Gil Jang Yoon v The Republic of Vanuatu
JUDGMENT OF THE COURT
Introduction
1. This is an appeal from a decision of the Supreme Court of 11 November 2025 dismissing the claims of Gil Yang Yoon and Choi Eun Cheol (the Appellants) against the Government of the Republic of Vanuatu (the Respondent). The appeal relates to a long sequence of litigation concerning the deportation of the Appellants to Korea in 2022. The deportation orders have since been revoked, and the Appellants are free to return to Vanuatu.
2. There are three sets of proceedings that were before the Court when the appealed decision was delivered. These were the Constitutional Case No. 1893 of 2022, the Civil Case No. 11 of 2022, and the Judicial Review Case No. 269 of 2023. They all relate to the decision to deport the Appellants.
History of the deportation and consequent Constitutional Claim
3. From at least 2020, the Appellants were listed on the Interpol Red notice as “Wanted” by the South Korean National Police. The purpose of an Interpol Red notice is to inform a requesting country that a person is wanted for offences in the relevant country. The Vanuatu Transactional Crime Unit informed Interpol in Seoul that the Appellants were residing in Vanuatu.
4. Through January of 2022, arrest and execution warrants were sent by Interpol South Korea to the Vanuatu authorities. The Appellants were listed as “Wanted” in South Korea. There was a formal request for their removal to South Korea made on 13 February 2022.
5. On 21 March 2022, the Minister of Internal Affairs made Statutory Order No. 186 of 2022, removing Mr Gil Jang Yoon and Mr Choi Eun Cheol from Vanuatu as non-citizens, under s 53A(1)(b) of the Immigration Act No. 17 of 2010.
6. On 17 April 2022, Mr Choi and Mr Gil were arrested in Vanuatu without notice, detained and deported to South Korea.
7. On 22 July 2022, Constitutional Claim No. 1893 of 2022 was filed by the two Appellants (the Constitutional Claim). There was a claim that the Appellants’ rights under Article 5 of the Constitution had been infringed, and a claim that s 53A of the Immigration Act, relied on by the Minister of Internal Affairs to make the statutory order to deport, conflicted with the Constitution. There was also a claim based on Article 49(1) of the Constitution. Reference was made to criminal proceedings that the Appellants were facing in Vanuatu. The trial was scheduled to commence in Vanuatu on 19 April 2022. The deportation prevented the trial from proceeding in Vanuatu, but the criminal proceeding remained on foot; there remained the prospect of a trial. There were allegations of loss and damage to the Appellants as a consequence of the deportation actions. Compensation was sought.
8. The relief sought in the claim began with a declaration that s 53A of the Immigration Act, which refers to deportation without notice, conflicted with the Constitution.
9. An order was sought that the deportation order Statutory Order No. 186 of 2022 be struck out and declared void ab initio.
10. The claim also sought orders that the Criminal Case (No. 598 of 2020) be struck out, as the Appellants were defendants in the case, and the case could not be heard in a reasonable time.
Events after filing the claim
11. The Statutory Order No. 186 of 2022 was gazetted on 26 October 2022. This was over seven months after the order was signed.
12. On 11 November 2022, the Civil Claim No. 11 of 2022 was filed by the two Appellants. The relief sought was that the Statutory Order No. 186 of 2022 be set aside.
13. On 3 February 2023, the decision on preliminary questions of law (the First Decision) was released by the Supreme Court of Vanuatu. The agreed issues for determination were:
a. Whether the Removal Order made pursuant to s 53A of the Immigration Act was subject to ss 54, 55(3), and 59 of the Immigration Act?
b. If the answer to the first question was yes, was the Removal Order prevented from coming into effect until after:
i. It has been published in the Government Gazette and thereafter the period specified in s 55(3) of the Immigration Act has lapsed, or
ii. The person affected by the Removal Order has been served with it and the period specified in s 55(3) has lapsed.
c. If the answer to the first question was no, is s 53A unconstitutional?
