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Organisation of a 'Heritage Study Tour' to Australia in 1999 by Mr Roy Bongelan [2003] VUOM 20; 2003.25 (14 October 2003)

REPUBLIC OF VANUATU


OFFICE OF THE OMBUDSMAN


PUBLIC REPORT


ON THE


ORGANISATION OF
A ‘HERITAGE STUDY TOUR’
TO AUSTRALIA IN 1999
BY MR. ROY BONGELAN


14.10.2003


0056/2003/25


PUBLIC REPORT

ON THE

ORGANISATION OF

A ‘HERITAGE STUDY TOUR’

TO AUSTRALIA IN 1999

BY MR. ROY BONGELAN


SUMMARY


At some time before September 1999, discussions had taken place between the then Lord Mayor of Luganville, Mr. Roy Bongelan, and various residents of Santo about a proposed "Heritage Study Tour" to Australia, scheduled to leave Vanuatu on 15 October 1999 with a planned duration of up to 65 days. Mr. Bongelan asked all those who had shown interest in joining the tour group to pay him Vt20,000, reportedly as a bus fare from Brisbane to Townsville.


On October 1999, Mr. Roy Bongelan wrote, on official Municipality of Luganville letterhead, to the Australian High Commissioner asking him to "facilitate our visas arrangements".


On or about 15 October 1999, the tour was cancelled for reasons which at least included the fact that visas were refused. This refusal was due to several members of the group having supplied false information in their application.


On 28 October 1999, representatives of the abandoned tour group wrote to the Manager of the ANZ Bank in Luganville asking whether money paid to Mr. Bongelan had been transferred to Australia or deposited into Mr. Bongelan’s account. On the same day the Manager of the ANZ Bank confirmed to them that Mr. Bongelan has sent a total of Vt614,612 to the bank account of Mr. Bakon Abock in Australia. Another letter was sent to Mr. Bongelan asking for their refunds. However, as Mr. Abock was by then back in Vanuatu, Mr. Bongelan advised that the participants should get their refund from him (Abock), rather than himself (Bongelan).


In the light of the above facts, the Ombudsman finds evidence that:

- Mr. Bongelan was significantly involved in the organization of the "Heritage Study Tour" to Australia.
- Mr. Bongelan was aware that the "heritage Study Tour" was only a façade for participants to travel to Australia and work without obtaining proper visas.
- Mr. Bongelan attempted to use his official position as a Leader to obtain preferential treatment for the proposed group members when applying for their Australia visas.
- In requesting the Australian High Commissioner to approve the visas for the alleged cultural group, Mr. Bongelan may have breached Article 66(1)(d) of the Constitution and section 13 (1)(b)(c)(d) of the Leadership Code Act by using the Municipality letterhead and seal in a situation that was completely unrelated to any official business of the Municipality.
-

The Ombudsman recommends that the Public Prosecutor commences proceedings against Mr. Bongelan for breaches of the Leadership Code Act.


TABLE OF CONTENTS


SUMMARY

1. JURISDICTION

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

3. RELEVANT LAWS

4. OUTLINE OF EVENTS

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

6. FINDINGS

7. RECOMMENDATIONS

8. INDEX OF APPENDICES


1. JURISDICTION


1.1 The Constitution and the Leadership Code Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders, including the Lord Mayor of Luganville, Mr. Roy Bongelan.


2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED


2.1 The purpose of this report is to present the Ombudsman’s findings and recommendations as required by the Constitution and the Ombudsman Act.

2.2 The scope of this investigation is to establish the facts about the conduct of the then Lord Mayor of Luganville, Mr. Roy Bongelan, in organising a proposed "Heritage Study Tour" of Australia involving approximately 21 Santo residents in 1999 and to determine whether evidence exists of breaches of the Leadership Code Act by Mr. Bongelan in relation to the proposed trip.


2.3 Evidence gathered by the Ombudsman strongly suggests that the alleged "Heritage Study Tour" was a scheme organised by ni-Vanuatu living in Australia in conjunction with associates in Santo, whereby citizens were induced to pay their own airfares to Australia on the promise of well-paid work fruit-picking. It appears that calling the trip a "Heritage Study Tour" was an attempt to conceal the real nature of the voyage - probably in the hope of obtaining visas more easily.


