NTJM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 1150

NTJM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1150 (21 May 2024)

Division:GENERAL DIVISION

File Number:          2024/1252

Re:NTJM

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:21 May 2024

Place:Melbourne

The decision of 28 February 2024 not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.

...........................[sgn].............................................

Senior Member D. J. Morris

Catchwords
MIGRATION – the applicant is a citizen of the Republic of Fiji – applicant held spouse visa – visa cancelled under Migration Act because of substantial criminal record – applicant does not dispute he does not satisfy character test in Act – discretion to nonetheless find another reason to revoke cancellation of visa – applicant made representations to minister’s delegate – delegate affirmed cancellation decision – applicant sought review by Tribunal – ministerial direction – primary considerations – protection of the Australian community – serious sexual offending against children – other violent offending – whether conduct involved family violence – family violence offending – ties to Australia – best interests of minor children in Australia – expectations of the Australian community – other considerations – discretion not enlivened – decision under review is affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs (2019) 272 FCR 454
Ismail and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 2

Maxwell v The Queen (1996) 184 CLR 501

Secondary Materials

Migration Act 1958 – s 499 direction – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)

REASONS FOR DECISION

Senior Member D. J. Morris

21 May 2024

1. As the facts of this matter relate to minors who might be identifiable if the Applicant’s name is published, on 7 March 2024 the Tribunal made an order under s 35 of the AdministrativeAppeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of his name and substituting the anonym ‘NTJM’.

2. NTJM is aged 40 and is a citizen of the Republic of Fiji. Aged 20 he married Ms FW, and he and his wife adopted a male child, who was born in 2003.

3. In 2004 NTJM travelled to Australia with Ms FW, and he was granted a Spouse (Class BX)(Subclass 100) visa in 2006 on the basis of his relationship with her. In October 2006 Ms FW had a daughter by the Applicant. In 2007 or 2008 NTJM and Ms FW separated, and they divorced in 2010.

   OFFENDING HISTORY

4. In December 2007, an Intervention Order was made against NTJM, initiated by the police in relation to the protection of Ms FW, their son and their daughter. In 2009 the Magistrate’s Court of Victoria made an Intervention Order against the Applicant, again for the protection of Ms FW, their son and their daughter. The Order prohibited NTJM from committing family violence against his former wife and children and restricted his contact with them.

5. In 2009 NTJM was before the Magistrate’s Court and convicted of the offence of Recklessly causing serious injury. He was sentenced to a Community Based Order (CBO) for 12 months. The offending in this case involved an argument between NTJM and another man at a hotel. NTJM headbutted the victim, causing him a broken nose requiring surgery and dislodging teeth.

6. NTJM did not complete the terms of the CBO. He was returned to Court because of this breach and received a partially suspended sentence. He appealed this and, in its place, received an Intensive Corrections Order (ICO) for 12 months. He then breached the ICO and came back to Court where the ICO was extended to September 2012. He again contravened the ICO and in February 2014 NTJM was gaoled for 41 days for the unexpired part of the ICO.

7. Around 2011, NTJM began a relationship with a woman who will be called Ms AN. In February 2012, Ms AN’s sister, Ms NN, who was then aged 14, made a complaint to police. She said that the Applicant started touching her body, buying her cigarettes and supplying her with ‘weed.’ She said in around February 2012 NTJM had sexual intercourse with her against her wishes, and that they had had intercourse on two or three occasions. The Judge in sentencing NTJM for this conduct described the offending as penile penetration on two occasions and digital penetration on three occasions.

8. In August 2012, the Magistrate’s Court made an intervention order to protect Ms NN following reports to police that NTJM had assaulted her. The complaint recorded by police was that NTJM struck Ms NN three times and, some time before, had held her by the throat and warned her not to speak to police.

9. In 2012, NTJM began a relationship with a woman who will be called Ms EC. Ms EC at the time had three young children, ranging in age from 9 to 4. In December 2013 Ms EC gave birth to a girl by the Applicant, who will be called AD.

10. In February 2012, a Full Interim Intervention Order was made against the Applicant described as protecting NTJM’s ‘girlfriend’. An altercation was reported to police on that date of NTJM spitting in the face of his girlfriend and punching her to the right leg.

