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Immigration (Amendment) Act 1998

Commencement: 24 August 1998

REPUBLIC OF VANUATU

IMMIGRATION (AMENDMENT) ACT
NO. 13 OF 1998

Arrangement of sections

1. Amendment to section 1
2. Amendment to section 5 - visas and permits
3. New sections
4. Amendment to section 13 - permits to enter and reside
5. Amendment to section 17 - power to remove persons from Vanuatu
6. Insert new section 20A
7. Section 21 - appeals
8. Insert Schedule 2
9. Commencement

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REPUBLIC OF VANUATU

IMMIGRATION (AMENDMENT) ACT
NO. 13 OF 1998

Assent: 16/07/98
Commencement: 24/08/98

An Act to amend the Immigration Act [CAP. 66].

BE IT ENACTED by the President and Parliament as follows:

AMENDMENT TO SECTION 1

1. Insert the following definitions, so that- all definitions are in alphabetical order:
   

"application fee" means the fee payable under section 9D;

"approval certificate" means an approval certificate issued by the Foreign Investment Board;

"dependent", in relation to a person, means any of the following:

(a) a member of the person's family;

(b) a child of the person who is over 18 but who is totally dependent on the person;

"Foreign Investment Board" means the Board established by the Foreign Investment Act 1998;

"foreign investor" has the same meaning as in the Foreign Investment Act 1998;

"investment proposal" has the same meaning as in the Foreign Investment Act 1998;

"residence permit" means a permit that entitles the holder to enter and reside in Vanuatu for the period stated in the permit;

"removal order" means an order under section 17;

"serious offence" means a criminal offence, other than a traffic-related offence that does not cause bodily injury to a person.

AMENDMENT TO SECTION 5 - VISAS AND PERMITS

2. (1) Omit from subsection (2) the words "to enter Vanuatu from outside and shall be in possession of a valid permit to enter prior to entry", substitute "for a residence permit".
   

(2) Omit subsection (3).

NEW SECTIONS

3. After section 9, insert the following sections:

"ENTITLEMENT TO RESIDENCE PERMITS

9A. (1) A foreign investor who has received an approval certificate from the Foreign Investment Board for an investment proposal is entitled to be issued with the residence permits specified in the certificate.

(2) If a foreign investor:

(a) produces an approval certificate to the Principal Immigration Officer; and

(b) gives the Principal Immigration Officer:

(i) a statutory declaration, in the form in Schedule 2, signed by each person for whom a residence permit is sought; and

(ii) a completed application form for each person for whom a residence permit is sought; and

(c) pays the application fee and any bond required under section 6;

the Principal Immigration Officer must issue to the investor the number of residence permits specified in the certificate, for the period specified in the certificate.

ISSUE OF RESIDENCE PERMITS SPECIFIED IN APPROVAL CERTIFICATE

9B. (1) The Principal Immigration Officer must issue the residence permits within 5 working days after the foreign investor complies with subsection 9A(2).

(2) Each residence pen-nit remains in force for the period stated in the permit. This must be the same as the period stated in the approval certificate.

REPLACEMENT RESIDENCE PERMIT

9C. (1) If during the period of a residence permit issued under section 9A (the "original permit") the person named in the permit leaves Vanuatu:

(a) the foreign investor may apply to the Principal Immigration Officer for a replacement residence permit; and

(b) if the Principal Immigration Officer receives:

(i) a statutory declaration in the form in Schedule 2 by the person named in the application; and

(ii) payment of than application fee and any bond required under section 6;

the Principal Immigration Officer must issue a residence permit (a "replacement permit") for the person named in the application.

(2) A replacement permit:

(a) is in force for the remainder of the period of the original permit; and

(b) is issued subject to the same conditions to which the original residence permit was subject.

DEFENDANTS

9D. If the Principal Immigration Officer issues a residence permit to a person under section 9A or 9C:

(a) the dependents of the person are entitled to a residence permit; and

(b) if a dependent of the person;

(i) applies for a residence permit; and

(ii) being over the age of 18, gives the Principal Immigration Officer a statutory declaration in the form in Schedule 2; and

(iii) pays the application fee and any bond payable under section 6;

the Principal Immigration Officer must issue the permit.

REFUSAL OF RESIDENCE PERMITS

9E. The Principal Immigration Officer may refuse to issue a residence permit under section 9A, 9C or 9D if he or she has, during the previous 5 years:

(a) refused to issue a residence permit to the applicant or a dependent of the applicant; or

(b) cancelled a residence permit issued to the applicant or a dependent of the applicant.

SERIOUS OFFENCES

9F. (1) If -

(a) a person has been convicted of a serious offence within the last 10 years; and

(b) the person discloses the offence (the "disclosed offence") in the declaration made under paragraph 9B(2)(b), 9C(l)(b) or 9D(b); and

(c) a residence permit is issued to the person under section 9A, 9C or 9D,

the disclosed offence cannot be used as grounds for:

(d) cancelling the residence permit, or

(e) making a removal order against the person.

(2) However, if.-

(a) the person has been convicted of a serious offence during the last 10 years; and

(b) the person does not disclose the serious offence in the declaration; and

(c) a residence permit is issued to the person under section 9A, 9C, or 9D;

the offence can be used as grounds for:

(d) cancelling the residence permit; or

(e) making a removal order against the person.".