2.4 It is important to realise that the obligations imposed on Mr. Bongelan by the Constitution and Leadership Code Act extend beyond anything he may do in an official capacity to include things done in a purely private capacity as well. In this investigation, the Ombudsman has found evidence of improper action by Mr. Bongelan in both his official and private capacities.


2.5 This office collects information and documents by informal request, summons, letters, interviews and research.


3. RELEVANT LAWS


3.1 Relevant parts of the following laws are reproduced in Appendix N.


CONSTITUTON OF THE REPUBLIC OF VANUATU

LEADERSHIP CODE ACT NO.2 OF 1998


4. OUTLINE OF EVENTS


4.1 At some time before September 1999, discussions had taken place between the then Lord Mayor of Luganville, Mr Roy Bongelan, and various residents of Santo about a proposed "Heritage Study Tour" to Australia, scheduled to leave Vanuatu on 15 October 1999 with a planned duration of up to 65 days.


4.2 On 27 October 1999, Mr Roy Bongelan wrote, on official Municipality of Luganville letterhead, to the Australian High Commissioner asking him to "facilitate our visa arrangements" (see Appendix A). The letter was signed by Mr Bongelan as "LORD MAYOR, LUGANVILLE MUNICIPALITY" and bore the stamp or seal of Luganville Municipality.


4.3 During September and early October 1999, Mr Bongelan asked all those who had shown interest in joining the tour group to pay him Vt20,000, reportedly as a bus fare from Brisbane to Townsville.


4.4 On 11 October 1999, an undated facsimile was sent to Mr Bongelan from Mr W Elton (Appendix B). The letter appears to notify Mr Bongelan that all members of the group will be required to pay a "commission contribution... for arranging the work" of AUD$250.00.


4.5 On 13 October 1999, a further facsimile (Appendix C) was sent to Mr Bongelan from the same facsimile machine that sent Appendix B. This facsimile explicitly refers to the business "Sungold Mangoes" requiring a labour force of 150 persons for a period of 8 - 9 weeks from October 1999 and sets out accommodation arrangements for the workers.


4.6 On or about 15 October 1999, the tour was cancelled for reasons which at least included the fact that visas were refused. This refusal was due to several members of the group having supplied false information in their application.


4.7 On 28 October 1999, representatives of the abandoned tour group wrote to the manager of the ANZ Bank in Luganville asking whether money paid to Mr Bongelan had been transferred to Australia or deposited into Mr Bongelan's account (see Appendix D).


4.8 Also on 28 October 1999, the manager of the ANZ Bank in Luganville wrote to Mr Derickson Aru confirming that Mr Bongelan had sent a total of Vt614,612 to the bank account of Mr Bakon Abock in Australia (see Appendix E).


4.9 On 2 November 1999, representatives of the abandoned tour group sent Mr Bongelan a formal letter asking for their payments of Vt20,000 to be refunded (Appendix F).


4.10 At about the same time, a statement about the missing money was handed to police in Luganville (Appendix G).


4.11 On 4 November 1999, one of the planned participants wrote to the Ombudsman (see Appendix H). His letter states clearly that Mr Bongelan had been organising the planned trip and had taken money from participants.


4.12 On 11 January 2000, Mr Bongelan wrote to the Ombudsman in response to a letter received as part of this investigation (see Appendix I, including attachments). In it, he stated that the only money not refunded to intending participants was that transferred to Australia (paragraph 1.3). He added that the person to whom the money had been sent in Australia (Mr. Bakon Abock) was by then back in Vanuatu and implied that the participants should get their refund from him (B Abock), rather than himself (Mr Bongelan). A further letter from Mr Bongelan dated 20 January 2000 is reproduced as Appendix J.


4.13 Investigations by the Ombudsman suggest that the person to whom money was sent in Australia, Mr Bakon Abock, together with another ni-Vanuatu involved in arranging the planned trip, Mr Arthur Bae, were subsequently deported from Australia for breaching Australian laws. According to the Australian Department of Immigration and Multicultural Affairs, deportation only occurs when there is no evidence of the offenders having sufficient funds of their own to pay for tickets back to their own country (see Appendix K).


4.14 The Ombudsman received a letter dated 1 May 2000 from one of the intending participants in response to this investigation (see Appendix L). In the letter, the writer stated that the aim of the tour was to "pick apple [sic] from the farm" and that he and the other members were supposed to earn "money to earn their every day living". He also confirmed that money had been paid to Mr Bongelan and never refunded.