11. During 2013, the police attempted to locate NTJM in relation to the complaint laid by Ms NN. He was eventually arrested and interviewed in February 2014. He denied any offending but admitted he was aware of the allegations.

12. In March 2014, the Magistrate’s Court convicted NTJM of the offences of Unlawful assault and Failure to answer bail. He was sentenced to an aggregate term of seven day’s gaol. The offending conduct was described as NTJM hitting Ms EC while she was pregnant with their child.

13. Sometime in the period between March and May 2014, NTJM came home drunk. He punched Ms EC a number of times, including to her face. He then began touching her sexually, but she rejected his advances. He responded by grabbing her throat, lying on top of her and raping her, while still holding her throat. In November 2015, NTJM pleaded guilty to charges of Rape and Intentionally causing injury in relation to these events.

14. In June and July 2014, NTJM hit Ms EC to the face with the back of his hand. She told him not to hit her in front of the children. The Court recorded that he threw her to the ground and slammed her head onto the floor. NTJM then punched Ms EC and held her captive in her bedroom for two hours. NTJM pleaded guilty to the offence of Common assault in relation to this incident.

15. In July 2014, NTJM spat into Ms EC’s face during an argument. Later the same month, in arguing about that incident, the Applicant threw Ms EC onto her bed and threatened her. He forced his thumb into her mouth, causing bleeding. He threatened to kill her after she screamed. NTJM pleaded guilty to the offences of Intentionally causing injury and making a Threat to kill, in relation to these events.

16. In July 2014, Ms EC went to the police. She reported domestic violence and rape by NTJM. She told police he had threatened to kill her if she went to police, and she believed he would carry out the threats. She also said that ‘the children had all witnessed domestic violence.’ At the end of July, an Intervention Order for 12 months was made against NTJM, protecting Ms EC and the children. Nonetheless, NTJM resumed living with Ms EC. For four months between December 2014 and March 2015, the police attempted to locate the Applicant. In March 2015 he voluntarily reported to a police station where he was charged for offences against Ms NN and Ms EC, and bailed.

17. Less than two weeks later he was living again with Ms EC, in contravention of a bail condition. He attacked her, and was arrested. Less than a fortnight later, NTJM sent Ms EC text messages asking her to contact him, in breach of a Family Violence Intervention Order and, in so doing, committing an indictable offence whilst on bail.

18. On 28 April 2015, NTJM entered custody, having been arrested. On 15 July 2015 he pleaded guilty to the offences against Ms NN and, at a Court hearing in November of the same year, pleaded guilty to the offences against Ms EC.

19. In December 2015 the County Court of Victoria convicted NTJM of the following offences: Sexual penetration of a child under 16 years (3 years and 6 months’ imprisonment); Sexual penetration of a child under 16 years (3 years and 6 months’ imprisonment, to be served concurrently); Contravene a conduct provision of bail (One month imprisonment, to be served concurrently); Rape (5 years and 6 months’ imprisonment); Intentionally causing injury (2 years’ imprisonment, 21 months of which was to be served concurrently); Intentionally causing injury (18 months’ imprisonment, of which 12 months was to be served concurrently); Common law assault (20 months’ imprisonment, of which 17 months was to be served concurrently); Common law assault (12 months’ imprisonment, of which 9 months was to be served concurrently); Make threat to kill (16 months’ imprisonment, to be served concurrently); Contravene a Family Violence final Intervention Order (10 months’ imprisonment, to be served concurrently); Contravene a Family Violence final Intervention Order (2 months’ imprisonment, to be served concurrently); and Commit an indictable offence whilst on bail (14 days’ imprisonment, to be served concurrently). The aggregate sentence was eight years and three months imprisonment.

20. As a result of the offending, NTJM was registered on the sex offenders’ register for life.

21. In January 2019, whilst serving his gaol sentence, NTJM assaulted another prisoner. The victim was initially unresponsive and sustained facial injuries. For this assault, NTJM appeared before the Magistrates’ Court of Victoria in December 2020 and was convicted of the offence of Intentionally causing injury. He was sentenced to nine months’ imprisonment, with six months to be served concurrently. The Applicant applied for parole in February 2021 but was refused parole in March 2023.