AMENDMENT TO SECTION 13 - PERMITS TO ENTER AND RESIDE

4. (1) Insert in subsection (3), after the words "this Act" the words "but subject to subsection (4),".
   

(2) Insert after subsection (1) the following subsection:

"(1A) Application for the renewal of a residence permit must be made at least 30 days before the permit is due to expire.".

(3) Add at the end the following subsections:

"(4) Before cancelling a permit, the Principal Immigration Officer must give the person notice in writing:

(a) that the Principal Immigration Officer proposes to cancel the permit; and

(b) the reasons why the Principal Immigration Officer proposes to cancel the permit; and

(c) that the person may, within one month from the date of the notice, make written representations to the Principal Immigration Officer stating why the permit should not be cancelled.

(5) The Principal Immigration Officer must consider the representations before cancelling the permit.

(6) If the Principal Immigration Officer cancels a permit. the Principal Immigration Officer must:

(a) record the decision in writing and the reasons for cancelling the permit; and

(b) give a copy of the decision and the reasons:

(i) to the person; and

(ii) if the person was issued with a permit under section 9A, 9C or 9D - to the Foreign Investment Board;

within 48 hours of making the decision.".

AMENDMENT TO SECTION 17 - POWER TO REMOVE PERSONS FROM VANUATU

5. (1) Omit from subsection (1) the words "The Minister need not give any reason for his order, which shall not be challenged in any court in any proceedings whatever.".
   

(2) Insert after subsection (1) the following subsections:

"(1A) Before making an order under subsection (1), the Minister must give the person notice in writing:

(a) that the Minister proposes to make the order; and

(b) the reasons why the Minister proposes to make the order; and

(c) that the person may, within 14 days- from the date of the notice, make written representations to the Minister stating why the person should not be removed from Vanuatu.

(1B) The Minister must consider the representations before making an order under subsection (1).

(1C) If the Minister makes an order under subsection (1), the Minister must:

(a) record the decision in writing and the reasons for making the order; and

(b) give a copy of the order and the reasons:

(i) to the person; and

(ii) if the person was issued with a permit under section 9A, 9C or 9D - to the Foreign Investment Board;

within 48 hours of making the order.".

INSERT NEW SECTION 20A

6. After section 20, insert the following section:

"REASONS FOR DECISION

20A. If the Principal Immigration Officer refuses an application for a permit, the Principal Immigration Officer must give a copy of the decision, and the reasons for the decision, to the applicant within 7 days of making the decision.".

SECTION 21 - APPEALS

7. (1) After subsection (1), insert:

"(1A) The Minister must decide the appeal within 30 days.

(1B) The Minister must:

(a) record the decision, and the reasons for the decision, in writing; and

(b) give a copy of the decision and the reasons to the person within 7 days of making the decision.".

(2) Insert in subsection (2), after "the Minister", the words "or to the Supreme Court".

(3) Insert after subsection (2) the following subsection:

"(2A) The Principal Immigration Officer must grant an interim permit to a person whose residence permit was issued under section 9A or 9C.".

(4) Add at the end:

"(4) If on appeal under section 21 the Minister refuses to issue a permit under this Act, the applicant may appeal to the Supreme Court against the refusal.".

(5) A person against whom a removal order has been made may, within 14 days of receiving the order, appeal to the Supreme Court against the order.

(6) The Supreme Court has jurisdiction to hear and determine the matter.

(7) On an appeal against the Minister's refusal to issue a permit, the Supreme Court may:

(a) confirm the Minister's decision, or order that the Principal Immigration Officer issue the permit specified in the order for the period specified in the order and

(b) make such other order as the court thinks fit.

(8) On an appeal against a removal order, the Court may:

(a) confirm or revoke the Minister's decision; and

(b) make such other order as the court thinks fit.

NEW SCHEDULE 2

8. After Schedule 1, add the following Schedule:

"SCHEDULE 2

Sections 9A(2)(b), 9c(1)(b) and 9D(b)

STATUTORY DECLARATION

I, [name in full] of [address], do solemnly and sincerely declare as follows:

1. I am the applicant named in the attached immigration application

2. I have not been convicted of a criminal offence in any country, other than a traffic offence that did not cause bodily harm to a person, during the past 10 years.
   

OR

3. I have been convicted of the following criminal offences during the past 10 years:
   

[list the following information about each offence, other than traffic offences

that did not cause bodily harm to a person:

description of criminal offence

date of conviction city

and country where convicted

penalty imposed].

4. I authorise the Principal Immigration Officer to carry out any inquiries, in Vanuatu or elsewhere, that he or she considers necessary to verify this declaration. I understand that if those inquiries disclose serious offences other than those listed above, the Principal Immigration Officer may take action against me under section 9F of the Immigration Act.
   

AND I MAKE this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act.

DECLARED at [place where declaration signed]
this [date declaration signed] [signature of person making

declaration]

Before me:

[Signature of person before whom declaration made]
[Description of person]"

[NOTE: Under section 9F of the Immigration Act, if the Principal Immigration Officer's inquiries disclose serious offences as defined in that Act that the applicant has not disclosed, a removal order may be made against the person. However, if a residence pen-nit is issued to a person who has disclosed serious offences, those offences cannot be used as grounds for making a removal order.]

COMMENCEMENT

9. This Act commences on the same day the Foreign Investment Act 1998 commences.
   

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