Bogiri v Minister of Foreign Affairs, International Cooperation and External Trade

JUDGMENT OF THE COURT

A.    Introduction 

1.    The appellant George Bogiri appeals against a Supreme Court decision declining to hear his judicial review claim and striking it out after the Rule 17.8 conference.  

2.    On 17 April 2024, the second respondent the State appointed Mr Bogiri to the position of Consul General of the Republic of Vanuatu to Hong Kong. This was for a fixed term of 3 years. 

3.    By letter dated 2 July 2025, the first respondent, the Minister of Foreign Affairs, International Cooperation and External Trade (the ‘Minister’), recalled Mr Bogiri. 

4.    On 31 October 2025, Mr Bogiri filed a Claim for judicial review challenging the recall decision.  

5.    Part 17 of the Civil Procedure Rules (‘CPR’) provides an expedited process for judicial review claims. Rules 17.8(1) and (2) require the judge to call a conference (a ‘Rule 17.8 conference’) as soon as practicable after the defence has been filed and served, to ensure the subject matter of the claim is properly before the Court. A defence must be filed along with sworn statements supporting the grounds of the defence: rule 17.7(4)(b) of the CPR.   

6.    The Court will not hear a claim for judicial review unless satisfied as to all four matters prescribed in rule 17.8(3) of the CPR:  

a.    The claimant has an arguable case; and 
b.    The claimant is directly affected by the decision; and 
c.    There has been no undue delay in making the claim; and 
d.    There is no other remedy that resolves the matter fully and directly.

7.    The respondents filed a Defence only but no sworn statement. The matter proceeded to a Rule 17.8 conference. 

8.    After hearing the parties at the Rule 17.8 conference, the primary Judge granted leave for further sworn statements to be filed and reserved his decision. He subsequently considered the material provided, concluded that the appellant did not have an arguable case and struck out the claim. This appeal challenges that determination.    

B.    Pleadings  

9.    Mr Bogiri sought specific remedies in the Claim including a declaration that the Minister’s decision was of no legal effect and void, costs and other order deemed fit.    

10.    It was Mr Bogiri’s claim that he was not given any notice in writing as to the allegations against him in terms of s. 28 of the Foreign Services Act No. 20 of 2013 (the ‘Act’). He alleged that he was not served with a summons setting out allegations against him and he was not given an opportunity to be heard as to any allegations, thus breaching his rights to natural justice: paras 7, 9, 10, 11 and 13 of the Claim.  

11.    Mr Bogiri also alleged that the State had not appointed him to discharge any role in a foreign mission as suggested by the Minister in his 2 July 2025 letter: para. 12 of the Claim.   

12.    The respondents alleged in the Defence that the Minister instructed Mr Bogiri by letter dated 15 April 2025 to relocate the Consul General’s office in Hong Kong to new premises. However, Mr Bogiri did not comply with that instruction. Consequently, the Minister issued a summons to Mr Bogiri dated 13 June 2025 to return to Vanuatu for a briefing on allegations that he had disregarded the Minister’s instruction to relocate the office, not receiving Government Ministers on arrival in Hong Kong, and taking instructions from outside authority without the Minister’s approval.  

13.    The respondents also alleged that the Minister and Mr Bogiri met in Vanuatu but the Minister was not satisfied with Mr Bogiri’s explanations and responses to the allegations and hence recalled him.  

C.    Evidence  

14.    Mr Bogiri deposed in his sworn statement filed on 31 October 2025 that he was verbally informed that he had been recalled but was not served the Minister’s recall letter dated 2 July 2025 until 25 September 2025. He deposed that he had not received any summons or other letter detailing allegations against him and was not given any opportunity to be heard as to the charges or allegations against him.  

15.    Minister Ati attached to his sworn statement copies of his letter dated 15 April 2025 instructing Mr Bogiri to relocate the Consul General’s office in Hong Kong, and of his 13 June 2025 summons to Mr Bogiri to return to Vanuatu to brief him on allegations that he had disregarded the Minister’s instruction to relocate the office, not receiving Government Ministers on arrival in Hong Kong, and taking instructions from outside authority without the Minister’s approval. Minister Ati deposed that he met Mr Bogiri over the matters in the summons but was not satisfied with Mr Bogiri’s explanation and responses in relation to those matters and hence recalled Mr Bogiri. 