The First Decision (now not challenged)
14. In the First Decision, it was found that:
a. A Removal Order made under s 53A of the Immigration Act was subject to ss 54, 55(3) and 59 of the Immigration Act.
b. The removal order did not come into effect until after the period allowed for review has expired or until the review has been finally determined.
c. The Court of Appeal in Ayamiseba v Attorney General [2006] VUCA 21 established that there is a right to seek a review of an order in the Supreme Court. By making the Removal Order under s 53A
without notice, the Executive did not comply with ss 55 and 59, and thus the Executive’s actions were unlawful.
d. Section 53A itself is not unconstitutional, although in terms of the agreed issues, that question did not need to be answered.
15. On 22 March 2023, after the First Decision, the Judicial Review Claim No. 269 of 2023 was filed by the two Appellants. The relief sought again was that the Statutory Order No. 186 of 2022 should be declared invalid and of no legal effect.
16. By 28 August 2023, all three cases were consolidated, and there had been an application to amend the Constitutional Claim to plead various additional matters. A preliminary issue was raised as to whether the deportations could be valid given a failure to gazette them.
The Second Decision (Extension of time to appeal sought)
17. There was an application filed on 28 August 2022 to amend the Constitutional application. There was also a preliminary question of law raised relating to the late gazetting of the Removal Order which meant that it was not gazetted when the deportations took place.
18. These two issues were determined on the papers on 28 August 2023 (the Second Decision) [1] by the primary Judge. He dismissed the application to amend the Constitutional Claim No. 1893 of 2022. This was on the grounds that the amendment sought to raise matters that had already been determined, which is whether s 53A of the Immigration Act was unconstitutional.
19. The claim that the failure to gazette rendered the Deportation Order invalid was answered “in the negative”. It was found that the failure to gazette the order prior to implementation did not affect the validity or legality of the order or subsequent actions. The effect of gazettal was only to give notice of the existence of the order.
Events after the Second Decision
20. Importantly, on 4 September 2023, an application was made to amend the Judicial Review claim to plead, amongst other things, a failure to give notice to the Appellants that they were to be deported to South Korea, and a failure by the Minister to consider whether he should or should not give notice to them.
21. On 11 September 2023, an application for leave to appeal the First Decision was filed. It was refused on 20 October 2023. One of the grounds was that it was unnecessary, as the three actions were consolidated, and it was better to get on with the hearing, where new issues had already been pleaded in the judicial review proceedings. This decision has not been appealed and the first decision is unchallenged.
22. On 25 January 2024, the Statutory Order No. 186 of 2022 was revoked by the Minister of Internal Affairs. This revocation was not gazetted.
23. Mr Choi returned to Vanuatu on 21 February 2024. It can be observed that the revocation order must have been recognised by the Republic as valid, despite it not being gazetted.
24. On 9 September 2024 the primary Judge issued a Minute stating that the Court “proposed to dismiss all three claims based on the revocation of the decision which provoked them”, save for the Constitutional claim relating to the Criminal trial which was referred to the judge presiding over that matter. A timetable was set for filing submissions.
The Third Decision
25. The resulting Supreme Court judgment relating to the three consolidated claims was released on 17 November 2025 (the Third Decision). The Court dismissed each and every claim and application made by the Appellants, with no further orders either as to damages or costs.
26. The issues raised and dealt with in this decision by the primary Judge were:
a. The Appellants raised in the Constitutional Claim that their right to a speedy and fair criminal trial was infringed by the deportation. This was the remaining issue to be determined in the claim. The primary Judge found that this matter should be dealt with by the criminal trial judge and no other judge sitting in the Supreme Court.
b. Given the Statutory Order No. 186 of 2022, the subject of the constitutional proceedings was revoked by the Minister of Internal Affairs, the three proceedings should be ended without a trial, as there was nothing to appeal, review, or consider. The Appellants ultimately benefited from the revocation and should not further benefit in these proceedings with orders for costs or damages.
c. The revocation of the original order for deportation was irregular and improperly done. The Attorney General’s chambers did not draft the order, as would be expected if legislative provisions were being followed. The Minister had accepted that the failure by the Executive to gazette the revocation may render the Republic liable to pay damages. However, while time had been allowed for counsel to negotiate the question, no agreement on damages had been reached, in part due to counsel for the Appellants being reluctant to begin any assessment until both Appellants returned to Vanuatu.
d. It was noted that Mr Gil remained unwilling to return to Vanuatu, unless he received orders from the Court that guaranteed he would be granted the residence permit he required. The Court found that such an order was beyond its power.
e. As there was no longer any decision to appeal or review and the Constitutional position was now clear, all claims were dismissed with no further orders as to damages or costs.
