Brugger v Republic of Vanuatu

A. Introduction   

 

1. This was an urgent claim for judicial review of the order by the Minister of Internal Affairs for the removal of Claimants numbered 1-7 Hugo Brugger, Marcel Brugger, Fabienne Brugger, Olivier Brugger, Pascal Brugger, Chloe Brugger and Sandra Daly Brugger from Vanuatu, and of the order or direction under which Claimant 8 Birgit Mettel was arrested and deported.    

 

2. Also under challenge was any declaration by the Director of the Department of Immigration (the ‘Director’) declaring the Claimants as prohibited immigrants. 

 

3. This matter proceeded to the hearing of the Claim. After the lunch break, counsel informed me that the Defendant State having listened to the evidence and the Claimants’ submissions, accepted that the decision by the Minister and the declarations by the Director that Claimants 1-7 are prohibited immigrants were not served on the Claimants and accordingly, should be quashed. Counsel requested that the Court make its decision and set out its reasoning.    

 

4. This is the decision.   

 

B. Background   

 

5. Claimants 2 and 3 Marcel and Fabienne Brugger own the Aquana Resort at Eratap area on Efate island. Claimants 4-6 Chloe, Pascal and Olivier Brugger are their three children aged 13, 11 and 9 years old. They have lived for 13 years at Eratap, building the Aquana Resort and employing Ni-Vanuatu. This has been the only home that the children0 have known. They resided in Vanuatu under residence permits which had to be renewed annually.     

 

6. Marcel’s father Claimant 1 Hugo Brugger resided with Claimants 2-6 at Aquana Resort. He too resided in Vanuatu under a residence permit which had to be renewed annually.   

 

7. By Removal of Non-Citizens from Vanuatu Order No. 169 of 2023 dated 17 August 2023, the Minister of Internal Affairs Rick Tchamako Mahe in exercise of the powers conferred by paras 53A(1)(ab) and (ac) of the Immigration Act No. 17 of 2010 (the ‘Act’) ordered the removal of Claimants 1-7 from Vanuatu.   

 

8. Starting at 2am on Sunday 27 August 2023, Immigration officers supported by the Police executed the Minister’s decision by taking the Claimants 1-6 into custody and then put them on the Port Vila-Sydney flight at 7am that morning.   

 

9. Several hours after Claimants 1-6 were taken into custody, Immigration officers returned to Aquana Resort and took Claimant 7 Sandra Daly Brugger into custody and also put her on the Port Vila-Sydney flight at 7am on 27 August 2023. Ms Sandra Daly Brugger was on an extended tourist visa, being a more recent arrival to Vanuatu.    

 

10. It is unknown on what grounds or basis or pursuant to what decision or order Claimant 8 Birgit Mettel was arrested and deported.    

 

11. On 13 October 2023, the Claimants filed Urgent Claim for Judicial Review (the ‘Claim’). It is disputed.    

 

12. On 8 November 2023, I conducted a Rule 17.8 Conference and ruled that the matter be listed for hearing of the Claim: Brugger v Republic of Vanuatu [2023] VUSC 236.   

 

13. On 10 November 2023, this Court granted a stay of the Minister’s decision and the Director’s declarations of the Claimants as prohibited immigrants: Brugger v Republic of Vanuatu [2023] VUSC 237.   

 

14. The Claimants remain outside of Vanuatu.  

 

C. The Pleadings  

 

15. The Claimants 1-7 by the Claim, seek an order quashing the Minister of Internal Affairs Hon. Rick Tchamako Mahe’s decision by way of the Removal of Non-Citizens from Vanuatu Order No. 169 of 2023 dated 17 August 2023 (the ‘Minister’s decision’) and an order quashing the removal of Claimant 8 without notice and without any removal order made under the Immigration Act or any law of Vanuatu.   

 

16. The balance of the relief sought is costs and any other Order deemed suitable.   

 

17. It is alleged as follows in the Claim:   

 

(1) The Minister made his decision ultra vires his power in paras 53A(1)(ab) and (ac) of the Act as none of the Claimants had been declared prohibited immigrant that they know of, and that none of the Claimants has been given opportunity to be heard as to allegation that they have breached their visa conditions on three different occasions;  

 

(2) That the Claimants were not afforded natural justice in being given notice of the Minister’s decision and the opportunity to seek its review, including under subs. 55(3) of the Act, and that the Minister did not analyse whether or not notice was required pursuant to subs. 53A(2) of the Act; 

 

(3) That the Claimants do not know of any declaration of them as prohibited immigrants and as to any such declarations, that these were made without regard to the terms of clause 19(a) of the Immigration Visa Regulation Order No. 180 of 2011 (the ‘Visa Regulations’);  

 

(4) That Claimant 7 was on a tourist visa and there are no grounds for her arrest and deportation;  

 

(5) That Claimant 8 was not named in the decision by the Minister therefore it is unknown on what grounds she was arrested and deported;   

 

(6) That the Minister made the decision without any consideration of the State’s obligations under the Convention of the Rights of the Child (the ‘CRC’) that the best interests of the children Claimants 4-6 be a primary consideration, that none of them would be subject to cruel, inhuman or degrading treatment and that none of them be deprived of their liberty unlawfully or arbitrarily without having access to a lawyer, and were denied prompt access to legal or other appropriate assistance;   

 

(7) That the Minister’s decision was an improper exercise of statutory power being so unreasonable and done without due regard for process and without regard to Claimant 2’s efforts over a 2-year period on behalf of the Claimants to pay for and obtain visas; and   

 

(8) That the Minister’s decision was done for an ulterior motive to benefit a third party local politician in the event that the Claimants were deported.     