16.    In Mr Bogiri’s sworn statement in response, he deposed that the Consul General’s office in Hong Kong was moved and that on 30 May 2025, Minister Ati attended the opening of the new office. He deposed that he met Minister Ati in Port Vila on 5 or 6 June 2025, but that the summons dated 13 June 2025 was never served on him so that he could provide a response to the allegations in the summons.  

D.    Supreme Court Decision 

17.    The primary Judge considered each of the prescribed matters in Rule 17.8(3) of the CPR.   

18.    He considered the evidence filed by the parties, made findings as to the facts and concluded that Mr Bogiri did not have an arguable case.   

19.    Next, the primary Judge accepted that Mr Bogiri was directly affected by the decision but stated that the Minister’s recall decision was a policy decision within the powers of the executive branch of government, reserved to the Minister of Foreign Affairs. He concluded that therefore the Court could not review the Minister’s recall decision.  

20.    The primary Judge noted that the respondents conceded that there had been no undue delay in making the claim.  

21.    Finally, the primary Judge considered that there was another remedy available because the Minister stated in the last paragraph of the recall letter that the Government was intending to appoint Mr Bogiri to another foreign mission. 

22.    Given that the primary Judge was not satisfied of all the prescribed matters set out in Rule 17.8(3) of the CPR, he declined to hear the Claim and struck it out. He ordered that each party bear its own costs.  

E.    Appeal    

23.    There were a number of grounds of appeal advanced but which we summarize as follows: First, it was contended that the primary Judge erred in deciding the merits of the Claim rather than whether or not the appellant had an arguable case. Secondly, that the primary Judge erred in failing to recognize that the appellant had an arguable case for judicial review. Lastly, that the primary Judge erred in holding that the Minister’s recall decision was non-justiciable.  

F.    Discussion  

24.    It was contended on Mr Bogiri’s behalf that the primary Judge erred in deciding the merits of the Claim rather than whether or not the appellant had an arguable case. 

25.    The primary Judge must consider at the Rule 17.8 conference whether the claimant has an arguable case: Rule 17.8(3)(a) of the CPR. The judge will consider the Claim and the sworn statements together with any documents filed for the defence.     

26.    Mr Bogiri’s pleaded claim was that he was not served with a summons or given any written notice as to the allegations against him in terms of subs. 28(1) of the Act. Hence his rights to natural justice or procedural fairness have been breached. Subsection 28(1) of the Act provides as follows:   

28.     (1)     The Minister may in writing recall a Consul General or Diplomatic Staff, if he or she:  
(a)    ceases to be a citizen of Vanuatu; or 
(b)     becomes bankrupt in or outside Vanuatu; or 
(c)    is convicted of an offence inside or outside Vanuatu that is listed under subsection 27(2) of the Leadership Code Act [CAP. 240]; or 
(d)    is convicted for offences other than those under paragraph (1)(c); or
(e)     is incapacitated by an illness; or 
(f)     is not complying with his or her performance agreement with the Minister; or 
(g)     is regularly absent from functions without providing reasonable excuse to the Director General; 
(h)     commits the State to any bilateral agreement without authorization from the Minister or Director General; or 
(i)     consistently travels for unofficial purposes without obtaining prior approval from the Director General; or 
(k)     breaches the Public Finance and Economic Management Act [CAP. 244]; or 
(l)     has acted contrary to the instruction given by the Minister; or 
(m)   brings into disrepute the integrity and reputation of Vanuatu; or 
(n)    acts contrary to the Government’s foreign policy.   