4.15 On 3 May 2001, an officer of the Ombudsman's Office interviewed Mr Bongelan (see transcript reproduced as Appendix M). During that interview he:


5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM


5.1 A re-issued working paper on the investigation was sent to the following people for their responses and comments:

The Ombudsman did not receive a response from any of the above individuals.


6. FINDINGS


6.1 Finding 1: The Ombudsman finds evidence that Mr Bongelan was significantly involved in the organisation of the "Heritage Study Tour" to Australia.


6.1.1 Although Mr Bongelan claims that only organisers were resident in Australia, there is strong evidence that the intending participants in Santo dealt with Mr Bongelan in relation to all arrangements for the trip. Mr Bongelan involved himself by writing to the Australian High Commissioner in relation to visas (Appendix A) and correspondence relating to arrangements for the trip was directed to him (for instance Appendices B & C).


6.2 Finding 2: The Ombudsman finds evidence that Mr Bongelan was aware that the "Heritage Study Tour" was only a façade for participants to travel to Australia and work without obtaining proper visas.


6.2.1 Despite Mr Bongelan's insistence that the trip was motivated by "cultural exchange" he received documents such as Appendix B, referring to a contribution from each member "for arranging this work" and Appendix C specifically discussing the terms on which workers would be employed.


6.2.2 Significantly, the start date and duration of the work discussed approximately match the planned departure and duration of the study trip.


6.2.3 While the letter from the "Australian South Sea Islander United Council" dated 1 October 1999 and attached to Mr Bongelan's letter reproduced in Appendix I supports the idea that some cultural exchange may have been intended at some stage, it is significant that Mr Bongelan only received it after arrangements were already well under way for the tour. If this was intended to be part of the group's activities at all, the evidence suggests that it was only a minor part.


6.2.4 Mr Bongelan admitted in his interview (see Appendix M) that he knew whom the sender of the "Sungold Mangoes" facsimile was and that Mr Arthur Bae and
Mr Bakon Abock had arranged for the group to "visit" Sungold Mangoes.


6.2.5 One of the intending participants also states that the aim of the tour was to "pick apple on the farm" (see Appendix L) and it is difficult to imagine that this information had come from anyone other than Mr Bongelan.


6.2.6 Finally, no mention is made of how the group were to fund their accommodation and living expenses for the planned 65 days if not by working.


6.3 Finding 3: The Ombudsman finds evidence that Mr Bongelan attempted to use his official position as a Leader to obtain preferential treatment for the proposed group members when applying for their Australian visas.


6.3.1 Mr Bongelan wrote to the Australian High commissioner on the official letterhead of the Municipality of Luganville, signed the letter as Lord Mayor of Luganville Municipality and affixed the Municipality's seal to the letter (see appendix A), despite the fact that the proposed tour was completely unrelated to any official business of the Municipality.


6.3.2 Furthermore, Mr Bongelan materially misrepresented the nature of the group's planned activities in Australia in his letter to the High Commissioner. Mr Bongelan does not mention that the group members will be working during their time in Australia and instead creates the impression that the "exchange of cultural backgrounds" is the only purpose of the trip.

6.4 Finding 4: In requesting the Australian High Commissioner to approve the visas for the alleged cultural group, Mr. Bongelan may have breached Article 66(1)(d) of the Constitution and/or section 13(1)(b)(c)(d) of the Leadership Code Act by using the Municipality letterhead and seal in a situation that was completely unrelated to any official business of the Municipality.


Article 66 (1)(d) of the Constitution and section 13(1)(b)(c)(d) of the Leadership Code Act provide that any person defined as a leader in Article 67 of the Constitution has a duty to conduct himself in such a way, both in his public and private life, so as not to endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu. A leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1).


Section 13(1)(b)(c)(d) of the Leadership Code Act also provides that a leader must behave fairly and honestly in all his or her official dealings with colleagues and other people, avoid personal gain, and avoid behaviour that is likely to bring his or her office into disrepute.


By using the Municipality letterhead and seal while requesting the Australian High Commissioner to facilitate the approval of visas (Appendix A) despite the fact that the proposed tour was completely unrelated to any official business of the Municipality, Mr. Bongelan may have breached Article 66(1)(d) of the Constitution and section 13(1)(b)(c)(d) of the Leadership Code Act.


