Supreme Court
JUDGMENT
1. There are three matters pending involving the same parties to each, all relating to the same decision. That decision was to deport the applicants. The decision, of the responsible Minister, was challenged in a Constitutional Petition, a Judicial Review and an appeal brought under the relevant provisions of the Immigration Act.
2. The original decision was made on 21st March 2023 and the applicants deported immediately and without notice thereafter. Subsequently, on 25th January 2024 the decision was irregularly revoked.
3. At an early stage, a decision of this Court was published on the constitutionality of the legislative provision providing for the making of an order such as was made against a non-citizen. The decision, published on, has not been the subject of any appeal. That decision followed a precedent set by the Court of Appeal in Ayamiseba v Attorney General [ 2006] VUCA 21.
4. In that decision, the government was criticized for acting before the relevant appeal period has expired.
5. The government, in turn, accepted that its actions were unlawful in this matter. The applicants were offered the remedy of returning to the country to allow the appeal period to expire, but counsel advised that the applicants did not seek that remedy.
6. Other than the question of an infringement of the right to a speedy and fair trial, there is noting left in the Constitutional petition to be determined. The principal challenge to the lawfulness of the legislation failed.
7. Counsel sought to persuade this Court to deal with the speedy criminal trial question and submitted that the Court of Appeal had set down that matter must be dealt with through a Constitutional petition and by a different court to the criminal proceedings. Court of appeal authorities, subsequently considered, suggest that, whilst the matter should be properly brought by way of a Constitutional petition, it should be dealt with by the criminal trial judge and no other judge sitting in the Supreme Court. See Kalosil v Republic of Vanuatu [2016] VUCA 35 and Kalnpel v The Government of the Republic of Vanuatu [ 2023] VUCA 10.
8. Given those authorities, this Court determines to separate that part of this petition relating to the criminal trial to allow the criminal judge to determine the question raised. The only comment that this Court needs to make is that both applicants could have made themselves available for trial when the order deporting them was revoked. One returned shortly after that event, another did not return then and may not have eve returned yet.
9. The Constitutional petition is other wished dismissed with no ancillary order made other than as to costs. As to costs, this Court makes no order, the parties can pay their own costs. The applicants did not show any unconstitutionally in this Court. They either instigated or, in any event, took advantage of the extrajudicial revocation of the order against which relief was sought. In those circumstances, awarding costs in their favour would be an affront to justice.
10. As for the Judicial Review of the deportation order, the only remedy available is the quashing of the order. Given that the order has been revoked and the defendant Republic accepts that it has been revoked, the claim is dismissed as no remedy remains available to this Court. Again, no order for costs is made for the same reasons as set out above.
11. As far as the appeal against the Minister’s decision is concerned, there is nothing left to decide, given that the Minster has now substituted a different decision.
12. This Court earlier referred to irregularity in the revocation of the original order for deportation. That is a reference to the fact the Attorney General’s chambers drafted no order as would be expected if legislative provisions were being followed. Hence, there was no timely gazetting of the said revocation. The Minister has confirmed his instructions that the revocation should remain in force, which is a matter for him. He has accepted on behalf of his administration that such revocation may render the Republic liable to pay damages. Time has been allowed for counsel to negotiate on that question, but the time has not been spent productively and no agreement on damages has been reached. In part, this is because counsel for the claimants is reluctant to begin any assessment until both clients have returned, and one of them remains unwilling to return without orders from this Court guaranteeing that he will be granted the residence permit he requires.
13. Such an order is beyond the power of this Court as the Court of Appeal pointed out in Republic of Vanuatu v brugger [2024] VUCA 9. The grant or refusal of an immigration permit falls within the ambit of the Director of Immigration, not the Supreme Court. This Court will not usurp that power but reserves the right to review its exercise.
14. It will never be known why the Minister decided to revoke the deportation order whilst these proceedings were pending. It is not mere speculation, thought, to suggest that it is unlikely that the would make such a decision without being prompted to do so. Whether he was prompted by one or both applicants or those who support them matters not. Counsel for the applicants maintains that he was not involved in any negotiations and there is no evidence to suggest that. It remains the case that the applicants have benefited from whatever intervention caused this extrajudicial order.
15. Given the Minister’s decision not to involve the Attorney General’s Chambers in adopting the regular drafting process for the order, one is left to question why unorthodox procedures were adopted. Given that the Director of Immigration allowed one of the applicants back into the jurisdiction even though the revocation order has not been gazetted, his department must have been given some indication by the Minister that the order should be recognised.
16. The order was made in compliance with Vanuatu’s international treaty obligations, following a request from another State party requesting mutual assistance in criminal matters, the Republic may now be said to be in breach of its obligations under that treaty. Whether the requesting state made an invalid request in the first instance is not usually the subject of litigation, and certainly the requesting country in those proceedings has not been offered the opportunity to defend its request.
17. The applicants have benefited from the decision of the Minster whether they asked for the decision themselves or not. It is difficult to accept that, having accepted the benefit of that order, they should further benefit in these proceedings with any order for costs and / or damages.
DATED at Port Vila this 17th day of November 2025
BY THE COURT
Hon. Justice EP Goldsbrough