the requirements of section17 but for the purposes of deciding this case we do not need to reach a firm conclusion.

As became apparent in the course of the hearing the section 17A regime does not in terms "prohibit" or "prevent’ the Minister from giving notice or affording to a non-citizen the rights of natural justice, it merely empowers the Minister to decide whether he needs to in the particular case.

It is quite wrong to say that the provision explicitly removes rights to prior notice to which a non-citizen might otherwise be entitled. It merely enables or empowers a Minister to decide whether he needs to give notice.

As a matter of statutory interpretation section 17A requires that the Minister must be of the opinion that the circumstances under either subsection, (1) (a) or (b) exists and then separately under subsection (2) whether in the circumstances he needs to give notice.

In the affidavit filed by the Minister sworn on the 28 February 2006 the Minister says: "In my opinion the Claimant is involved in activities that are detrimental to national security and public order".

He goes on to indicate how he was briefed by various official and governmental personnel and that he formed an opinion regarding the complainant’s activities under section 17A (1) (a).

There was also available to the Court affidavits from various people including the First Political Advisor for the Minister and the Ministry of Internal Affairs, the Acting Commissioner of Police, the Acting Principal Immigration Officer of the Department of Immigration and the First Political Advisor to the office of the Prime Minister. They each had discussed with the Minister these issues and offered advice as to whether Mr. Ayamiseba’s activities could have been "detrimental to national security or public order". Upon the basis of that the Minister formed an opinion.

There is no evidence that the Minister turned his mind to whether he needed to give notice for the removal of Mr. Ayamiseba or that any person who advised the Minister had considered the second issue either.

It is clear from the frame-work of section 17A (2) that there is a separate and distinct enquiry and assessment which needs to be taken by the Minister. The particular facts and circumstances of this case amply demonstrate why that will be essential.

• This was a man who had been in the Republic for lengthy periods of time over 20 years;

• He had at one time been the holder of a Vanuatu diplomatic passport; as recently as November 2005 he had been specifically invited by the Immigration authorities to apply for residence;

• He was in a permanent relationship in the nature of a marriage and was the father of a child who was a citizen of Vanuatu. This means there has to be regard to the obligations the Republic undertook when it became a signatory on the 6th of December 1992 to the Convention on the Rights of the Child;

• There was recent evidence that in his political activities (and those with whom he was associated) there had been proper recognition of the rule of law in a democratic process. Application had been made for a permit to demonstrate and when this was declined the proposed activity had not gone ahead;

• That there were serious issues as to whether this man was stateless and where he could go if deported; that all endeavours by Mr. Ayamiseba to influence politicians had been driven by his passionate commitment to the West Papuan Independence Movement.

These are but examples of issues which the Minister inevitably had to weigh before he could decide that he should take the extraordinary step of denying any person a right to be heard before he exercised a power to the detriment of that person. As the appellant knew nothing about the possibility of the removal order he could not raise them with the Minster who had to consider these and other relevant issues in deciding whether he needed to give notice to the Appellant.

This is a simple question of statutory interpretation. The Minister had to reach a rational decision on an objective analysis undertaken with integrity that there was no need for him to give notice. That is what the Act requires. There seems to have been a misapprehension that notice was unnecessary. Not so. He had to decide if, in this case, it was needed.

There is no evidence to suggest that this important second inquiry was undertaken at all. Therefore the exercise of power and the deportation which followed are unsustainable in law. In a case like this the jurisdiction of the Court is limited to ensuring that the processes undertaken in the issuance of the removal order are lawful.

Having reached that conclusion, it is unnecessary for us to consider whether the evidence adduced was sufficient for the Minister to have formed the opinion that the activities of Mr. Ayamiseba were detrimental to national security or public order under section 17A (1) (a).

It is enquiry which is unnecessary and therefore it is inappropriate for this Court to enter into any consideration of the point.

The Court being satisfied that the deportation order was made without proper compliance with the statute it is therefore declared to be a nullity.

There is no reason that the costs should not follow the event.

The formal orders of the Court are that:

(a) the removal order dated 9 February 2006 made by the Minister of Immigration against Andy Ayamiseba be hereby quashed;

(b) there be costs of VT20,000 in respect of this appeal in favour of Mr. Ayamiseba.

Dated at PORT VILA on 06 October 2006

BY THE COURT