    VISA HISTORY

22. In March 2019, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (‘the Act’). He made representations seeking revocation of the mandatory cancellation of his visa. On 28 February 2024, a delegate of the Respondent decided not to revoke the mandatory cancellation decision.

23. That decision was sent by email to NTJM’s then legal representatives on 28 February 2024 (GD, p 6). It is therefore deemed to have been received by him on that date. Under s 500(6L) of the Act, the Tribunal must make a decision in relation to the decision under review within the period of 84 days beginning on the day after the person was notified of the decision. The parties agreed that the eighty-fourth day is 22 May 2024.

24. On the same day, NTJM lodged an application with the Tribunal, asking for a review of the delegate’s decision not to revoke the mandatory cancellation of his spouse visa.

    HEARING

25. A hearing was conducted by video link on 13 and 14 May 2024, under s 33A of the AAT Act. The Applicant represented himself. He made submissions, gave evidence and was cross-examined by Mr Tigiilagi Eteuati, Senior Lawyer of The Australian Government Solicitor, representing the Respondent. The Applicant called other witnesses: his ex-wife, Ms FW; Mr RE and Mrs PE, friends; and Ms KW, his current partner.

26. The Tribunal admitted into evidence the documents listed in the annexure to these reasons. The Tribunal also had regard to a Statement of Facts, Issues and Contentions submitted by the Respondent. At the conclusion of the hearing the Tribunal reserved its decision.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

27. The Act requires, at s 501(3A) that the Minister must cancel a visa if he is satisfied that the non-citizen holding it does not pass the character test because of the operation of s 501(6)(a) of the Act, through ss 501(7)(a), (b) or (c), and the person was at the time of the visa cancellation serving a sentence of full-time imprisonment in a custodial institution for an offence. Subsections 501(7)(d), (e) and (f) are not relevant in this case.

28. Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a ‘substantial criminal record’, and s 501(7)(c) of the Act provides that if a person has been sentenced to a term of imprisonment of 12 months or more, they automatically have a ‘substantial criminal record’. The key here is the sentencing, not whether or not the person is actually gaoled for 12 months or more.

29. Section 501CA(4) provides that the Minister, or the Tribunal standing in his shoes, may revoke a mandatory cancellation decision if satisfied that the person passes the character test. Secondly, the mandatory cancellation decision may be revoked if the Tribunal, as decision-maker on review, is satisfied that there is ‘another reason’ under s 501CA(4)(b)(ii) of the Act that the visa should be restored to the person.

30. NTJM accepted that he does not pass the character test. The Tribunal finds on the basis of his custodial sentence and the fact that he was incarcerated on a full-time basis for his offending at the time his visa was cancelled, that he does not pass the character test.

31. Therefore, the question before the Tribunal is confined to whether there is ‘another reason’ to revoke the mandatory cancellation of NTJM’s visa.

    THE MINISTERIAL DIRECTION

32. In forming a view on whether there is ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of NTJM’s visa, the Tribunal must have regard to the relevant contents of any direction made by the Respondent Minister. The Minister has made a direction under s 499 of the Act (‘the Direction’).

33. The Direction sets out objectives, principles and how a decision-maker should exercise the discretion. It lists five primary considerations which must be considered by decision-makers. It also sets out four other considerations, which may be relevant to the non-citizen’s circumstances. However, these other considerations are not an exhaustive list. Any other consideration in the circumstances relevant to the purposes of the Act can be taken into account by the Tribunal.

    Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

    The nature and seriousness of the conduct (para 8.1.1)

34. The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.

35. There is no doubt that NTJM has committed very serious crimes. They involve physical violence against both strangers and intimate partners, sexual crimes against a child, and domestic violence in the presence of other children. He has also committed offences which constitute acts of family violence.

36. Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; and any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. Although the Tribunal considers that children are ipso facto vulnerable persons, it would be double counting to include them in this sub-category. The other offences described do not seem relevant to NTJM’s offending history.

37. Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes. NTJM has received very substantial custodial sentences, and other sanctions available to the Court. He has also received sentences or an increase in the severity of orders as a result of his breaches and non-compliance with Court orders.

38. Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness. There has been relatively frequent and sometimes violent offending by NTJM before he entered into custody. There is a trend of increasing seriousness where, in spite of various sanctions being imposed, NTJM has returned to commit assaults against his intimate partner at the time, Ms EC. His sexual penetration of Ms NN was particularly heinous because it was conducted in an environment of threats to her when she was of a tender age. There is also the violent offence committed in January 2019 where the Applicant assaulted a fellow prisoner.