27. The Appellants now appeal the Third Decision and seek an extension of time to appeal the Second Decision.
The Notice of Appeal
28. The Notice of Appeal is lengthy. Rather than try to summarise it, the grounds are quoted in full below:
(1) In law in dismissing the Appellants’ claims in the 3 proceedings without a trial or on any basis provided for in the Civil Procedure Rules for ending a proceeding early as provided for in Part 9 of the Civil Procedure Rules or the Court’s inherent jurisdiction.
(2) In law (at paragraphs 6 to 9 of the Judgement) in dismissing the whole of the Constitutional Application but separating out to be heard by the trial judge in the Criminal proceeding, the part of the Constitutional Application in which a dismissal of that Criminal proceeding against the Appellants was being sought.
(3) In law in holding that a Constitutional Application seeking a dismissal of a criminal proceeding had to be heard by trial judge (see paragraph 7 of the Judgment).
(4) In law in dismissing the Judicial Review Claim on the basis that no remedy was available because of the revocation of statutory order (statutory order No.186 of 2022) in respect of which a quashing order was sought.
(5) In law in holding that the statutory Order (Statutory Order No.186 of 2022) had been revoked.
(6) In law in holding that the removal order dated 21 March 2022 signed by the Minister of Immigration and Prime Minister had legal effect although it had not been published in the Government Gazette (see Decision dated 28/08/2023 at paragraphs 3 to 10).
(7) In law and in fact in failing to consider whether the circumstances the power to make. a revocation order under section 53A of the Immigration Act were, in fact, present for each of the Claimants.
(8) In law and in fact in failing to take into account the bail orders that had issued in the Criminal Proceedings prohibiting each of the Appellants from leaving Vanuatu until further Order of the Supreme Court in the Criminal proceeding.
(9) In law in dismissing the Appeal (Civil Case No.11 of 2022) on the basis that there is nothing to decide because the statutory order (No.186 of 2022) had been revoked (see paragraph 11).
(10) In law in taking into account the signed but not gazetted Minister's Order revoking statutory Order No.186 of 2022 in deciding to dismiss the Appellants Claims and Appeal and to award no costs and zero compensation in favour of the Appellants.
(11) In law in holding (at paragraph 9) that the applicants did not show any unconstitutionality.
(12) In law in holding (at paragraph 6) that because the Court had determined that section 53A of the Immigration Act was not constitutionally invalid, there was nothing else to consider in the Constitutional Petition.
(13) In law in dismissing the claims in the Constitutional Petition, including especially claims for compensation under Article 6 breaches of the Appellants' rights pursuant to Articles 5(1)(b), 5(1)(c), 5(1)(i), 5(1)(d) and 5(2)(a) and pursuant Article 53(1) of the Constitution without giving any reasons.
(14) In law in refusing the Appellants application (filed on 07/02/2023) to amend their Constitutional Claim on the basis that the proposed amended statement of case had maintained the challenge to the Constitutional validity of section 53A although His Lordship had already ruled that it was Constitutionally valid (see decision dated 28/08/2023 paragraph 2).
(15) In law in failing to give reasons for disallowing all amendments sought to the Constitutional Application apart from the one amendment that he ruled was objectionable.
AND the Appellants seek the following Orders:
1. That the Judgment be set aside and the three proceedings be remitted to a different Judge for progressing to trial.
2. That the Claimants have leave to amend their statement of Case in the Constitutional Case in the terms applied for in their application filed on 07/02/2023.