 

18. The Sworn statements of Marcel Brugger and Fabienne Brugger, and the Second Sworn statement of Marcel Brugger, were filed in support of the Claim.  

 

19. The State’s case as pleaded in the Defence is that the Minister made his decision on the grounds that the Claimants 1-8 were prohibited immigrants and had breached their visa conditions on three different occasions. It was pleaded that in 2021, Claimants 1-7 were served Jeffrey Markson, Director of Immigration’s letters declaring them as prohibited immigrants and their lawfulness has never been challenged. It was also pleaded that subsequently, penalty notices were served on the Claimants for residing illegally in Vanuatu without a valid visa. Finally, that the Minister decided not to give notice of the decision to the Claimants as they were already aware that they had been declared prohibited immigrants.   

 

20. The State filed the Sworn statements of Mr Markson, Minister Mahe, Mathias Tariala Garoleo and John Iatika in support of the grounds of the Defence.    

 

21. As set out in the Claim, the Claimants allege that they do not know of any order declaring them as prohibited immigrants. They have raised in para. 1 of the Claim the existence of the Director’s declarations, and whether or not they were lawfully made. It was pleaded in the Defence that the Director’s declarations were made on 7 April 2021 and have not been challenged therefore are valid. Accordingly, the Director’s prohibited immigrant declarations were also under challenge in this matter and if necessary, the Court can make any Order deemed just including as to the lawfulness or otherwise of those declarations. 

 

D. The Law  

 

22. Section 26 of the Act provides as follows:   

 

 

 

 

 

 

 

23. Section 50 of the Act provides as follows:    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24. Section 50A of the Act provides as follows:   

 

 

 

 

 

 

 

(3) Publication of information of a prohibited immigrant under this section may be made on newspaper, television, radio, internet or any other means by which information may be disseminated.   

 

25. Section 53A of the Act provides as follows:    

 

 

 

 

 

 

 

 

 

26. Section 55 of the Act provides as follows:    

 

 

 

 

 

 

 

 

 

 

 

 

 

27. Section 59 of the Act provides as follows:   

 

 

 

 

28. Section 60 of the Act provides as follows:  

 

 

 

 

29. Section 62 of the Act provides as follows:  

 

 

 

 

 

(2) The financial institution holding a security that has been forfeited must return or refund the security together with any interest paid on the security to the Director within 7 days after the date of a written request from the Director.  

 

30. Section 83 of the Act provides as follows:  

 

 

 

 

 

 

 

 

31. Clause 19 of the Visa Regulations provides as follows:    

 

 

 

 

32. The Penalty Notice Regulation Order No. 181 of 2011 (as amended) prescribes the amount of the penalty in respect of different offences prescribed in the Act as set out as follows in the Table of the Schedule:  

 

 

 

1 PENALTY AMOUNT 

 

TABLE  

 

 

33. The prescribed form for a penalty notice is set out in the Schedule to Order No. 181 of 2011.   

 

E. The Evidence and Findings   

 

34. Did the Claimants’ residence visas expire on 22 October 2019 or on 22 October 2020?   

 

35. The Claimants’ case is that is that their residence visas expired on 22 October 2020. The State’s case was that Claimants 1-6 and 8’s residence visas expired on 22 October 2019.     

 

36. Director Markson deposed in paras 3 and 4 of his sworn statement as follows:    

 

 

 

37. The documents in Attachment “JM1” are copies of residence visas for: 

 

Claimant’s name	Visa expiry date
Hugo Brugger	22 October 2019
Marcel Brugger	22 October 2019
Fabienne Brugger	22 October 2020
Chloe Brugger	22 October 2018 & 22 October 2019
Pascal Brugger	22 October 2019
Olivier Brugger	22 October 2020
Birgit Brugger	22 October 2019
Birgit Mettel	22 October 2018

  

 

 38. There are documents in Attachment “JM1” for both a “Birgit Brugger” (expiring on 22 October 2019) and for “Birgit Mettel” (expiring on 22 October 2018).   

 

39. There is no suggestion that Sandra Daly Brugger was issued a residence visa. The Claimants’ case is that she was on an extended tourist visa as she was a more recent arrival to Vanuatu. Mr Markson’s evidence is that Sandra Daly Brugger arrived on a tourist visa, and applied for an extension which was granted until 17 December 2019. Accordingly, I infer that the visas attached in Attachment “JM1” with the names “Birgit Brugger” and “Birgit Mettel” were both for Birgit Mettel but her surname was expressed as “Brugger” instead of “Mettel” in the 2019 visa.      

