NACZ v Minister for Immigration & Multicultural & Indigenous Affairs

Solicitor for the Applicant: Mr Newman of Newman & Associates

NACZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA ### DRAFT

NACZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1607 of 2001 MADGWICK J

APRIL 2003

SYDNEY

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal of 17 October 2001 is set aside. 2. The matter will be remitted to the Refugee Review Tribunal to be dealt with in accordance with law. 3. The parties will be further heard as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Introduction 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("RRT") given on 17 October 2001, adverse to the applicant. 2 The applicant (principal applicant, perhaps - it is irrelevant to the practical outcome) is the wife and mother in a family of ethnic Indian Fijians on whose behalf, as well as her own, she sought refugee status. They arrived in Australia from Fiji on 17 December 2000.

The applicant's case 3 In her initial application for a protection visa, in answer to the question why she had left Fiji, she said "I never wanted to leave my country but I had to leave my country because of the current crisis in Fiji. I being a woman and of Indian group was being [harassed] a number of times. I was also beaten by the [ethnic] Fijians when I escaped [my] attempted rape. The Fijians have no mercy upon Indian woman. They have given me a lot of pain and they nearly killed me and my family. In order to save myself and my [family's] life we fled the country." 4 The written questions and answers continued: "What do you fear may happen to you if you go back to that country? I fear that surely we will be killed. They have threatened me and my family. Have damaged our property and have also looted our belongings and attempted to rape me. Thank God I was lucky enough not to be one of their victims of rape. I am very much afraid that I will be raped. Who do you think may harm/mistreat you if you go back? The followers of the Taukei movement group who are [harassing] the Indian communities and especially those members of the group who [harassed] and attempted to rape me and threatened my family. Why do you think this will happen to you if you go back? Because in spite of their [threats] we managed to flee from our area. This must have made them very angry. My husband was a travel manager and was warned not to use any of his travel tricks. But we managed to escape after my husband was kicked and beaten. They even will kill me because I escaped from being raped." She gave her home town. I will identify it as "X". 5 Following the rejection of her claim by a delegate of the respondent, the applicant applied to the RRT. She included in her reasons for making the application the following: "It was myself and my family who went through hell. We suffered the tortures and the [harassment]. We got the pain. Our house and belongings were looted. My children are scared because they were also being harassed. Our whole entire life will be [ruined]. We came here to seek protection and if we are sent back it will be same as giving yourself into the hands of your enemies. Please this is the matter of my life and the life of my innocent children who are looking forward for a favourable consideration." 6 The transcript of the proceedings before the RRT is not available to the Court, however the Tribunal Member succinctly set out the applicant's claims as follows, apparently summarising her evidence: "The Applicant states that she fears that if she, her husband and children return to Fiji the native Fijians will kill them. They will do this because the Applicants are Indians. The native Fijians do not want the Indians in Fiji. On 25 July 2000 the Applicant was attacked in her home by a native Fijian man. He entered the house while she was alone and doing the washing. He had a knife and threatened to kill her unless she took off all her clothes. When she refused he struck her. The native Fijian man took off her clothes and sexually assaulted her though he did not rape her. She became unconscious because of her fear. [About] one and a half hours later the Applicant's husband returned for his lunch. He found the Applicant on the floor. He took her to hospital where the doctor gave her tablets and sent her home. The Applicant did not tell her husband everything. She attempted to report the matter to the police who chased her from the police station. They yelled at her and said, 'we don't want you bastards here'. The Applicant has also been robbed when she was shopping. The native Fijians have taken her purse. Sometimes she then had no money to buy food for her family. The Applicant says that her children are harassed, teased and bullied by the native Fijians as they go to school. Because of this the children do not want to go to school and she worries about their education. The Applicant states that she has nightmares. She has problems with her husband because he thinks she is a victim of rape. The Applicants discussed their situation with former Prime Minister Chaudhry. He told them that if they could leave Fiji, then it was better for them to do so. The Applicant had an Australian visa so she decided that they should come here. She has come to Australia many times before and not attempted to stay but now things are different. It was put to the Applicant that country information suggested that law and order had been restored in Fiji and that there did not seem to be evidence that Indians generally were presently at risk of persecution. The Applicant responded that there is no law and order in Fiji now. Nobody is listening. She is frightened for her daughter. She is worried that her daughter may be assaulted as she was. The Applicant says she cannot trust the native Fijian people now."