3. That the Respondents pay the Appellants' costs of and incidental to the Appeal and in relation to making submissions as to how the 3 proceedings should be disposed of in the Court below.
Observations about the three claims
29. The three sets of proceedings that were filed and dismissed in the decision under appeal were all filed prior to the deportation orders being revoked.
30. The constitutional application was filed on 22 July 2022. It included relief sought for a declaration that section 53(A) of the Immigration Act conflicts with the Constitution of Vanuatu (the Constitution) and that the deportation orders made should be struck out and declared void ab initio. Relief was sought that the Appellants should not be treated as prohibited immigrants. Orders were sought that the criminal case be struck out. Compensation under Article 6 for the infringements of Article 5 involved in the seizure of the Appellants without notice was sought.
31. It can be observed that the argument that s 53(A) of the Immigration Act conflicts with the Constitution was determined in the First Decision, where it was held that s 53(A) in itself is not unconstitutional. There has been no challenge to that decision, and we can understand why.
32. It can also be observed that the deportation order Statutory Order No. 186 of 2022 made on 21 March 2022 has been revoked, and there is therefore nothing in relation to the order itself to be struck out or declared void. Given that the Appellants are no longer prohibited immigrants, there is not necessarily any need for an order that they are not prohibited immigrants. We record that, without the issue being fully pleaded and argued before us, we are not prepared to make any orders as to the Appellants’ immigration status.
33. We also note that the relevant Criminal Case No. 598 of 2020 is not before this court.
34. The second civil claim, dated 11 November 2022, sought the setting aside of the Statutory Order No. 186 for deportation. It is impossible to see any specific relief being sought, save for an order of deportation to be set aside. That is in respect of the order that has been revoked since 25 January 2024. There is no point in that proceeding as presently pleaded being continued, and this proceeding may well be unnecessary if the Constitutional Claim is amended.
35. The third claim for judicial review sought the same relief as the civil claim, for a declaration that the order of deportation was invalid and of no legal effect. It was said that this prevented the Appellants from coming back and affected the Appellants’ reputations. It is impossible to see any specific relief being sought save for the declaration. That is in respect of the same order that has been revoked since 25 January 2024. There is no point in that proceeding as presently pleaded being continued, but an amendment could be sought.
36. It is the Constitutional Claim which has the claim in it for compensation for the arrest of the Appellants, said to be unlawful. It can be observed that the amendments sought to the judicial review claim concerning no consideration by the Minister about the giving of notice (but where, as presently pleaded, no damages are sought), might be better made in the Constitutional Claim.
The decision appealed – the Third Decision
37. As we have recorded, the Supreme Court judgment found that other than a question of an infringement of the right to a speedy and fair criminal trial, which the Appellants then faced in Vanuatu, there was nothing left in the Constitutional Petition to be determined. [2] That was because the First Decision, which has not been appealed, related to the Constitutional Petition, and dismissed its challenge to the lawfulness of s 53A of the Immigration Act.
38. The Judge asked in the Third Decision, “Should an already revoked decision be the subject of an appeal process? Should a judicial review of such a decision proceed, given the limited nature of the remedy available?”[3] The Judge went on to ask whether the findings that have already been made and published concerning the constitutionality of the applicable legislation could be challenged by any further proceedings and anything more achieved. As we set out later in this decision, we think that this statement overlooked the other relief sought in the Constitutional Petition.
39. The Judge noted that the Minister had confirmed his instructions that the revocation should remain in force, “which is a matter for him”[4]. He went on to accept that, without the revocation, the Republic may have been liable to pay damages, but that was not how the case has been pleaded. The proceedings that are the subject of this challenge were all based on events prior to the revocation and do not relate to the revocation as such. Insofar as the Judge was saying that the challenge to s 53A of the Immigration Act was settled by his First Decision, which was not appealed, we agree.
40. The Judge pointed out that time had been allowed for counsel to negotiate the question of damages, but that time had not been spent productively, and no agreement on damages had been reached. He recorded that the Appellants’ lawyers were reluctant to participate in any process until both clients had returned to Vanuatu. Apparently, one of them remains unwilling to return without orders from this Court guaranteeing that he will be granted the resident permit he requires.