 

40. Attachment “JM1” consists of copies of residence permits expiring on 22 October 2018, 22 October 2019 and on 22 October 2020. The two residence visas expiring on 22 October 2020 are for Fabienne Brugger and child Olivier Brugger. These two documents directly contradict Mr Markson’s assertion in his para. 4 that the Claimants 1-6 and 8’s residence visas “expired on 22 October 2019”.    

 

41. Marcel Brugger attached as Attachment MB6 pages 26-29 to his second sworn statement copies of residence visas for Hugo Brugger, Fabienne Brugger, Birgit Mettel and himself which expired on 22 October 2020. He deposed that the children Chloe, Pascal and Olivier also had similar visas but as he is not in Vila, he cannot get access to the files.   

 

42. In the email chain between Mr Brugger and Immigration officer Stewart Toka dated October 2022 at Attachment MB5 pages 24 and 25 is a copy of Mr Toka’s email dated 12 October 2022 in which he (Mr Toka) included a screenshot of Marcel Brugger’s residence permit which expired on 22 October 2020.  

 

43. Accordingly, I reject Mr Markson’s evidence that the Claimants 1-6 and 8’s residence permits expired on 22 October 2019 as it is contradicted by his own documentary evidence and by the Claimants’ evidence. I consider that his evidence is not credible and reliable, and that I can rely on it only where it is supported by the documentary evidence.   

 

44. I find that Claimants 1-6 and 8 were issued residence permits which expired on 22 October 2020.  

 

45. Did the Claimants apply to renew their residence permits?   

 

46. The Claimants’ case is that their visa renewal applications were lodged about 3 weeks before their visas expired in October 2020 but that subsequently they did not receive renewed residence visas, and that they resubmitted their documents a number of times including applying again in 2021 for renewal of their visas. The State’s case is that they did not.        

 

47. Mr Markson deposed as follows at his para. 8:   

 

 

48. Mr Brugger attached a copy of his letter dated 4 May 2021 to the Immigration Department [Attachment MB2 to his first sworn statement]:   

 

Statement regarding Residency permits  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

49. Mr Brugger referred to his letter dated 4 May 2021 [Attachment MB2] and deposed as follows at paras 5(c) and (d) of his second sworn statement: 

 

 

 

(d) In the letter I state: “It seems now [in May 2021] my documents are missing…”, what I was referring to is that Officer John [Immigration officer], had told me that morning, my file is missing, and they could not find it. He has said there was no files at the office. (As I have deposed in my 1st statement I had been told on 2 occasions our file was “lost”. This same Officer was extremely rude, and I remember his telling me words to the effect “you white people think you can come here and take over the place”, I was very offended and told him that was inappropriate.)    

 

50. In response to Mr Markson’s para. 8, Marcel Brugger deposed as follows at para. 23 of his second sworn statement:    

 

 

 

(b) Second, as I have already stated, I was told on a number of occasions our files were “lost”. That is why we needed to (one example) give documents again. See for example emails between myself and Stewart Toka (MB5 pages 24 & 25) noting I had met with him, and provided him copies of my residence Visa (he told me they had lost my file and so couldn’t find it), along with the passports, my business licence and VIPA.   

 

51. Mr Brugger repeated at his para. 26:   

 

26. Paragraph 11 [of Mr Markson’s sworn statement]. This is the first time I have ever seen these JM7 [prohibited immigrant] declaration letters, and again I restate over and over again:    

 

 

 

 

52. Mr Marcel Brugger deposed as follows at paras 9-18 of his second sworn statement:     

 

 

 

 

12. On 8 October 2021 I wrote to DG Markson after I had met with him that morning. That meeting was to discuss the next years Visa (our Visas were dated 21 October of each year). This is what I wrote.     

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

18. Not once, in all the various meetings, calls, emails, was there ever any mention, reference or anything that we were prohibited immigrants as now being claimed, nothing, nothing, nothing!!!    

 

53. Attachment MB5 consists of copies of emails between Mr Brugger and different Immigration Officers from 8 September 2021 to 31 October 2022 in which Mr Brugger continuously followed up the Claimants’ residence visa renewals to no avail.   

 

54. A copy of Mr Brugger’s email to Mr Markson dated 8 October 2021 was attached at Attachment MB5 page 5. A copy of Mr Brugger’s 19 October 2021 email was attached at Attachment MB5 page 6. 

 

55. At Attachment MB5 page 20 is an email from Immigration officer Olivier Napuat in which he stated that the Claimants “provided documents to one of our officers under suspension and the documents didn’t reach Immigration Office.”   

 

56. Mr Brugger stated as follows at the bottom of Attachment MB5 page 25:   

 

 

 

 

 

 

57. Mr Brugger deposed at paras 32-36 of his second sworn statement as follows:   

 

 

 

 

 

 

58. This evidence is not contradicted. Indeed, Mr Markson at his para. 12 referred to the Claimants’ “numerous visits to the Department, when they had several meetings with Immigration Officers”.   