The other materials looked at by the Tribunal 7 Having recounted the applicant's claims, the Tribunal Member said "I note the following Country Information". He then referred to two "Business Briefings" sourced from Reuters News Service and four cables from the Australian Department of Foreign Affairs and Trade ("DFAT"). 8 The first such document was from Reuters, dated 14 December 2000 and reported that the head of the military (which had taken control of the government), Commander Frank Bainimarama, had said that the military would lift the curfew imposed seven months previously, following the insurrection by ethnic Fijian nationalist rebels (George Speight and company). Commander Bainamarama was quoted as saying "Fiji is now and will remain a safe place". On the other hand, Mr Mahendra Chaudhry, the first ethnic Indian Prime Minister of Fiji, who had been deposed and kidnapped by the rebels, was quoted as saying that "the move to lift the curfew could lead to further security problems because the police force was divided and morale was low". The document also indicated that, following the George Speight coup attempt, the military had appointed an interim government made up of indigenous Fijians 9 The next document was a DFAT Report dated 20 September 2000. It said that, from the Fijian government's perspective, "there should be no risk of institutionalised mistreatment by authorities of returning Fijians, whether ethnic-Fijian or Indo-Fijian". It continued: "From a community perspective, … some Indo-Fijians remain at risk of intimidation and harassment. Isolated indo-Fijian communities in the central division [according to standard atlases, X is not in that division] were subject to some violent criminal acts at the height of the political crisis. Although such crime has now been brought under control by the military and the police, we continue to hear of isolated cases of minor harassment - mainly in the form of threats and low level theft. Increased police and military presence in potential trouble spots - plus heightened media and NGO attention to this issue - leads us to assess that the risk of significant communal mistreatment of indo-Fijians is currently low. … The military, police and the interim civilian government continue to express their public commitment to maintaining security and safety for everyone in the country. Since the end of July - when rebel leader George Speight and his key henchmen were arrested - authorities have convincingly stabilised the law and order situation. Armed checkpoints on parts of the two largest islands (Viti Levu & Vanua Levu)[the applicant's home town is on one of these] still operate as does the daily curfew on the capital of Suva and immediate surrounds (2200 hrs to 0500hrs). Good progress has been made in the arrest of rebels and escaped prisoners and the weapons they hold. The RFMF and police have demonstrated a dogged commitment to hunting down the remaining armed rebels and approximately 22 weapons believed to still be at large. Public confidence over security is now good - there is a general sense that law and order again prevails and that the security situation is under control. (Country Information Report No. 512/00 - Fijians seeking asylum in Australia, 20 September 2000 (CX45150))." 10 The third quoted document was another DFAT report dated 3 April 2001. By that time there was a caretaker government operating in Fiji, led by Mr Qarase. DFAT repeated its assessment of 20 September 2000, concluding: "the risk of significant communal mistreatment of indo-Fijians is currently low, if not lower, than reported previously". 11 Next, the Tribunal quoted a Reuters document of 15 March 2001. It in turn quoted "analysts" as saying that "the reappointment of merchant banker Laisenia Qarase as interim prime minister was controversial, particularly as it allowed indigenous Fijians to retain political power". However, the analysts welcomed pledges of an early election and "talk of a renewed commitment to a 1997 constitution that sought to safeguard the rights of Fiji's ethnic Indians, who make up 44 per cent of the population". The article continued: "That constitution was one of the main targets of last year's coup by indigenous Fijian rebels. … The key to Fiji's future as a constitutional democracy … will be whether a commission set up to review the 1997 constitution continues its work, and whether a timetable for elections holds firm. 12 A DFAT report dated 15 May 2001 apparently on the subject of "The Illegal Occupation of Property", indicated that such occupations, "even at the height of Fiji's post May 2000 political crisis - were an infrequent occurrence". However, "the last time [the Human Rights Commission] interviewed [apparently internally] displaced persons … in Lautoka, their reluctance to return to their homes stemmed more from fear of personal attack rather than [of illegal occupation of their homes]. … There is the separate issue of dispute over land lease and ownership in Fiji. This relates to the expiry of long term [rural] land leases which many indigenous landowners are choosing not to renew, resulting in the eviction of mainly Indo-Fijian cane farmer from their properties". 13 Finally, a DFAT report dated 2 October 2001 was quoted. It indicated that the general election held at the end of August 2001 was generally thought to have been free and fair. The SDL party, led by Mr Qarase, had gained 32 of the 71 parliamentary votes and formed a government with the support of 5 other members. Mr Qarase had, following his appointment as prime minister on 10 September 2001, pledged to "enforce law and order" and to serve and care for "all the people of Fiji … irrespective of their ethnic, cultural and social background". DFAT had received no reports of violence against any political figures. DFAT continued: "George Speight ran for election and is now an MP although he still remains incarcerated on nuchal island pending trial (scheduled for February 2002)…In the negotiations prior to the formation of the new government, Qarase held out against unreasonable demands from Speight's party (the conservative alliance). While Speight still has vocal support, the majority of the population of Fiji appears to want to put last year's turmoil behind them. The present law and order situation in Fiji is stable, although there continue to be reports of isolated cases of minor harassment - mainly in the form of low level theft. The military have maintained their efforts assisting the police in safeguarding public security - with an obvious presence during the elections. Both security forces have worked well at restoring confidence in public safety. The continued police and military presence in potential trouble spots including obvious and very tight security surrounding sittings of cabinet and parliament - plus continued media and NGO attention to this issue - leads us assess that the risk of significant communal mistreatment of indo-Fijians remains at the low level previously reported. The Taukei movement has made some potentially destabilising comments about former prime minister Chaudhry's challenge to the legality of Qarase's cabinet. [A]ny threat appears to be directed at Chaudhry himself rather than indo-Fijians in general. There has been slow but steady improvement in the Fiji economy since our last report, with the reserve bank forecasting 1 per cent GDP growth for 2001. Although there has been an increase in the number of redundancies this year, mainly in the garment and timber industries, there is a general expectation of a positive outlook for employment over the next twelve months. Summary Given the above factors, overall the security situation for significant groups in Fiji has not changed significantly from our last report earlier in the year."