[emphasis added] 

27.    The respondents’ case was that no rights to natural justice were breached as the Minister issued a summons to Mr Bogiri dated 13 June 2025 setting out allegations against him. Then Mr Bogiri met with the Minister, but the latter was not satisfied with Mr Bogiri’s responses to the allegations and recalled him. One of those allegations was that Mr Bogiri had disregarded the Minister’s lawful instruction to relocate the Consul General’s office in Hong Kong contrary to para. 28(1)(l) of the Act which was a ground for recalling Mr Bogiri.   

28.    It was therefore a triable issue as to whether or not a summons dated 13 June 2025 had been served on Mr Bogiri. Other triable issues were whether that summons was served on Mr Bogiri prior to a briefing he attended with the Minister in relation to the allegations set out in the summons, and if and when such briefing occurred. All of these were disputed questions of fact and issues between the parties, which are triable issues. 

29.    It is therefore inexplicable why State counsel submitted in this Court that there were no disputed questions of fact. 

30.    The primary Judge correctly identified that Mr Bogiri’s pleaded claim was that no summons was served on him therefore he was not aware of any allegations against him, and no opportunity was afforded to him to answer allegations made against him.  

31.    However, the primary judge then considered Minister Ati’s evidence as to a summons to Mr Bogiri dated 13 June 2025 containing three allegations, and that the Minister met Mr Bogiri in relation to these allegations. The primary Judge also took into account Mr Bogiri’s evidence in reply that he had relocated the Hong Kong office. The Judge considered that Mr Bogiri had not given any evidence as to the other two allegations. He noted Mr Bogiri’s evidence that he met the Minister on 5 or 6 June 2025.    

32.    The primary Judge concluded that, “in all probability from the evidence presented,” he was satisfied that Mr Bogiri did attend a briefing in June 2025 during which he was given the opportunity to respond to the three allegations against him in the summons dated 13 June 2025. The primary Judge also found that, “in all probability,” Mr Bogiri was made aware of the 13 June 2025 summons.   

33.    The primary Judge therefore made findings of fact on disputed questions of fact which could only be made after the hearing of the Claim (the trial). 

34.    This Court stated as follows in Mandavah v Republic of Vanuatu [2021] VUCA 52:   

31. This Court would like to make it clear that the primary judge was not required, or indeed able, to make final determinations of fact. The issue before the primary judge was whether the claim was properly before the Court; whether Mr Mandavah had an arguable case…    

35.    As stated in Mandavah, the primary Judge was required at the Rule 17.8 conference to consider whether the claimant had an arguable case but could not make final determinations of fact. Findings of fact could only be made after the hearing of the Claim. It was therefore an error of law for the primary Judge to determine any triable issues or the merits of the Claim at the Rule 17.8 conference or following the Rule 17.8 conference. We uphold the first ground of the appeal.   

36.    The second ground of appeal advanced for Mr Bogiri was that the primary Judge erred in failing to recognize that the appellant had an arguable case for judicial review.   

37.    Mr Bogiri’s pleaded claim was that he was not served with a summons or given any written notice as to the allegations against him in terms of subs. 28(1) of the Act hence his rights to natural justice or procedural fairness had been breached. His evidence was to that effect. This was disputed. The pleaded defence was that the Minister issued a summons to Mr Bogiri dated 13 June 2025 containing allegations against him. Breaches of natural justice were denied. 

38.    In Gamaliere v Government of the Republic of Vanuatu in right of the Minister of Foreign Affairs [2023] VUSC 141, the claimant Mr Gamaliere challenged the Minister’s decision to recall him pursuant to subs. 28(1) of the Act. The Supreme Court held that the Minister’s decision to recall Mr Gamaliere was not a recall based on high policy but based on a statutory criterion therefore was subject to review by the Court as to whether the recall decision was made lawfully. The Supreme Court found that the recall decision was unlawful but declined to quash the Minister’s decision. There was no appeal against the Court’s findings that the decision to recall was unlawful, only against Hastings J’s refusal to grant a remedy: Gamaliere v Government of the Republic of Vanuatu in right of the Minister of Foreign Affairs [2023] VUCA 50.  