 

59. Mr Markson attached at Attachment “JM7” copies of his letters dated 7 September 2021 declaring Claimants Hugo, Marcel, Fabienne and Sandra Brugger and Ms Mettel as prohibited immigrants and copies of the following passports:    

 

a) Birgit Mettel, issued on 17 May 2021; 

 

b) Pascal Brugger, issued on 19 May 2021; 

 

c) Olivier Brugger, issued on 26 November 2020; and 

 

d) Chloe Brugger, issued on 24 November 2020.  

 

60. Claimants’ counsel Mr Fleming submitted that the only way that the Immigration Department obtained copies of those passports was because visa renewal applications were submitted after October 2020. I agree. Mr Markson’s evidence that no visa renewal applications were received since 1 October 2020 is contradicted by the copies of passports he provided which were issued after October 2020 therefore I infer that these were provided by the Claimants in following up after October 2020 their visa renewal applications.    

 

61. I therefore find as follows:    

 

a) That the Claimants applied in or before October 2020 for renewal of their visas but did not subsequently receive renewed residence visas;  

 

b) Mr Brugger followed up over the next 2-year period for the renewal of the Claimants’ visas and resubmitted their documentation a number of times which included in 2021, visa renewal applications for the following year; 

 

c) The Claimants made numerous visits to the Immigration Department and had several meetings with Immigration officers; 

 

d) Mr Brugger was still following up in August 2023 for the Claimants’ visas and only days before their deportation, had understood that the visas were ready for collection; and 

 

e) The State is responsible for the absence of valid visas for the Claimants since 22 October 2020.         

 

62. Were the Claimants served Penalty Notices? 

 

63. The Claimants’ case is that they were not served Penalty Notices. The State’s case is that they were aware of the Penalty Notices.    

 

64. Mr Markson attached at Attachment “JM6” copies of the following undated Penalty Notices in relation to alleged offences contrary to subs. 26(4) of the Act:   

 

 

 

65. It is stated in Ms Daly Brugger’s Penalty Notice as follows:    

 

 

 

 

 

 

66. It is stated in the Penalty Notices for the other adult Claimants as follows:    

 

 

 

 

 

 

 

67. It is stated in the Penalty Notice for the 3 children Claimants as follows:    

 

Detail of allege offence/s   

 

 

 

 

 

 

68. Mr Markson deposed at his para. 10 that the Claimants were informed that Penalty Notices had been issued against them for breaching their visa conditions as evidenced by Mr Brugger’s Attachment MB2 letter dated 4 May 2021.  

 

69. However, reference to Mr Brugger’s Attachment MB2 does not assist. Mr Brugger did not refer to any Penalty Notices in that letter but to the possibility of receiving a large fine for not lodging the renewal. Penalty Notices impose a penalty which I can understand Mr Brugger referring to as a “fine”. If the Claimants had received the Penalty Notices purportedly dated 29 April 2021, most of which demanded payment of VT250,000, surely he would have referred to it in his letter dated 4 May 2021. Instead, Mr Brugger stated that he was concerned about the possibility of receiving a large fine, asked that the Department consider not issuing him a fine and apologised for the situation.    

 

70. In Mr Brugger’s Attachment MB5 page 1 to his first sworn statement are the following emails:   

 

 

 

 

 

 

 

 

 

 

 

 

71. Mr Brugger deposed as follows at paras 5(a) and (b), 24 and 25 of his second sworn statement:   

 

 

 

 

72. I infer from Mr Brugger’s email to the Director dated 8 September 2021 and the ensuing email between Graziella Thavo and Madeleine Natonga (who I assume are Immigration Department staff) [Attachment MB5 page 1] that Mr Brugger was served a Penalty Notice on 8 September 2021 which led him to him immediately sending his email requesting a meeting with the Director. From the chain of emails in Attachment MB5, it appears that he finally met with the Director in or around October 2021, which led to Mr Brugger’s 8 October 2021 email to the Director [page 5]. I assume this is what Mr Brugger was referring to at para. 25 of his second sworn statement in saying that he, “immediately took action to resolve this, and my belief was this was dealt with in later events and finished and was not being pursued as at no time when meeting with these people did anyone ever say “By the way, you haven’t paid that fine we issued.”   

 

73. In the circumstances, I find that the Penalty Notices with due dates of 29 April 2021 at Attachment “JM6” were served on Mr Brugger on 8 September 2021.      

 

74. Were the Director’s prohibited immigrant declarations of 7 April 2021 served on the Claimants?   

 

75. The Claimants’ case is that they were never served the Director’s declarations that they were prohibited immigrants. The State’s case is that the Director made his declarations on 7 April 2021 and that they were served on the Claimants and have not been challenged.    

 

76. As to the latter contention, I previously held in this Court’s 10 November 2023 decision as to the Urgent Stay Application that the Director’s declarations as to prohibited immigrants are under challenge in the present matter: Brugger v Republic of Vanuatu [2023] VUSC 237.  

 

77. Mr Markson deposed the following in his paras 11 and 12:      

 

 

 

78. There is no evidence otherwise of service on the Claimants of the Director’s prohibited immigrant declarations.   

 

79. The prohibited immigrant declarations for each of the 5 adult Claimants is dated 7 September 2021 in that that is the date at the top of each letter. However, it is stated in the body of the letter that the declaration and the publication of each Claimant’s name in the prohibited Immigrant lists was made on 7 April 2021.   