41. The First Decision, which challenged the constitutionality of s 53(A) of the Immigration Act has not been in the end appealed, and that has rendered nugatory the attacks on the legality of s 53(A) of the Immigration Act that were an important part of the Constitutional Claim.
42. Further, it was not argued before us that the 2024 revocation orders were invalid, save for a question mark over the way they were made and their non-gazetting. But it was not argued that the revocations were a nullity, and indeed it would not have been in the interests of the Appellants to do so.
43. We do not accept the reasoning that appears to be implicit in the appealed Third Decision, that the finding in the First Decision as to the legality of s 53(A), which gave the Minister the power to issue a deportation order without notice, meant that there could be no challenge to the deportation order, or the consequent actions enforcing that deportation order. This is because even if s 53(A) is valid, orders under it can be susceptible to judicial review.
44. Nor do we accept the finding in the Third Decision that the revocation orders rendered the Constitutional Claim with its claim based on Article 5 breaches (as well as the invalidity of s 53(A)) moot. As we have set out, that proceeding contained other material claims, for instance, those relating to the breach of Article 5 of the Constitution, not affected by the failure of the challenge to the validity of s 53(A).
45. Indeed, all three proceedings contained assertions that did not depend on s 53(A) being unconstitutional or the orders being revoked some years later. As we have set out, the Constitutional Claim was not just based on s 53(A). It was also based on breaches of the Appellants’ rights to liberty, security of the person and freedom of movement guaranteed by Articles 5(1)(b), (c), (d) and 5(2)(a) of the Constitution. The particulars given relate to the without notice and sudden removal capture by the Vanuatu Police (the Police) and the retention of the Appellants in custody, and then removal by air to South Korea via Australia. Loss and damage are pleaded. Relief is sought as compensation for the infringements of the Appellants’ constitutional rights, including financial loss in relation to their business venture, and damages for distress and humiliation.
46. The breach of Article 5 claims relying on Article 6 of the Constitutional Claim are unaffected by the Immigration Act finding or the revocation orders. They remain extant. This means that it was an error in the Third Decision to treat those parts of the Claim as at an end or moot. They still needed to be determined.
47. It also means that the Judge was in error in the Third Decision to reject the application to amend the Constitutional Claim on the basis that the whole claim raised matters that had already been determined. It is true that part of the claim had been effectively determined, but not all of it. The legality of the Minister’s decision to order immediate action without notice by the Police and whether the Minister had turned his mind to the question of notice, and the actions of the Police in what may have been breaches of Article 5 rights, remained to be determined.
48. It is true that s 53A of the Immigration Act gives the Minister the power to, by order, remove from Vanuatu any person who is wanted in a foreign country for any criminal offence he or she committed in that foreign country, and provided as s 53A(2) that the Minister does not need to give any notice for the removal of such a person. However, s 54 provides for a form of order and s 55 provides for a removal procedure which includes holding the prospective deportee for a period to give that person time to seek a review of the deportation order.
49. It was held in Ayamiseba that, in relation to the equivalent provision in the predecessor act, it was: [5]
…quite wrong to say that the provision explicitly removes rights to prior notice to which a non-citizen might otherwise be entitled. It merely enables or empowers a Minister to decide whether he needs to give notice.
50. The Court went on to hold that there was no evidence that the Minister turned his mind to whether he needed to give notice for the removal of Mr Ayamiseba or that any person who advised the Minister had considered the second issue either. That is an issue that could be argued in these proceedings, although it would involve some amendment of pleadings, along the lines of the amendment sought (but it seems not determined) in the Judicial Review proceedings.
51. The revocation of the deportation orders does not mean that this issue of compensation is moot. The Article 5 claim does not depend on the validity of the deportation orders, but rather on what actions were carried out in relation to the Appellants by the Ministry and the Police after they were made. It can proceed with the focus being the 2022 actions to decide to proceed without notice, and the actions during the execution of the orders.