The Tribunal's reasoning 14 The Tribunal Member set out his "Findings and Reasons" as follows: "I am satisfied that the Applicants are Fijian nationals. They are ethnically Indian. I am satisfied that they fear they may be beaten, robbed, mistreated or killed by native Fijians if they return to Fiji and it is for reasons of that fear, at least in part, that they are unwilling to return to Fiji. I am satisfied that the Applicants have in the past been mistreated and robbed by the native Fijians. In July 2000 the Applicant was sexually assaulted by a native Fijian man who had invaded the Applicant's home. The Applicant sought police assistance but was denied the protection of the law. The police chased her away. The Applicant and her children have also been subject to harassment, intimidation, and robbery by native Fijians. I note that the Applicants experience is consistent with the country information. There was breakdown of law and order in Fiji at the time. I also note that the country information states that law and order has been restored, elections have been held and while there continue to be reports of isolated cases of minor harassment, mainly in the form of low level theft, DFAT assess that the risk of significant communal mistreatment of indo-Fijians remains at a low level. While it is of course possible that the Applicants could in the future become victims of crime in Fiji I am not satisfied that there is a real chance that the Fijian government would deny the Applicants the protection of the law or be unwilling or unable to protect them. In light of the country information I am not satisfied that there is a general risk of ethnic Indians being subject to harassment such as beatings and robberies. Nor am I satisfied that the information supports a conclusion that there is a general risk that the authorities in Fiji would be unable or unwilling to protect them if they were. I am not satisfied that there is a real chance that the Applicants will be persecuted should they return to Fiji. I am not satisfied therefore that any such fear of persecution that they have is well founded." 15 Reading the Member's reasons generously, his reasoning process, in terms of the appropriate concepts of the Refugee Convention, appears to have been: (i) the applicant and her family have suffered, and she genuinely fears persecution in Fiji; (ii) on that account, she is unwilling to return to Fiji;

(iii) however, the applicant's past persecution occurred at a time of a temporary breakdown of law and order in Fiji; (iv) DFAT's assessment is that the risk of communal persecution of indo-Fijians is low and the Fijian Government would neither persecute the applicant and her family nor be unwilling or unable to protect them; (v) in light of the "country information" (including the DFAT assessment) there is not a substantial chance that the applicant or her family would fear persecution; (vi) therefore, their fear of persecution is not well-founded. 16 A number of observations may be made. In the first place, the so-called country information, other than the DFAT reports, hardly supported the hopeful DFAT assessment. Secondly, DFAT is but a department of the Australian executive government. Another department of that government is the one for which the respondent was responsible and to which his delegate, whose decision the Tribunal was reviewing, belongs. It bespeaks at least naivety not to acknowledge that, very likely, there would be governmental dismay at the prospect of many indo-Fijians claiming refugee status in Australia, and that such probable dismay would and could hardly be quarantined in the respondent's department. Further, it is notorious in Australia that the government, employing DFAT for the purpose, has a history, since the Rambuka-instigated troubles of the 1980s, of leading diplomatic intercessions in Fiji to try to engender inter-communal peace and decency. People, including in government departments, are apt to believe and contend that their efforts in such endeavours have borne fruit. Thus, it is a matter for concern that an independent statutory tribunal, dealing with matters of the gravest significance for persons such as the applicant, and having as its reason for existence to be independent of the executive government (see Fleming, G (1999) 7 Australian Journal of Administrative Law, at 33), should so uncritically adopt that government's uncorroborated assessment of a political situation in which that government notoriously has interests (see below for further reminders of others of these). I am not, of course, saying that in no case would it be right to rely on a DFAT assessment, after considering factors that might tend against its being entirely independent. It is even conceivable that in some cases where there is no observable government interest in discouraging refugee applications, uncritical reliance on DFAT assessments may be quite unobjectionable. But in the case of Fiji, Australia is at least as much a player as a shrewd spectator. Referees are expected to make their own assessments. 17 Next, the Tribunal Member focussed on but a few aspects of Fiji's then very recent history. In effect, the Tribunal Member must be taken to have assumed, on the part of the reader of his reasons for decision, a level of general knowledge of uncontroversial facts about Fijian; history over some longer period which a conscientious person, considering the applicant's case would have or could readily acquire. I am not suggesting that an historical treatise was necessary in this or any other case. However, if no such context is provided by the Tribunal, the reader (including a judge faced with an application for judicial review) must be taken to know it or, if it is relevant, must acquire it. At least, it seems to me permissible to remind oneself of such context where, as here, relevant events have been reliably and generally reported in Australia. As will appear, I have done so, having given the respondent an opportunity to correct any misunderstanding on my part. See, in any case, s 144 of the Evidence Act 1995 (Cth). 18 In this case, having regard to the indisputable context heightens concern about the Tribunal's processes.