 

80. It was stated in each prohibited immigrant declaration in identical terms as follows [Attachment “JM7”]:   

 

 

 

 

 

 

 

81. The State’s case is that the Director’s prohibited immigrant declarations were made on 7 April 2021 (despite the letters being dated 7 September 2021). Accepting that they were made on 7 April 2021, each of those declarations ended with a statement that each Claimant was to make every necessary arrangement to leave the country and was banned from entering Vanuatu until their name had been removed from the prohibited immigrant list.   

 

82. The State also relied on Penalty Notices to the Claimants which carried due dates of 29 April 2021 and 22 September 2021. I have already held that the Penalty Notices with the 29 April 2021 due dates were served on Mr Brugger on 8 September 2021. Each of those Penalty Notices included a statement that the Claimant was banned from leaving the country if the penalty fees were unpaid.    

 

83. It does not, with respect, make sense that the Claimants were declared as prohibited immigrants on 7 April 2021 and told to leave the country and then subsequently, issued Penalty Notices with due dates of 29 April 2021 and 22 September 2021 in which they were banned from leaving the country if the penalty fees had not been paid.   

 

84. Mr Brugger deposed as follows at paras 31(a), (b) and 32 of his first sworn statement:   

 

 

32. After we were arrested and deported, I saw on Facebook many pictures that could only have been taken by the arresting officers of us, there was one posted of me sitting in my underwear with my crutches, another of the family being bundled onto the plane, others of my father passport.  

 

85. Attachment MB4 to Mr Brugger’s first sworn statement reads as follows:   

 

 

 

 

 

 

 

 

 

 

 

 

86. Mr Brugger deposed as follows at paras 6-8 of his second sworn statement:   

 

 

 

 

(my underlining)  

 

87. Mr Brugger deposed as follows at paras 26 and 27 of his second sworn statement:   

 

 

 

 

 

 

 

88. The Director’s prohibited immigrant declarations are asserted to have been made on 7 April 2021. Mr Brugger’s evidence is that he and the Claimants were never served the Director’s prohibited immigrant declarations. Surely if they had been served, Mr Brugger would have mentioned it in his letter to the Department dated 4 May 2021 [Attachment MB2]. Surely if the Director’s declarations had been served, Mr Brugger would have raised it in his meeting with the Director following which he sent his 8 October 2021 email to the Director: para. 12, Mr Brugger’s second sworn statement. Mr Brugger again emailed the Director on 19 October 2021: para. 13, Mr Brugger’s second sworn statement. If the Director’s declarations had been served, surely Mr Brugger would have mentioned it in that email? Instead, Mr Brugger referred in both emails to following up renewal of his and his family’s residence visas.    

 

89. Even if the Director’s prohibited immigrant declarations were made on 7 September 2021, he and Mr Brugger met following which Mr Brugger sent his 8 October 2021 email. If the declarations had been served, surely Mr Brugger would have mentioned it in his 8 October 2021 and 19 October 2021 emails. I must infer that Mr Brugger was not told about nor served those declarations. 

 

90. There is no evidence to support Mr Markson’s assertion that the Claimants were served his declarations that they were prohibited immigrants. In the absence of evidence of service on the Claimants, I find that the Director’s declarations that the Claimants are prohibited immigrants at Attachment “JM7” were not served on the Claimants. 

 

91. What evidence is there of breach of CRC obligations?  

 

92. As to the allegations in relation to breach of the State’s obligations and conversely of the three children Claimants’ rights under the CRC, Mr Brugger deposed as follows in paras 3, 4, 12-14  and 19-22 of his first sworn statement:  

 

 

4. We are all suffering from anxiety, constantly “on edge”, and we are trying to make sense of what happened.   

 

 

 

 

Children  

 

 

 

 

 

93. Both Mr Brugger and Mrs Brugger’s evidence contained harrowing accounts of the way the Minister’s decision was executed on Sunday 27 August 2023 morning, the lack of legal or other assistance for their children and the effect on them all. In the present matter, I was concerned only with reviewing the decision-making process resulting in the declarations by the Director and the decision by the Minister. The manner of the Claimants’ removal is a matter for other proceedings.  

 

94. The evidence vis-à-vis the children is uncontradicted. It is clear from the evidence that the children Claimants were denied legal and other appropriate assistance.  

 

F. Discussion  

 

Claimant 8   

 

95. It was pleaded in the Claim that the grounds or basis for or decision or order under which Claimant 8 Ms Mettel was arrested and deported are unknown.    

 

96. The Defence is silent as to what the grounds for Ms Mettel’s arrest and deportation were, and as to the decision or order under which she was arrested and deported. Counsel could not assist as to this aspect of the State’s case.  

 

97. Vanuatu is a country of laws. Those laws apply to all persons including the State. In complying with the law, the State upholds the rule of law. It beggars belief that the State through its office-holders and officers effected the forcible removal of Ms Mettel from the country and has not identified any legal basis for doing so. The State’s conduct is nothing short of egregious and is to be condemned in the strongest terms.    