The Criminal Trial
52. The criminal trial in Vanuatu where the Appellants were defendants was to start on the day after the Appellants’ arrest and deportation. Their arrests by the Police and deportations prevented that trial from proceeding. It is still pending despite the return of one of the Appellants, Mr Choi. The other, Mr Gil, remains overseas, and no deportation order has been sought to extract him for trial.
53. The Appellants pursued an argument that the primary Judge erred in determining that part of the Constitutional Claim seeking orders striking out the criminal proceedings. The ground was that there was a failure to give the Appellants a trial in a reasonable time, giving rise to an Article 5 application to stay or quash the trial. It was argued for the Appellants that this issue should be heard in the Constitutional Petition. A dismissal of that criminal proceeding against the Appellants was sought specifically in the Constitutional Claim.
54. The Judge in the appealed Third Decision rejected that argument. We think he was right to do so. Any issues relating to the criminal proceedings would need to be considered in the full knowledge and context of those proceedings. Only the judge involved in the Supreme Court criminal trial would have that context and knowledge. There is nothing to stop the constitutional arguments being raised in the criminal proceedings, and we endorse this part of the primary Judge’s reasoning.
The application for leave to appeal the second decision
55. As we have made clear, we think that on the merits, the primary Judge was right in his second decision to reject the argument that lawfully made orders are not valid until gazetted.
56. The definition of statutory orders in s 12 of the Interpretation Act makes no reference to gazetting being necessary for a valid order. Section 13, which is the section that requires the gazetting of orders, does not state that gazetting is necessary for the validity of the order. The omission is conclusive. If that was the intention, Parliament would have said so.
57. Further, the practicalities make it unlikely that Parliament would have ever had that intention. If it were so, it would render urgent orders that had to be effected immediately impossible to implement. A requirement of gazetting before validity could cause irremediable delay. This cannot have been the intention of Parliament. The purpose of the requirement to gazette order is to give notice of the existence of the order. The validity of the order itself is not dependent on the gazetting. An otherwise valid order comes into effect on the day on which it was made.
58. For this reason, we would refuse leave to appeal this aspect of the Second Decision. It has no prospect of success.
59. The second aspect of the Second Decision for which leave to appeal is sought relating to proposed 2023 amendments is now moot in light of the revocation of the orders. Events have passed it by, and it can be expected that a new application to amend will be made. Accordingly, leave will not be given to appeal that decision. To be clear, that order is without prejudice to the Appellants’ ability to seek amendments to their pleadings following the remission back.
60. For the avoidance of doubt, it is directed that the Appellants have leave to apply to amend their statements of claim in the three actions (although the necessity for three separate claims should be reviewed).
Result
61. The appeal against the Third Decision of 17 November 2025 is allowed.
62. The order in that decision that dismissed the three proceedings is quashed.
63. The proceedings are remitted to the Supreme Court for trial.
64. Any constitutional claims relating to the criminal trial are to be put before the judge seized of the criminal proceedings and determined by that judge.
65. Leave is refused to appeal the aspect of the second decision that relates to the delay in gazetting as it has no chance of success.
66. Leave is refused to appeal that aspect of the second decision that relates to amendment, as the proceedings are remitted back for hearing and leave to amend can be sought afresh.
Costs
67. The Appellants sought costs of VT300,000 to VT500,000. This appeal has generated a good deal of paper, but the Appellants must take some responsibility for the disjointed multiple claims, the multitude of applications, and the amount of paper generated.
68. The Respondents are to pay the Appellants' costs of this appeal in the amount of VT150,000.
DATED at Port Vila this 15th day of May 2026.
BY THE COURT
Hon. Chief Justice, Vincent Lunabek
[1] Yoon and Choi v Republic of Vanuatu Case no 22/1893
[2] Gil Yang Yoon v The Government of the Republic of Vanuatu [2025] VUSC 320 at [9].
[3] At [12].
[4] At [18].
[5] Ayamiseba v Attorney General [2006] VUCA 21.