The Fijian context 19 All of the following would have been well enough known to any Australian broadsheet reader over the past few years, if not all retained in his or her memory. I have relied, to remind myself, on uncontroversial and independent sources, in particular a US Department of State website giving a "Background Note" on Fiji (www.state.gov/r/pa/ei/bgn/1834.htm), and the UK Foreign and Commonwealth office's "Country Profile" on Fiji (www.fco.gov.uk). 20 In 2001, Fiji had a population of about 800,000 people. About 44 percent of the population were indo-Fijian and 51 percent were indigenous Fijians. 70 percent of the population lived on one of Fiji's constituent islands, Viti Levu where Suva is located. The applicant's home town, is a town of some thousands of people on one of the largest two islands in Fiji. The US State Department website indicates (I eschew the usual device of italicised acknowledgement of direct quotation, which is substantial, in the interests of easing the reader's comprehension): "More than half of Fiji's population lives on the island coasts, either in Suva or in smaller urban centers … Indigenous Fijians are a mixture of Polynesian and Melanesian, resulting from the original migrations to the South Pacific many centuries ago. The Indo-Fijian population has grown rapidly from the 60,000 indentured laborers brought from India between 1879 and 1916 to work in the sugarcane fields. Thousands more Indians migrated voluntarily in the 1920s and 1930s and formed the core of Fiji's business class. The native Fijians live throughout the country, while the Indo-Fijians reside primarily near the urban centers and in the cane-producing areas of the two main islands. Nearly all of the indigenous Fijians are Christian, with more than three-quarters being Methodist. About 80% of the Indo-Fijians are Hindu, 15% are Muslim, and the rest mostly Sikh, with a few Christians.

Melanesian and Polynesian peoples settled the Fijian islands some 3,500 years ago. European traders and missionaries arrived in the first half of the 19th century, and the resulting disruption led to increasingly serious wars among the native Fijian confederacies. One Ratu (chief), Cakobau, gained limited control over the western islands by the 1850s, but the continuing unrest led a convention of chiefs to cede Fiji unconditionally to the British in 1874. The pattern of colonialism in Fiji during the following century was similar to that in other British possessions: the pacification of the countryside, the spread of plantation agriculture, and the introduction of Indian indentured labor. Many traditional institutions, including the system of communal land ownership, were maintained. In April 1970, a constitutional conference in London agreed that Fiji should become a fully sovereign and independent nation within the Commonwealth. Fiji became independent on October 10, 1970. Post-independence politics came to be dominated by the Alliance Party of Ratu Sir Kamisese Mara. The Indian-led opposition won a majority of House seats in 1977, but failed to form a government out of concern that indigenous Fijians would not accept Indo-Fijian leadership. In April 1987, a coalition led by Dr. Timoci Bavadra, an ethnic Fijian supported by the Indo-Fijian community, won the general election and formed Fiji's first majority Indian government, with Dr. Bavadra serving as Prime Minister. Less than a month later, Dr. Bavadra was forcibly removed from power during a military coup led by Lt. Col. Sitiveni Rabuka on May 14, 1987. After a period of deadlocked negotiations, Rabuka staged a second coup on September 25, 1987. The military government revoked the constitution and declared Fiji a republic on October 10. This action, coupled with protests by the Government of India, led to Fiji's expulsion from the Commonwealth of Nations and official nonrecognition of the Rabuka regime from foreign governments, including Australia and New Zealand. On December 6, Rabuka resigned as head of state and Governor General Ratu Sir Penaia Ganilau was appointed the first President of the Fijian Republic. Mara was reappointed Prime Minister, and Rabuka became Minister of Home Affairs. The new government drafted a new constitution that went into force in July 1990. Under its terms, majorities were reserved for ethnic Fijians in both houses of the legislature. Previously, in 1989, the government had released statistical information showing that for the first time since 1946, ethnic Fijians were a majority of the population. More than 12,000 Indo-Fijians and other minorities had left the country in the 2 years following the 1987 coups. After resigning from the military, Rabuka became Prime Minister under the new constitution in 1993. Ethnic tensions simmered in 1995-96 over the renewal of Indo-Fijian land leases and political manoeuvring surrounding the mandated 7-year review of the 1990 constitution. The Constitutional Review Commission produced a draft constitution which expanded the size of the legislature, lowered the proportion of seats reserved by ethnic group, reserved the presidency for ethnic Fijians but opened the position of prime minister to all races. Prime Minister Rabuka and President Mara supported the proposal, while the nationalist indigenous Fijian parties opposed it. The reformed constitution was approved in July 1997. Fiji was readmitted to the Commonwealth in October. The first legislative elections held under the new constitution took place in May 1999. Rabuka's coalition was defeated by Indo-Fijian parties led by Mahendra Chaudhry, who became Fiji's first Indo-Fijian prime minister. One year later, in May 2000, Chaudhry and most other members of parliament were taken hostage in the House of Representatives by gunmen led by ethnic Fijian nationalist George Speight. The standoff dragged on for 8 weeks--during which time Chaudhry was removed from office by the then-president due to his incapacitation--before the Republic of Fiji military forces seized power and brokered a negotiated end to the situation, then arrested Speight when he violated its terms. Former banker Laisenia Qarase was named interim prime minister and head of the interim civilian administration by the military and Great Council of Chiefs in July. The Supreme Court reaffirmed the validity of the constitution and ordered the Chaudhry government returned to power in March 2001, after which Qarase dissolved the interim administration and declared himself head of a caretaker government until elections could be held in August. Qarase's newly formed SDL (Soqosoqo Duavata ni Lewenivanua) party won the elections. The legality of the administration is under question, however, as the SDL failed to include the Indo-Fijian party FLP in its government per the provisions of the 1997 Constitution, which states that any party receiving 10% or more of the seats in parliament must be given an opportunity to join the governing coalition. [A final, appellate decision had not been given when the Tribunal Member published his reasons.]