 

98. I therefore conclude that there was no lawful basis for Ms Mettel’s arrest and deportation. Orders will be made quashing the decision or order for her arrest and deportation, and declaring her arrest and deportation unlawful.     

 

Claimants 1-7   

 

99. Only Claimants 1-7 were named in the decision of the Minister ordering their removal.  

 

100. Was the Minister’s decision to remove Claimants 1-7 made within or beyond (ultra vires) power? 

 

101. The Minister’s decision was made on 17 August 2023 and stated as follows:    

 

In exercise of the powers conferred on me by paragraphs 53A(1)(ab) and (ac) of the Immigration Act No. 17 of 2010, I, the Honourable RICK TCHAMAKO MAHE, Minister of Internal Affairs, make the following Order.   

 

1 Removal from Vanuatu   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

102. The 2 grounds for the Minister’s decision were that (i) Claimants 1-7 are prohibited immigrants; and (ii) they breached their visa conditions on three different occasions.    

 

 

103. I have already held above that the Director’s prohibited immigrant declarations of 7 April 2021 were not served on Claimants 1-7. That explains why these were not challenged until the present proceedings.   

 

104. The failure to serve the Director’s prohibited immigrant declarations on the Claimants constitutes a breach of natural justice as they were denied the opportunity to seek review of the declarations. 

 

105. The prohibited immigrant declarations for each of the 5 adult Claimants is dated 7 September 2021 but is stated to have been made on 7 April 2021 [Attachment “JM7”] and in identical terms as follows:  

 

 

 

 

 

 

 

106. The prohibited immigrant declarations are stated to have been made due to: (i) the Claimants remaining in Vanuatu without a valid visa since 22 October 2020; (ii) a Penalty Notice was served on 29 April 2021 for residing illegally but this was not complied with; and (iii) breached clause 19(a) of the Visa Regulations.     

 

107. I now consider each of these in turn.  

 

(i) Allegedly remaining in Vanuatu without a valid visa since 22 October 2020  

 

108. As held above, the Claimants applied on or before October 2020 for renewal of their residence visas. They applied in time for their visas to be renewed, followed this up exhaustively yet their visas were not renewed and they were suddenly deported without notice. The State is responsible for the absence of valid visas for the Claimants since 22 October 2020. 

 

109. I hold therefore that this is not a valid ground for declaring the Claimants as prohibited immigrants.    

 

 

(ii) Penalty Notices allegedly served on 29 April 2021 but not complied with 

 

110. The due date for the adult Claimants’ Penalty Notices was 29 April 2021 and for the children, 22 September 2021. 

 

111. There is no evidence that the Penalty Notices were served on 29 April 2021 but I have held that they were served on 8 September 2021. Given the dates, it must have been only the adult Claimants’ Penalty Notices which were served on 8 September 2021.   

 

112. The purpose of a penalty notice is to inform a non-citizen that they are suspected of having committed an offence under the Act. A non-citizen who is served a penalty notice may elect, within 30 days after the date of the notice, to pay to the Director the amount of the penalty prescribed by the regulations if they do not wish to have the matter determined by a court: subs. 83(2) of the Act.   

 

113. If the amount specified in the penalty notice is paid, that non-citizen will not be liable to any further proceedings for the alleged offence.   

 

114. There is no mandatory requirement imposed by a Penalty Notice. It is a matter for the non-citizen who has been served if he or she elects to pay the amount of the penalty (and thereby evade legal proceedings), otherwise it is for the State to prosecute them him or her for the alleged offence.  

 

115. It follows that this also is not a valid ground for declaring Claimants 1-7 as prohibited immigrants.   

 

 

(iii) Alleged breach of clause 19(a) of the Visa Regulations   

 

116. Clause 19(a) of the Visa Regulations provides as follows:    

 

 

 

117. Persons who remain in Vanuatu for more than 30 days after the expiry of their visas “without a compelling reason” and “without making a valid application for a visa” are prescribed prohibited immigrants pursuant to clause 19(a) of the Visa Regulations.  

 

118. I have already held above that Claimants 1-7 applied for renewal of their visas. Accordingly, the second limb of clause 19(a) of the Visa Regulations is not satisfied.  

 

119. The Bruggers owned and lived at Aquana Resort which was the business that they made a living from, their children went to school here and this was the only home that they have known. These are all compelling reasons for remaining in Vanuatu for more than 30 days after the expiry of their visas. Accordingly, the first limb of clause 19(1) of the Visa Regulations also is not satisfied.   

 

120. Accordingly, clause 19(a) of the Visa Regulations does not apply to Claimants 1-7.   

 

121. In conclusion, none of the grounds relied on in the Director’s declarations of the Claimants as prohibited immigrants are made out and therefore there was no lawful basis for them to be declared as prohibited immigrants. Accordingly, those declarations by the Director will be quashed and declared unlawful.      

 

122. It follows that the Claimants were not prohibited immigrants and that is not a valid ground for the Minister’s decision ordering their removal from Vanuatu.  

 

123. An order will also be made for the removal of the Claimants’ names from the prohibited Immigrants Lists referred to in the Director’s declaration letters, and from any other publication including the Minister’s press release on Facebook dated 28 August 2023 and from any other publication in which they were publicised as being prohibited immigrants.    

