Monday, November 09, 2009

Illegal CJ Gates Behind Expulsion

Merritt, Legal Affairs editor

The Australian

November 09, 2009

FIJI Prime Minister Frank Bainimarama expelled Australia’s High Commissioner last week after receiving a memorandum from the country’s chief justice containing fundamental errors about Australia’s travel bans on Fiji’s judges.

The memorandum, written by Anthony Gates, provides an outline of how the bans are working that appears at odds with first-hand information the judge received just five days earlier.

Chief Justice Gates told Commodore Bainimarama that Australia had adopted a “shabby policy” under which it was attempting to control which foreign judges were permitted to enter Fiji to join the judiciary.

“These policies are a quite indefensible interference in our judiciary,” wrote Chief Justice Gates, who holds dual Australian and British citizenship.

Australia’s Department of Foreign Affairs has said that, while Australia imposes bans on serving Fiji judges, the bans do not apply until foreign judges take their oath of office in Fiji.

Chief Justice Gates’s memo to Commodore Bainimarama also criticises a letter from Australia’s acting High Commissioner, Sarah Roberts, who had said the bans would be applied on a case-by-case basis. “Therein lies their plea of guilty to the charge of interference, for they will choose which judge to let in and which to refuse,” the Chief Justice wrote.

Within hours of receiving the Gates memo, which is dated November 3, Commodore Bainimarama held a news conference and announced that he was expelling top diplomats from Australia and New Zealand. The disclosure of the Gates memo is the latest indication of his key role in the deterioration in diplomatic relations with Australia.

Chief Justice Gates has confirmed that he provided a briefing on the travel bans to Commodore Bainimarama and Attorney-General Aiyaz Sayed-Khaiyum and had a meeting with Commodore Bainimarama last Tuesday, the day the expulsions occurred.

The issue at the heart of the Gates memo is an attempt by seven Sri Lankan judges and magistrates to obtain transit visas so they could fly through Australia to take up their judicial posts in Fiji. Commodore Bainimarama referred to this incident, and another involving New Zealand, when explaining his decision to expel the envoys.

What the Prime Minister did not reveal was that his government had threatened to take action against Australia over the travel bans well before the incident involving the seven Sri Lankans occurred.

Fiji served an ultimatum on Australia on October 23 threatening “further precipitate action” unless High Commissioner James Batley provided “unequivocal confirmation” by October 27 that the travel bans on Fiji’s judges had been reversed.
New Zealand received an almost identical ultimatum the same day.

Neither ultimatum, both of which have been obtained by The Australian, mentioned the Sri Lankan judges.

On the day Fiji’s foreign affairs secretary Solo Mara wrote the ultimatum to Australia, visa applications from the seven Sri Lankans had been with the high commission in Colombo for just two days.

This has been outlined by one of the Sri Lankans, K. Priyantha Fernando, in an email sent on October 30 to Sri Lanka’s honorary consul in Fiji, Ajith Kodagoda.

A copy was sent to the personal email account of Chief Justice Gates on the same day.

Justice Fernando’s account of his contact with the Australian high commission appears to be at odds with one aspect of the Gates memorandum.

Chief Justice Gates wrote that one of the Sri Lankans had taped a telephone conversation with an Australian visa officer in Colombo “in which the officer clearly said the visa was declined”.

According to Australia’s Department of Foreign Affairs, all seven Sri Lankans withdrew their applications before learning they had, in fact, been approved.

None had been rejected.

Justice Fernando’s email appears to be in accord with Australia’s version that the applications were withdrawn and not rejected.

“As we had to confirm the airline bookings and since we had not received the transit visa up to 29th October, 2009, we withdrew the applications,” the email says.

The alleged illicit recording that Chief Justice Gates referred to in his memorandum has been supplied to The Australian by Radio Fiji. It contains no reference to a visa application being rejected.

According to the department, the high commission in Sri Lanka had not recorded the conversations with the seven judges, but the department had obtained a copy of the tape on which there was no mention of a current visa application being rejected.

The recording makes it clear the conversation took place after the judge concerned had withdrawn an application for an Australian transit visa and had decided instead to fly to Fiji via Korea.

The recording does not contain the judge’s side of the conversation but does include an extensive explanation of the travel bans Australia applies to Fiji’s serving judges.

The fact this conversation took place after the visa application had been withdrawn is apparent from the way the consular officer responded to a remark from the judge.

“OK then,” the officer said. “Oh, OK, you are going by Korea as well are you? OK, no problems. Well be that as it may, thank you very much for your time.”

There is no suggestion it was Justice Fernando who made the alleged illicit recording. However, his email confirms the high commission told the judges about the travel bans on Fiji judges only after they had withdrawn their visa applications.

“This fact was never informed to us by the Australian high commission at the time I withdrew the application and received the passport or before,” he wrote.

“I am informed that some other judicial officers who applied for transit visa also received the same call after the withdrawal of the application stating that the officers will not be given visa to Australia during their tenure of office as judicial officers of Fiji,” Justice Fernando wrote.

Although the Gates memorandum says a visa officer “clearly said” on the tape that a judge’s application for a visa had been declined, the department said this was at odds with the structure of the high commission.

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