Attorney General v Lambourne [2022] KICA 7; Civil Appeal 6 of 2021 (12 August 2022)

IN THE KIRIBATI COURT OF APPEAL
APPELLATE JURISDICTION HELD AT BETIO		Civil Appeal 6 of 2021
REPUBLIC OF KIRIBATI		Civil Appeal 5 of 2021
BETWEEN	ATTORNEY-GENERAL	APPELLANT
AND	DAVID LAMBOURNE	RESPONDENT
Hearing:	12 August 2022
Coram:	Blanchard JA Hansen JA Heath JA
Hearing:	11 August 2022
Counsel:	Mr Monoo Mweretaka for Appellant
	Mr Perry Herzfeld SC for Respondent
Judgment:	12 August 2022

JUDGMENT OF THE COURT

[1] This judgment should be read in conjunction with our judgment of 11 August 2022 in which we made an order that:

1. The Attorney-General and any person exercising authority under the Immigration Act 2019, shall take all steps necessary to ensure that the respondent is not deported from Kiribati pending further order of this Court.
   

[2] The respondent was not deported yesterday although it appears from what we have been told by counsel and from a report in the online Guardian newspaper that immigration officers and police attempted to force him onto a departing plane. Their efforts were unsuccessful but appear to have been in clear breach of our order which we understand had been shown to them by a court officer.

[3] Such behavior is unacceptable and risks putting the Attorney-General and the persons directly concerned in contempt of court. It must cease.

[4] Since we delivered our judgment yesterday three things have happened. First, Te Beretitenti has, acting under s. 138 of the Constitution, purported to "recall, vacate and nullify" respondent's appointment of 10 May 2018 as a Judge of the High Court and reappointed him for a term that expired on 30 June 2021.

[5] We make two points about this. It is implicit that it has now been accepted that the respondent did in fact continue to hold a valid warrant, as the Chief Justice found in his judgment of 11 November 2021, in respect of which notice of abandonment of the appeal by the Attorney-General has been filed. The second point is that, on a provisional view, we doubt the validity of the use of s. 138 because the power to amend or revoke an instrument is exercisable only "in like manner" to the power to make the instrument; and, in the case of an instrument appointing a High Court Judge, the power to make it is conditional upon prior advice to do so from the Chief Justice sitting with the Public Service Commission. The warrant document issued yesterday does not mention any such advice, and the suspension of the Chief Justice made his participation impossible.

[6] The second thing that has happened is that a further deportation order has been issued, in this instance under s.79 of the Immigration Act by Te Beretitenti himself, acting as a Minister of Immigration. It states that the respondent's liability for deportation is because he has been declared a threat or risk to security. "Security" is defined in s.4 as follows:

"security"-

(a) means-

• (i) the defence of Kiribati:
• (ii) the protection of Kiribati from acts of espionage, sabotage, and subversion, whether or not they are directed from or intended to be committed in Kiribati:
• (iii) the identification of foreign capabilities, intentions, or activities in or relating to Kiribati that adversely affect Kiribati's international well-being, reputation, or economic well-being:
• (iv) the protection of Kiribati from activities in or relating to Kiribati that-
  • (A) are influenced by any foreign organisation or any foreign\person; and
  • (B) are clandestine or deceptive, or threaten the safety of any person; and
  • (C) adversely affect Kiribati's international well-being, reputation, or economic well-being:
• (v) the prevention of any tenorist act and of any activity relating to the carrying out or facilitating of any tenorist act:
• (vi) the prevention, investigation, and detection of organised crime, including transnational organised crime; and

(b) in an international security context, also includes the safety and stability of the international community through co-operative measures such as international conventions and other arrangements or agreements between countries.

[7] We are of the view that, as with the order made under s.87, it is reasonably arguable that any deportation under the order issued under s. 79 is unlawful; nothing we heard from Mr Mweretaka today persuaded us that sufficient grounds exist for an order under s.79. And, again the balance of convenience favours the grant of interim relief.

[8] Therefore order (a) in our judgment of 11 August 2022 is now extended to apply to any steps to deport the respondent under either of the deportation orders made yesterday or otherwise. Likewise, the applicant will need to make a formal application directed to the der under s.75. We will hear that on 19 August. The same timetable as in order (b) of our earlier judgment is to be followed. We record in this connection Mr Mweretaka's assurance that the Government and persons working for the Government will abide by any orders that this Court now makes.

[9] The third event that has happened is that the respondent has been detained under the Immigration Act at a motel. Counsel acting on his behalf have made an urgent application to have him released from that detention. We note that s.123(c) of the Act contemplates that a Judge may order such release. Furthermore, the High Court has an inherent jurisdiction, which this Court can exercise under s. 11 of the Court of Appeal Act, to grant bail in the circumstances of this case, as explained by the New Zealand Supreme Court in Zaoui v Attorney-General SC CIV 13/2004, 25 November 2004 at We have been shown nothing in the Immigration Act which abrogates what the New Zealand Court called in [431 the "original common law substantive jurisdiction" to grant bail in any case, criminal or civil. It is to be noted that the applicant in Zaoui was granted bail by the Supreme Court notwithstanding an allegation by the government that he was a security risk.

[10] We have not been shown that the respondent presents any risk to Kiribati or its people if granted bail until the hearing which we have ordered to take place on 19 August 2022. He is hereby granted bail, and his release from detention is ordered, on condition that he resides at his usual residence in South Tarawa; does not go to the courthouse at Betio before 19 August 2022 and surrenders himself at the courthouse at Betio at or before 10.00am on 19 August

2022.

[11] Costs on this application are reserved.

Blanchard JA

Hansen JA

Heath JA