 

124. There will also be an order for a public apology by the State.  

 

2nd Ground of Minister’s decision: Alleged breach of visa conditions on three different occasions    

 

125. The State’s case is that the Claimants were residing in Vanuatu without a valid visa therefore breached their visa conditions on three different occasions. This is denied.    

 

126. It is an offence against subs. 26(4) of the Act for a non-citizen to remain in Vanuatu without holding a valid visa. The penalty for this offence is set out in subs. 26(5) of the Act. If a non-citizen is convicted of this offence then that can be counted as a breach of their visa condition.    

 

127. However, none of the Claimants have been prosecuted or convicted of offending against subs. 26(4) of the Act, therefore a conviction cannot be pointed to as evidence that they breached their visa condition on any occasion.   

 

128. Alternatively, a non-citizen who is served a penalty notice may elect, within 30 days after the date of the notice, to pay to the Director the amount of the penalty prescribed by the regulations if they do not wish to have the matter determined by a court: subs. 83(2) of the Act.   

 

129. If the amount specified in the penalty notice is paid, that non-citizen will not be liable to any further proceedings for the alleged offence.   

 

130. The only Penalty Notices in respect of the Claimants were those at Attachment “JM6”. As these penalty notices were never accepted by the Claimants by paying the penalties specified, the Penalty Notices cannot be and are not evidence that the Claimants breached their visa conditions on any occasion.   

 

131. In the absence of any convictions of the Claimants in respect of subs. 26(4) of the Act and in the absence of any penalties paid pursuant to a penalty notice, it cannot be and has not been established that the Claimants breached their visa conditions on three different occasions. Accordingly, this is not a valid ground for the Minister’s decision ordering their removal from Vanuatu.  

 

132. In the circumstances, the Minister’s decision was made ultra vires or beyond the power conferred by para. 53A(1)(ab) of the Act as Claimants 1-7 were not lawfully declared as a prohibited immigrants under the Act, nor under para. 53A(1)(ac) of the Act as it cannot be established that the Claimants breached their visa conditions on three different conditions.  

 

133. It follows that the decision by the Minister will be quashed and declared unlawful.    

 

134. Did the Minister consider whether or not notice was required under subs. 53A(2) of the Act?   

 

135. The Claimants’ case is that they were not offered natural justice in being given notice of the Minister’s decision and the opportunity to seek its review, including under subs. 55 (3) of the Act, and that the Minister did not analyse whether or not notice was required pursuant to subs. 53A(2) of the Act.   

 

136. The State’s case was that the Minister did consider whether or not to give notice pursuant to subs. 53A(2) of the Act and decided not to as the Claimants were already aware that they had been declared prohibited immigrants. In addition, both the Director’s prohibited immigrant declarations and Penalty Notices had been served in 2021 therefore the Claimants were fully aware of the situation and had had ample time to seek redress but had not done so.   

 

137. Minister Mahe’s evidence confirms that he did consider whether or not to give notice of his decision, and that he decided to proceed without giving them notice. His reasons included that the Director informed him that the Claimants were fully aware that they had been declared prohibited immigrants, they were fully aware of the Penalty Notices but had failed to pay any ‘fines’ and that they had failed to lodge valid visa renewal applications.   

 

138. As already set out above, the prohibited immigrant declarations were never served on the Claimants and they were not aware that they had been declared prohibited immigrants. Therefore the Minister was misinformed on that score.  

 

139. Also as set out above, there was no mandatory requirement to pay any penalty specified in a Penalty Notice. Accordingly, the Minister was also misinformed that there had been a failure on the Claimants’ part to pay penalties (‘fines’).   

 

140. The Minister was also misinformed that the Claimants had failed to lodge valid visa renewal applications. As already held above, they did lodge visa renewal applications on or before October 2020 and then subsequently but it was the Immigration Department who for unknown reasons did not issue renewed visas.   

 

141. In the circumstances, the Minister considered whether or not to give notice to the Claimants pursuant to subs. 53A(2) of the Act but took into account information that was incorrect.    

 

142. Is notice required of a s. 53A removal order?   

 

143. The State argued that the effect of subs. 53A(3) of the Act is that a s. 53A removal order is not subject to subs. 55(3) of the Act which provides that a removal order takes effect when the period for applying to the Supreme Court for a review of the order has expired or if an order has been made within that period, when the application is finally determined.  

 

144. Justice Goldsbrough dealt with this in his Decision on Preliminary Questions of Law in Gil Jang Yoon v Republic of Vanuatu [2023] VUSC 239; Civil Case 1893 of 2022 (3 February 2023). That was a proceeding in which the two Applicants challenged, inter alia, a s. 53A order for their removal from Vanuatu. Counsel posed the following preliminary questions of law for the Court to answer: see para. 6 of the Gil Decision:     

 

(1) Whether the Removal Order made pursuant to section 53A of the Immigration Act is subject to sections 54, 55(3) and 59 of the Immigration Act?   

