‘Invalid and quashed’: Australian-born judge wins deportation battle

Moves by the Kiribati government to deport an Australian citizen and senior Kiribati judge who is married to the country’s opposition leader have been declared invalid and quashed by the Pacific Island nation’s Court of Appeal, as tensions between the executive and the judiciary continue to boil over.

Lawyers for Australian David Lambourne, a former solicitor-general of Kiribati who was appointed to its High Court in 2018, successfully applied to the country’s Court of Appeal earlier this month for an urgent order releasing him from immigration detention pending a further court hearing.

Kiribati High Court Justice David Lambourne, right, pictured in 2019 with Sir John Baptist Muri, a former chief justice of the High Court of Kiribati. The Kiribati government has been seeking to deport Lambourne.Credit:Pacific Islands Legal Information Institute

The parties returned to court last Friday and Sydney barristers Perry Herzfeld, SC, and Daniel Reynolds, acting for Lambourne, fought to overturn deportation notices issued to him by the government.

In a decision on Friday, the Kiribati Court of Appeal – retired New Zealand justices Peter Blanchard, Rodney Hansen and Paul Heath – said a deportation liability notice and two deportation orders issued to Lambourne on August 11 were “hereby declared invalid and quashed”.

It also declared invalid an attempt by Kiribati President Taneti Maamau this month to “recall, vacate and nullify” Lambourne’s lifetime judicial appointment and to reappoint him for a term that expired on June 30 last year.

The Court of Appeal said “no attempt has been made by the Attorney-General to explain how Mr Lambourne could rationally be considered a security risk”, as claimed by the Kiribati government in seeking to deport him. It said Kiribati’s Deputy Solicitor-General Monoo Mweretaka“seemed at something of a loss [in court] to justify the order”.

US lawyer Ravi Batra appeared for the Kiribati government at last week’s hearing. In a theatrical performance that included thumping his fist on the table at one stage, the New York-based Batra said, “A judge is as close as we get to a messenger of God on Earth. David Lambourne is nothing of the kind.

“This court ought to give maximum deference, as our Supreme Court does, when our President sends a letter saying, ‘Get out of this, it’s a matter of national security.’ You don’t get to know [the reasons why]. It’s called separation of powers.”

The court said Batra “invoked a doctrine, apparently of American origin but unknown in jurisdictions of which we are familiar, under which a Court must give ‘maximum deference’ to the executive’s decision” but said “we do not accept any such doctrine forms part of the law of Kiribati”.

Lambourne is a long-time resident of Kiribati and lives with his wife, Tessie Lambourne, in the nation’s capital, South Tarawa.

Tessie Lambourne, a former ambassador to Taiwan, recently accused the government of “bending over backwards to accommodate the interests of China” after it withdrew Kiribati from the Pacific Islands Forum, the key diplomatic body in the Pacific.

“My assessment is that maybe China wants to isolate us from the rest of the forum,” she told SBS in July.

The government had sought to stop Lambourne from re-entering the country after a trip to Australia but he returned this month on a visitor visa that did not allow him to work as a judge.

Batra alleged Lambourne had always been appointed to the High Court for a fixed three-year term that expired last year, rather than for life. But in a decision in November last year, the country’s Chief Justice, William Hastings, confirmed in the High Court that Lambourne had been appointed for life. The Court of Appeal confirmed Chief Justice Hastings’ judgment.

Hastings, also a New Zealand judge, has since been suspended and there is no functioning High Court in Kiribati at present. The attorney-general also suspended Lambourne as a judge in May, citing unspecified misconduct grounds.

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