POLITICAL CONDITIONS For 17 years after independence, Fiji was a parliamentary democracy. During that time, political life was dominated by Ratu Sir Kamisese Mara and the Alliance Party, which combined the traditional Fijian chiefly system with leading elements of the European, part-European, and Indian communities. The main parliamentary opposition, the National Federation Party, represented mainly rural Indo-Fijians. Intercommunal relations were managed without serious confrontation. However, when Dr. Bavadra's coalition democratically installed a cabinet with substantial ethnic Indian representation after the April 1987 election, extremist elements played on ethnic Fijian fears of domination by the Indo-Fijian community. The racial situation took a turn for the worse from which it has yet [i.e. as at early 2002] to fully recover. Three coups, two discarded constitutions, and tens of thousands of outward emigrants have been the result.

ECONOMY … Fiji runs a persistently large trade deficit, although its tourism revenue yields a services surplus which keeps the current account of its balance of payments roughly in balance. Australia accounts for between 35% and 45% of Fiji's trade, with New Zealand, the U.S., the UK, and Japan varying year-by-year between 5% and 15% each. Fiji's two largest exports are sugar and garments, which each accounted for approximately one-quarter of export revenue in 1998 (roughly $122 million each). The gradual collapse of Fiji's sugar industry, due to quality concerns, poor administration, and the phasing out of a preferential price agreement with the European Union, also poses a major threat to Fiji's already uncertain economic well-being. The Fijian garment industry has developed rapidly since the introduction of tax exemptions in 1988. The industry's output has increased nearly ten-fold since that time, but the lower labor costs of Chinese competitors and the softening of a trade preference agreement with Australia have resulted in massive closures of garment factories in the country.

Other important export crops include coconuts and ginger, although production levels of both are declining. Fiji has extensive timber reserves, but forestry has become important as an export trade only since the mid-1980s. Since 1987, Fiji has suffered a very high rate of emigration, particularly of skilled and professional personnel. More than 70,000 people left the country in the aftermath of the 1987 coup, some 90% of which were Indo-Fijians. With the continued expiration of land leases and the instability surrounding the 2000 coup, an outflow of skilled workers is again being reported. More than 200,000 people, approximately 25% of the total population, participated in the United States 2001 Diversity Visa program, which awards U.S. immigrant visas through a lottery draw system." 21 Further as to the position, formal and otherwise, of Indo-Fijians, the following is drawn (again without the usual indications of direct quotation) from the UK Foreign and Commonwealth Office's "Country Profile" on Fiji: "[The 1990] Constitution guaranteed indigenous Fijian paramountcy in the most senior government and administrative positions. One of the provisions of the 1990 Constitution was that a review of Fiji's constitutional arrangements should take place before mid-1997. A Constitutional Review Commission was established in 1995 under the chairmanship of Sir Paul Reeves, a former Governor General of New Zealand. The Reeves Commission submitted 697 recommendations to Rabuka's government in September 1996. After close co-operation between all of Fiji's political parties, the Joint Parliamentary Select Committee (JPSC) set up to consider the Reeves recommendations reached agreement in April 1997 on a number of core issues: the principle of a multi-racial Cabinet; the distribution of electoral seats; adoption of a Bill of Rights; and a Compact protecting all the peoples of Fiji. The agreement received unanimous support from both Houses of Fiji's Parliament and was formally adopted on 25 July 1997. The constitutional amendments came into effect on 27 July 1998, creating a newly named 'Republic of the Fiji Islands'. Elections under the new Constitution held between 8 and 15 May 1999 produced a surprise landslide victory for the Fiji Labour Party (FLP) and Fiji's first Indo-Fijian Prime Minister, Mahendra Chaudhry.

In mid-1999, after Mr Chaudhry's election, there was a spate of bombings in Fiji. Extreme Fijian nationalists were thought to be responsible. They claimed that Mr Chaudhry's policies unfairly favoured the Indo-Fijian community. … On 19 May 2000, Fiji's first ethnic Indian Prime Minister, Mahendra Chaudhry, most of his cabinet, and a number of MPs were taken hostage in the parliament building by an armed group led by George Speight, failed businessman, son of an Opposition MP and member of a radical group of ethnic Fijian nationalists, the Taukei (the Taukei were also a cross party group in parliament). Speight was supported by a number of rebel soldiers from the elite Meridian Squadron. Following a wave of rioting and looting by Speight supporters in downtown Suva against Indo-Fijian properties, President Ratu Mara imposed a state of emergency and a curfew. After several abortive attempts to negotiate the release of the hostages, President Mara dissolved Chaudhry's government on 28 May.