 

 

 

 

145. Justice Goldsbrough noted as follows at paras 9-11, 13, 15 and 17-19, of the decision:   

 

 

 

 

 

 

 

 

 

 

 

 

146. The Judge stated at para. 22 of the Gil Decision, relevantly, and then set out in para. 23 the answers to the questions as follows:  

 

 

 

 

 

 

147. I agree with Goldsbrough J’s reasoning in Gil Jang Yoon v Republic of Vanuatu [2023] VUSC 239 and adopt it. Accordingly, I do not agree with the submission on behalf of the State that a s. 53A removal order is not subject to subs. 55(3) of the Act. Such orders are subject to subs. 55(3) and so I would add to the reasoning in the Gil Decision that therefore, any removal order made pursuant to subs. 53A(1) of the Act must be served on the persons the subject of the order in order that they can exercise their right to seek review of the removal order. 

 

148. In the present matter, the decision of the Minister which was an order under s. 53A for the removal of Claimants 1-7 from Vanuatu was not served on them. The non-service of the Minister’s order was a failure by the State to comply with its legal obligations as set out in Ayamiseba and in Gil, and has resulted in the Claimants not being afforded natural justice in having the opportunity to seek review, including under subs. 55(3) of the Act, of the Minister’s decision.   

 

149. Was the Minister’s decision made for an ulterior motive to benefit a third party?  

 

150. Given that the Minister’s decision will be quashed on other grounds, I give no further consideration to this issue.     

 

151. Did the State comply with its obligations under the CRC?  

 

152. Article 3(1) of the CRC provides as follows:   

 

 

 

153. Article 37(d) of the CRC provides as follows:   

 

 

 

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.  

 

154. The State did not answer this part of the Claim in its Defence. 

 

155. It is clear from the Claimants’ evidence that the children Claimants Chloe, Pascal and Olivier Brugger were deprived of their liberty when they were taken into custody on 27 August 2023 by the Immigration officers and Police. It is also clear that they were denied prompt access to a lawyer and other appropriate assistance as is their right under Article 37 of the CRC. The State did not file any evidence to contradict this.      

 

156. The children Claimants had lived in Vanuatu all of their lives, they attended school here and their home was here with their parents. They were removed from Vanuatu without notice of the Minister’s decision. I consider that in doing so and in denying the children prompt access to legal and other appropriate assistance, the State failed to discharge its obligations under Article 1 of the CRC for the best interests of the child to be a primary consideration.   

 

157. This too is cause to quash the Minister’s decision and to declare it unlawful.   

 

G. Costs

 

158. Costs shall follow the event. The Claimants seek costs on an indemnity basis, citing rule 15.5 of the Civil Procedure Rules (‘CPR’) and the decisions in Tidewater Holding Limited v Kramer Ausenco Vanuatu Limited [2022] VUSC 157 and Kramer Ausenco (Vanuatu) Ltd v Supercool Vila Ltd [2018] VUCA 29. Mr Bong submitted that the costs should be on the standard basis and be taxed if not agreed.  

 

159. The State’s actions which resulted in the Claimants bringing these proceedings were without good cause and egregious, and have resulted in costs that the Claimants would not have incurred otherwise not to mention the upheaval that has been caused to them and to their lives. In the circumstances, I consider indemnity costs are appropriate and there will be an order for the Defendant to pay the Claimants’ costs of 80 hours (which is a discount) of Mr Fleming’s time plus VAT totalling VT3,680,000.    

 

H. Result and Decision

 

160. The decision by the Minister of Internal Affairs by way of the Removal of Non-Citizens from Vanuatu Order No. 169 of 2023 dated 17 August 2023 is quashed and declared unlawful.    

 

161. The removal from Vanuatu of Claimants 1-7 Hugo Brugger, Marcel Brugger, Fabienne Brugger, Olivier Brugger, Pascal Brugger, Chloe Brugger and Sandra Daly Brugger is declared unlawful.  

 

162. The decision or order for the arrest and deportation of Claimant 8 Birgit Mettel is quashed.   

 

163. The arrest and deportation of Claimant 8 Birgit Mettel is declared unlawful.  

 

164. The declarations by the Director of Immigration of Claimants 1-7 as prohibited immigrants are quashed and declared unlawful.   

 

165. The Penalty Notices directed to the Claimants with due dates of 22 September 2021 are declared unlawful.  

 

166. The Defendant is to forthwith remove the Claimants’ names from the prohibited Immigrants Lists referred to in the Director’s declaration letters, and from any other publication including the Minister’s press release on Facebook dated 28 August 2023 in which they were publicised as being prohibited immigrants.    

 

167. The Defendant is to issue a public apology to the Claimants.    

 

168. The Defendant is to forthwith pay for the cost of the Claimants’ airfares and travel (including domestic flights within Australia) to return to Vanuatu.   

 

169. The Defendant is to forthwith reimburse any of the Claimants’ immigration bonds and securities that may have been used in their unlawful removal from Vanuatu.   

 

170. Costs shall follow the event. The Defendant is to pay costs to the Claimants on an indemnity basis fixed at VT3,680,000. The costs are to be paid within 28 days.  

 

171. The stay order granted on 10 November 2023 is discharged.