39. Paragraph 8.1.1(1)(e) requires the Tribunal to consider the cumulative effect of repeat offending. There has been a cumulative effect of regular offending through crimes of violence against intimate partners and more than one sexual offence against a minor.

40. Paragraph 8.1.1(1)(f) requires the Tribunal to consider whether the Applicant has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. There is no such evidence before the Tribunal.

41. Paragraph 8.1.1(1)(g) of the Direction requires the Tribunal to consider whether the non-citizen has re-offended after being warned by the Department or otherwise made aware in writing of the consequences of further offending on the person’s migration status. There is no such evidence before the Tribunal.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

42. The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused by it, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.

43. Paragraph 8.1.2(2)(a) of the Direction requires the Tribunal to have regard to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of engaging in further criminal or other serious conduct. The nature of harm to the community if the Applicant continued to offend would, because of the nature and frequency of his offending be likely to involve physical assaults on persons, including possibly intimate partners. It may also involve further offences against minors.

44. There were three psychological reports before the Tribunal in relation to assessments of risk of re-offending by the Applicant. The first was dated 10 July 2019 and was by Ms Elizabeth Warren, a forensic psychiatrist. She concluded that NTJM was a “low to medium risk of recidivism” (GD, p 106). In his oral evidence, NTJM agreed that was her assessment but also agreed that he went on to commit a further violent offence, after she had furnished her report. The Tribunal asked the Applicant whether he thought the least weight should be given to this report, of the three, because it also predated some of his rehabilitative courses. NTJM agreed. In the light that this report does not take into account later offending nor rehabilitative measures, the Tribunal gives this report no weight.

45. The next psychological report was by Ms Emily Mayne of Forensic Investigation Services of Corrections Victoria, dated 12 August 2020 (GD, pp 66-91). Ms Mayne provided a very comprehensive narrative of her examination of NTJM. She also administered a Static-99 Actuarial Risk Assessment and recorded that his total score was 4, which “places him in the Moderate-High Risk Category relative to other male sexual offenders.” (Emphasis in original). Ms Mayne also administered The Risk for Sexual Violence Protocol (RSVP) actuarial tool. She concluded (GD, p 85):

    Overall Sexual Risk outcome

    …Overall, upon consideration of the presence of both meaningful risk factors as well as relative strengths, [NTJM] is assessed as falling into the Moderate-High risk category of sexual recidivism. This means that he is in a category that poses a higher risk than the average sexual offender.

1. In her overall conclusions, Ms Mayne made three assessments. In terms of the Empirically Guided Sexual Risk outcome, her conclusion was a ‘moderate-high’ risk. In terms of the Empirically Guided Intimate Partner Violence Risk Outcome, her conclusion was a ‘high’ risk. In terms of an Empirically Guided Violence Risk Assessment, she found a ‘moderate’ risk (GD, p 90).

2. Ms Nina Hingley, also of the Forensic Intervention Service, wrote the third and most recent relevant psychological report. It is dated 21 November 2022 (RB, pp 112-132). Ms Hingley said that her report should be read in conjunction with that of Ms Mayne. There was a concerning passage in her narrative at RB, p 121:

   As treatment progressed, [NTJM] maintained some ambivalence but appeared to identify that consent may not have been present at the time of the offending against the second victim. For example, he stated “she didn’t give me a clear indicator during sex” but reflected that due to his physical strength as a rugby player and personality as a leader that there was a possibility of coercive control. However, he maintained to the end of the treatment that he was confused as to why she and the children left him after the offending. In addition, he stated, “I never asked for consent for anything…it didn’t exist…what is consent.” He further reflected that his partner was afraid to communicate anything to him during the relationship. He reported that his mindset had shifted, stating, “consent is a key component in a relationship, I didn’t realise this” however, this clarity surrounding consent would be present in one relationship to justify offending, stating at the time he thought “I am putting your kids through school, I can do what I want” which was a view he no longer supported at the end of his treatment.”