On 29 May, following the ransacking of the state TV station by Speight supporters, (angry at a TV programme critical of Speight) the commander of Fiji's military, Commodore Frank Bainimarama declared martial law. On 30 May President Mara stepped aside and Commodore Bainimarama abrogated the 1997 constitution. … Following significant pressure from the international community, the interim administration committed itself to holding elections before March 2002. On 15 November 2000 Justice Anthony Gates, sitting in the High Court of Fiji, ruled that the military's abrogation of the 1997 Constitution was illegal. Justice Gates also found that Ratu Mara remained the legitimate President of Fiji and called on him to recall parliament and appoint a new government. After consulting with Fiji's Great Council of Chiefs, President Iloilo was able to engineer the re-appointment of Qarase and his interim administration as a caretaker government in order to lead Fiji to elections. These elections took place from 25 August to 1 September 2001 and were found to have been mostly free and fair by Commonwealth and UN Observers. The electorate voted mainly along ethnic lines and most of the middle-ground, multiethnic and moderate parties were all but wiped out. The SDL party of former interim Prime Minister Laisenia Qarase won the most seats (31) in the 71 seat parliament, with the deposed Prime Minister's Fiji Labour Party coming in second with 27 seats. Mr Qarase looked the most able to form a coalition and was sworn-in as Fiji's new Prime Minister on 10 September. However, Fiji's Chief Justice and others expressed concerns over the constitutional legitimacy of Mr Qarase's failure to include members of the Fiji Labour Party in the Cabinet that he announced on 12 September. Under Fiji's 'rainbow' constitution, all parties with over 8 seats in parliament are entitled to a number of Cabinet positions proportionate to their share of the vote. Former Prime Minister Chaudhry launched a legal challenge to this decision. The case was heard by Fiji's Appeal Court in February 2002. (The Court decided that, according to the country's 1997 Constitution, the Fiji Labour Party was entitled to seats in the Cabinet. But they passed the case to the High Court for a ruling. The High Court found in favour of Chaudhry in April. Qarase has appealed to the Supreme Court and they were expected to hear the case in November 2002.)" (emphasis added)

22 On the subject of Human Rights, the UK Foreign and Commonwealth Office says: "Race relations in Fiji are generally harmonious, with the ethnic Fijian and ethnic Indian communities living largely separate lives, although there were many reports of violence and discrimination against ethnic Indians in the wake of the hostage crisis in May 2000. The 1997 Constitution requires that full account should be taken of the interests of all communities. It is unlawful to discriminate on the grounds of colour, race or ethnic origin and it is an offence to incite racial disharmony. The government has said that it is committed to involving women as equal partners in the national, political, economic and social development of the country." 23 As to 2001 events in Fiji, the following is taken from the "Sydney Morning Herald" online and free "archives": "Fiji set for rocky path to the polls One year after George Speight and his armed rebels trashed Fiji's democracy, the island nation is tiptoeing back towards constitutional rule, albeit in an atmosphere fouled by suspicion, anxiety and distrust. The Age 19/05/2001 Australia may help monitor Fiji poll Australia is standing by to send observers to the August elections in Fiji, where deposed Prime Minister Mahendra Chaudhry this week expressed fears of intimidation and vote rigging. The Age 16/06/2001 Democracy will be a real coup for divided Fiji The looting mobs and all-night curfews are gone. But that can change if the people don't vote in the 'right' leader, writes Murray Mottram in Suva. Sydney Morning Herald 16/06/2001 Fiji crisis hero found hacked to death A leading figure in last year's parliamentary hostage crisis in Fiji, John Scott, was yesterday found hacked to death alongside another man in his home in Suva. The Age 02/07/2001 Unity unlikely as Fiji politicians start manoeuvring Widespread requests from home and abroad for a government of national unity in Fiji - including from New Zealand's Foreign Minister, Mr Phil Goff - appear unlikely to be answered as President Ratu Josefa Iloilo prepares to call on the interim Prime Minister, Mr Laisenia Qarase, to name his team. Australian Financial Review 10/09/2001 " Fiji brinkmanship The newly confirmed Prime Minister of Fiji, Mr Laisenia Qarase, is prepared to [jeopardise] the stability offered by the recent general election that returned his country to democracy. He is refusing to share power with the minority Indian community and appoint any Indo-Fijian to his Cabinet. His intransigence reopens the door to the racism and discord that has racked Fiji since ethnic Fijian leaders turned to coups to assert their power. Sydney Morning Herald 14/09/2001 Sanctions on Fiji end Australia has lifted sanctions imposed on Fiji since George Speight took parliament hostage and toppled the elected government 15 months ago, despite controversy over the constitutionality of its new government. The Age 06/10/2001 24 As to events in the applicant's home town, a standard library reference work (the first and only one that I consulted), "The Far East and Australasia" 2003 (Europa Publications, London, 2003), says: "Incidents of civil unrest (including the occupation of the hydroelectric dam at Monasavu and of the army barracks on Vanua Levu) continued throughout July 2000 as Speight sought to manipulate existing grievances, particularly disputes over land ownership, in order to mobilize additional support. On 29 July, however, Speight was finally arrested, along with dozens of his supporters, for breaking the terms of his amnesty by refusing to relinquish weapons. Armed rebels responded violently to the arrest, and in [the applicant's home town] Indian Fijians were rounded up and detained in army barracks by supporters of Speight." 25 Normally, of course, it would be impermissible in proceedings for judicial review to have regard to such a reference for such a purpose. In particular, the purpose falls outside reminding oneself of a context taken to be assumed because well-known, that I referred to in [17] above. However, where there are (as will appear) concerns about the reality of a purported review engendered by a possibly inadequate degree of engagement with the problems, it seems to me permissible and even necessary to look to such matters to test the validity of those concerns.