7. RECOMMENDATIONS


7.1 RECOMMENDATION 1: The Ombudsman recommends that the Public Prosecutor commence proceedings against Mr. Bongelan for breaches of the Leadership Code Act.


Dated the 14th day of October 2003.


Hannington G. ALATOA

OMBUDSMAN OF THE REPUBLIC OF VANUATU


8. INDEX OF APPENDICES


  1. Copy of letter dated 27 September 1999 from Mr R Bongelan, Lord Mayor, Luganville Municipality, to Mr Perry Head, Australian High Commissioner.
  2. Copy of handwritten facsimile (undated) transmitted on 11 October 1999 from W Elton to Mr R Bongelan.
  1. Copy of facsimile dated 22 September 1999 from Sungold Mangoes to "Dave Smith".
  1. Copy of letter dated 28 October 1999 from Heritage Group, Luganville to the Manager, ANZ Bank, Santo.
  2. Copy of letter dated 28 October 1999 from Manager, ANZ Bank, Santo to
    Mr Derickson Aru.
  3. Copy of letter dated 2 November 1999 from representatives of the tour group to
    Mr Roy Bong.
  4. Copy of undated, untitled document in the name of members of the tour group beginning "Long Manis September mo early long October 1999..." and signed by most members.
  5. Copy of letter dated 4 November 1999 from Mr Steven Livo to Director of Leadership Code, (Ombudsman's Office).
  6. Copy of letter dated 11 January 2000 from Mr Roy Bongelan to the Ombudsman, with attachments.
  7. Copy of letter dated 20 January 2000 from Mr Roy Bongelan to the Ombudsman.
  8. Copy of letter dated 8 October 2001 from Australian Department of Immigration and Multicultural Affairs to the Ombudsman.
  1. Copy of handwritten letter dated 1 May 2000 from Mr Derickson Aru to the Ombudsman.
  1. Copy of statement of interview dated 2 May 2001 with Mr R Bongelan.
  2. Relevant laws.

APPENDIX N


RELEVANT LAWS


CONSTITUTION OF THE REPUBLIC OF VANUATU


CONDUCT OF LEADERS


66(1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b) demean his office or position;

(c) allow his integrity to be called into question; or

(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.


66(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by sub article (1).


DEFINITION OF A LEADER


67 For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.


LEADERSHIP CODE ACT NO.2 OF 1998


LEADER'S BEHAVIOUR


3 A leader holds a position of influence and authority in the community. A leader must behave fairly and honestly in all his or her official dealings with colleagues and other people, avoid personal gain, and avoid behaviour that is likely to bring his or her office into disrepute. A leader must ensure that he or she is familiar with and understands the laws that affect the area or role of his or her relationship.


LEADERS


5 In addition to the leaders referred to in Article 67 of the Constitution, the following are declared to be leaders:
...

(c) elected and nominated members of municipal councils;


DUTIES OF LEADERS


13(1) A leader must:

(a) comply with and observe the law;

(b) comply with and observe the fundamental principles of leadership contained in Article 66 of the Constitution;

(c) comply with an observe the duties obligations and responsibilities established by the Code or any other enactment that affects the leaders; and

(d) not influence or attempt to influence or exert pressure on or threaten or abuse persons carrying out their lawful duty.


BREACH OF LEADERSHIP CODE


19 A person who does not comply with Part 2, 3 or 4 is guilty of a breach of this Code and is liable to punishment in accordance with Part 6.


OBEYING THE LAW


28 A leader acting in his or her capacity as a leader who fails to abide by an enactment that imposes on the leader a duty, obligation, or responsibility is in breach of this Code.


SPECIFIC PROVISIONS


29 Without limiting the generality of section 28 a leader who fails to abide by the provisions of an Act that provides for:

(a) the public service; or

(b) public finance or economic management; or

(c) expenditure review committee or audit functions; or

(d) government contracts or tenders;
is in breach of this Code.


FINE OR IMPRISONMENT


40(1) A leader who is convicted of a breach of section 19, or 20, or 21, or 22, or 23, or 24, or 26 or 27 is liable to-

(a) a fine not exceeding VT5,000,000; or

(b) imprisonment for a period not exceeding 10 years.


40(3) A leader who is convicted of a breach of this code for which no specific penalty is provided is liable to a fine not exceeding VT2,000,000.

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