39.    As the Supreme Court stated in Gamaliere v Government of the Republic of Vanuatu in right of the Minister of Foreign Affairs [2023] VUSC 141 at [16] and [22] per Hastings J:  

16. What this case is about, is whether natural justice imposes an obligation on the Minister of Foreign Affairs to give a Consul General reason for his proposed recall and an opportunity to be heard before the recall decision is made. The extent of that requirement will depend on all the circumstances of the case: Michel v President of the Republic of Vanuatu and others [2015] VUCA 14 at [25]- [26]; Minister of Education and Training v Tabi and others [2023] VUCA 30 at [31]. 

…

22     Was the Minister’s decision to recall the claimant lawfully made? The short answer is no. It is now well established “in the field of public administration and employment that procedural fairness, often referred to as natural justice, requires that a reason and an opportunity to be heard be given before a decision affecting personal rights is made:” (Minister of Education and Training v Tabi and others [2023] VUCA 30 at [31]). There is nothing in the Foreign Services Act that restricts or eliminates the Minister’s obligation to give reasons and an opportunity to be heard before making a decision to recall a Consul General on a s 28(1) ground. I also agree with Mr Tari’s submission that consideration of the Consul General’s response will make the Minister’s decision more thorough and robust, in the sense the Minister will have taken into account a relevant consideration before making his decision. The wording of the ground cited by the Minister as the reason for recall provides the claimant opportunity to defend himself. I find therefore that the Minister acted unlawfully in not providing the claimant reasons for his proposed recall and in not providing the claimant with an opportunity to respond to those reasons, before deciding to recall the claimant as Consul General.

40.    We adopt the Supreme Court’s reasoning in Gamaliere v Government of the Republic of Vanuatu in right of the Minister of Foreign Affairs [2023] VUSC 141 that natural justice, or procedural fairness, requires the Minister to provide reasons for a proposed recall and an opportunity to be heard before the recall decision is made. The extent of that requirement will depend on all the circumstances of the case: Michel v President of the Republic of Vanuatu [2015] VUCA 14 at [25]- [26]; Minister of Education and Training v Tabi [2023] VUCA 30 at [31].  

41.    Mr Bogiri has a right to natural justice in the process of a recall decision against him, hence he has an arguable case.  

42.    Accordingly, we agree that the primary Judge erred in failing to recognize that the appellant had an arguable case for judicial review. The second ground of appeal has been made out.   

43.    The last ground of appeal was that the primary Judge erred in holding that the Minister’s recall decision was non-justiciable. It is not necessary for us to express a view on this given our conclusion on the first two grounds of appeal, and we do not. Argument on this is best left for the substantive hearing.  

44.    The primary Judge considered that there was another remedy available because the Minister stated in the last paragraph of the recall letter that the Government was intending to appoint Mr Bogiri to another foreign mission. If this is an issue it is best left for the substantive hearing. 

45.    As this Court stated in Lowe v Markson [2022] VUCA 34 at [17] and Teaching Service Commission v Director General in the Ministry of Education and Training [2024] VUCA 7 at [30], a Rule 17.8 conference and decision of the Court, as to whether the judicial review claim should be heard, is in the nature of a screening process, designed to weed out the frivolous or practically pointless judicial review applications. The present case is clearly not in that category. We find that Mr Bogiri has an arguable case, that he is directly affected by the decision to recall him and that there is no other remedy that resolves the matter fully and directly. It was not contested that there has been no undue delay in making the claim.  

46.    As errors have been demonstrated in the primary Judge’s decision, it must be set aside.   

G.    Result 

47.    The appeal is allowed. The decision as to Rule 17.8 matters dated 4 March 2026 is set aside and the matter remitted to the Supreme Court for a substantive hearing of the Claim by a different Judge. There is no need to revisit the Rule 17.8 process, as we have found there is an arguable case.

48.    Costs must follow the event. The respondents are to pay the appellant’s costs of the appeal fixed in the amount of VT50,000 within 28 days. 

DATED at Port Vila this 15th day of May, 2026.
BY THE COURT 

Hon. Chief Justice Vincent Lunabek