Consideration 26 Thus, in the fifteen years to October 2001 when the Tribunal gave its decision, · there were three successful armed coups d'etat motivated against equality for Indo-Fijians; · the Fijian government (as at the time of the Tribunal's decision and still in office) had recently refused to honour the 1997 Constitution. This had been endorsed by the first coup leader, Colonel Rambuka, and by the Great Council of Chiefs and seriously compromised Indo-Fijian political equality out of sensitivity to indigenous Fijians' concerns; · there had been widespread incidents of severe violence against Indo-Fijians, including in the applicant's home town and at the instance of elements of the armed forces there; · the voting pattern in the 1999 election suggested a sharpening of concern about ethnically conceived interests of the people; · economic instability was apparent; and · successive Australian governments had an interest in propagandising not only the desirability, but the supposed reality, of a "return" to mostly quiescent race relations in Fiji. This was the real situation in which an assessment needed to be made of whether the genuine fear of persecution held by an already persecuted Indo-Fijian woman was "well-founded". 27 Drawing on an observation by Gummow J in Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291, the Full Court of this Court held in Flentjar v Repatriation Commission (1997) 48 ALD 1 that an Administrative Appeals Tribunal "review" of administrative decisions must be "proper, genuine and realistic" (see also Spender J at first instance: (1997) 47 ALD 67 at 71-2). 28 Dealing with an earlier statutory regime under the Migration Act 1958 (Cth) ("the Act") limiting the potential for judicial review in this Court, another Full Court in Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 found that that regime denied the availability of alleged failure to give "proper, genuine and realistic consideration" to an application as a ground of judicial review under that Act. The Court also had some criticisms of the precise formulation: "proper genuine and realistic" which, with respect, have some force. Even so, the Court acknowledged (at [78]-[80]) that, under that now superseded Migration Act judicial review regime, there was: "some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to "review" the decision of the Minister. In other words, although we consider the use of the formula "proper, genuine and realistic consideration" to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth "considered" the application for a visa at all. It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister's decision (rather than a rehearing de novo), it would be difficult to avoid the conclusion that it had failed to "review" the decision, in accordance with the requirements of the Act. Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction. Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had "considered" the application. These examples are admittedly extreme." (emphasis added) 29 Nevertheless, the "proper realistic and genuine" criterion was applied by the Full Court in Flentjar, and I drew attention in Hendy v Repatriation Commission [2002] FCA 602 at [61] to reasons why Anthonypillai should be regarded as having a limited continuing effect after the recent amendments to the Migration Act: "The availability of "proper, genuine and realistic consideration" as a ground of review under Part 8 of the Migration Act 1958 (Cth) was rejected by a Full Court of this Court in Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426. However, the court in that case made it clear that its conclusions were based solely on the Migration Act and in reaching its conclusion made reference to the limited grounds of review available in this Court, under Part 8 compared with the much broader powers of review granted to this court by the Administrative Decision (Judicial Review) Act 1977 (Cth). 30 On appeal from my decision in Hendy there was no criticism of the "proper genuine and realistic consideration" doctrine in relation to the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Full Court (see [2002] FCAFC 424) said: "While it may be an error of law for an administrative decision-maker to fail to give proper, genuine and realistic consideration to the question before it, reaching an erroneous conclusion after a genuine consideration of the evidence is not an error of law." (emphasis added)

31 Indeed, technically, Anthonypillai might possibly now be regarded as entirely distinguishable by reason of legislative amendments and the course of judicial decision-making, e.g. Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 32 Nevertheless, I acknowledge the Anthonypillai criticisms of the Flentjar formula. Even so, it is surely the case that a "review" must be a real one. 33 The task, it is trite law, on a "review" such as that entrusted to the Tribunal is to come to the correct or preferable decision. That implies that, in every case, there should be careful consideration of the merits (see also Migration Act s 420(2)(b). What is irreducibly required to amount to a lawful exercise of such a decision-maker's jurisdiction, by way of such careful consideration, will depend in part upon what is at stake as a result of the decision being reviewed and, in part, upon the nature of the case and the material before the decision-maker. 34 In refugee cases, it is (in a phrase of Toohey J's (see Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379)), human fate, perhaps life itself, that is at stake. The decisions in refugee cases are often more momentous than in most criminal proceedings. It is hard to imagine administrative decisions which, of their nature, call in principle, for more anxious review by any independent administrative tribunal charged with that task. 35 In this case, as indicated, an Indo-Fijian woman had been sexually assaulted and was chased away by the police, by inference, because of her ethnic status. The applicant's claim was that the ethnic Fijians did not want to co-exist in the one country with Indo-Fijians. It is both the clear inference from the US and British materials to which I have referred and a matter of notoriety in Australia that, on the part of many ethnic Fijians, that is so. That common knowledge must, in the circumstances, be taken to have been part of the material before the Tribunal. Thus, by the nature of the applicant's actual case and by reason of the material actually and constructively before the Tribunal, the applicant's case called for the closest consideration. Anything less would not be a real review of the delegate's decision. 36 What occurred, however, was a perfunctory examination of and uncritical reliance upon a few items of unsupported material from a source at grave risk of partiality towards the position taken by the respondent's delegate. The means for the Tribunal Member to remind himself of other matters of common knowledge in Australia were, however, readily at hand. Judges of this court are aware that the Refugee Review Tribunal has a formidable library and that Members of the Tribunal have access to researchers. 37 It was necessary that, in order to check whether the applicant's fears were well-founded, the Tribunal, as an independent body, should have regard to materials independent of the Australian government, if they were available. Two very short such items were consulted. They were equivocal, and as such did not tend against the applicant's claims. The other material referred to by the Tribunal was, on its face, not independent. 38 To leave the matter where the Refugee Review Tribunal left it was, regrettably and simply, not to have performed a real review. Some estimate was needed of the possibilities (since less than a probability of persecution would suffice) of a re-ignition of ethnically motivated violence against the applicant and/or her family. It was necessary to consider the prospects of the applicant for some reasonable period into the future, rather than, as it were, on a month-by-month assessment. The ability of Fijian leaders, albeit subjectively well-motivated (though, it might appear, within limits) to ensure that effective protection would flow down to town, suburb or village level in the region whence the applicant came, needed assessment. If, as seems not to have been the case, there was a dearth of reliable independent materials (which one would expect to be noted), an explanation would be expected, in the circumstances of this case, of how much weight could safely be attached to materials emanating from the Australian government itself. Taken one at a time, these criticisms might perhaps be dismissed as impermissible judicial second-guessing of the lawfully authorised, administrative fact-finder. But, in my opinion, the case and its circumstances, including unaddressed matters, should be seen as a whole and the criticisms have a cumulative weight that qualitatively transforms them. In my opinion, what happened in this case cannot fairly be called a real review, an appropriately careful and close examination of the merits of the applicant's case. 39 I should also say that it will hopefully be a rare case where a judge can or should find this and I do so with great hesitation. The Tribunal Member may have suffered from an overload of work. What he published as his reasons may have represented no more, in reality, than a fraction of them. He may have consulted other materials. But, in the end, the applicant and the court have only what the Member wrote for guidance. If there was a proper

grappling with the matter, that is simply not sufficiently apparent. In MIMIA v Yusuf (2001) 206 CLR 323 at [5], Gleeson CJ said: "When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out 'the findings on any material questions of fact'. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material." 40 To like effect, McHugh, Gummow and Hayne JJ said of s 430 at [69]: "It [s 430] ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution." 41 It follows that there has been a constructive failure by the Tribunal to exercise its jurisdiction. 42 The case might, as often appears in administrative law, be analysed in different ways. For example, not to have addressed the position of the applicant and her family for some reasonable period into the future, rather than on what I have called a kind of month-to-month assessment, might be said to evince a jurisdictional failure to comprehend the true nature of a well-founded fear of persecution. Not to have regard to matters fairly regarded as being within common knowledge might be seen as failing to take into account material considerations, and therefore as a species of jurisdictional error: cf Craig v South Australia (1995) 184 ALR 163 at 176-8. And so on. 43 However, at the heart of such likely failures in this case, there lies, in my opinion, a failure to engage with the realities of the matter. It seems to me that it is appropriate, by way

of analysis, to look at the matter through the prism that seems to afford the best view into whether the Tribunal really exercised its jurisdiction, and if not, why. 44 It should be unnecessary to add that I neither hold nor suggest any view as to whether or not the applicant is entitled to refugee status. My conclusion is simply that the process of assessment, necessarily calling for inquiry and cogitation, engaged in by the Member was so inadequate, in terms of apparent care and of coming to grips with the obvious problems, that the applicant has not really had a review of the delegate's decision.

Disposition 45 For these reasons the application must succeed. The matter will be remitted to the Tribunal, differently constituted, to be dealt with in accordance with law. I will hear the parties as to costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: ## April 2003 Solicitor for the Applicant: Mr Newman of Newman & Associates