3. Ms Hingley recorded and endorsed the same risk assessments as determined by Ms Mayne (RB, p 132).

4. Early in his cross-examination of NTJM, the Minister’s lawyer asked NTJM about an intervention order taken out on him by Ms FW in 2007. At this time, Ms FW had moved into another house with their son and daughter. NTJM was asked to describe what happened.

5. He said that he had finished work and went around to the house. He and Ms FW had had a text message exchange about the visit. He said, “There was a bloke there. She told me not to come in. I decided to knock on the door. She was afraid, thinking I would be aggressive. I knocked on the door. She called the police on me.”

6. Mr Eteuati asked NTJM whether he was aggressive. He responded, “Yes. I didn’t leave until she called the cops. I was there for about five or ten minutes. I was angry, confused. Mixed messaging. I thought she was trying to make me jealous. I insisted on hanging around because of the children.”

7. Mr Eteuati asked NTJM whether he threatened the other man. He responded, “No. I just wanted to see the children as we originally planned. No threats whatsoever until the bloke came out to his car. He drove off. I guess he felt intimidated by my stature.”  NTJM said his height is six foot three inches, and he weighed at the time between 85 and 90 kilograms.  He went on, “I went around the back and came back and found him running to his car. Because I was rushing, he thought I would be aggressive.” NTJM said he went around the back of the house but when asked whether he knocked on the back door, as well, responded, “No.”

8. The Applicant said he wanted to have a conversation with the other man, because he started to put the blame on him, that he did not want him (NTJM) to see his children.

9. Mr Eteuati asked whether he caught up to the man. The Applicant responded, “No. He drove off as I approached my car. The police arrived. I approached the police and said, if you received a call, I am the person you are looking for. They took me to [redacted] police station.”

10. When Ms FW gave oral evidence the following day of the hearing, she was asked about this same incident.  Ms FW was asked why the initial intervention order was taken out. She said, “NTJM came to the house. He came unannounced. I had a friend there. He tried to break in. Smashed windows. Tried to get through the roof. He pulled tiles off. The police came.”

11. Mr Eteuati asked why the Applicant was trying to get into the house. Ms FW responded, “He was very angry. I suspect he was trying to hurt the other person. He became violent. Shouting. Trying to break the front door by slamming into it. Throwing things. He jumped on the roof. He tried to smash a window, but it didn’t break. He threw a bin at the window.

12. The Tribunal clarified that Ms FW had said the Applicant ‘smashed windows.’ Ms FW said that he tried to, but whatever he threw bounced off.

13. Ms FW asked if there was a confrontation between the Applicant and the other man. She responded, “My friend decided if he left it might defuse the situation. He drove off. NTJM proceeded to follow him in his car. The police arrived. They caught up with him around the corner.”

14. Mr Eteuati asked Ms FW what the Applicant was saying. She responded, “He was using unpleasant language, you can imagine. He called me names. It is years ago, but I remember he called me a slut. The children were there and witnessed it. They saw everything. They could hear him on the roof.”

15. Ms FW noted that the first IVO was taken out by the police. The Respondent’s lawyer asked why she renewed it. She said, “NTJM didn’t abide by the initial order conditions. He still rang and threatened and came around to my house. He was threatening to come and take the children. I took it out to protect them. Enough to make me feel unsafe.”

16. Ms FW was asked why she extended the order in 2010. She replied, “Another extension was made. The same pattern of behaviour.” She said she did not seek further extensions after 2011 because she sought advice and was told that as NTJM was by then in gaol he had not done anything that warranted the extension.

17. Ms FW was asked why she wanted the further extension. She responded, “He wanted to see the children. If he made an arrangement, sometimes he would show up, sometimes not. He didn’t pay any childhood support. He was an alcoholic. I wanted stability in their lives. Over sixteen years, maybe he paid $1,500 or something. Not much.”

18. Ms FW was asked why she said NTJM was an alcoholic. She responded, “He was an alcoholic when we married. He didn’t remember what he was doing. One night I did call the police. They came around and took his car keys for the night.”

19. Faced with the two widely differing accounts of the event leading to the first IVO, from the Applicant and his former wife, the Tribunal prefers that of Ms FW. None of what she said was directly inconsistent with the evidence the Applicant gave, except in regard to NTJM driving off in his car. Her account was however much more detailed and had the ring of plausibility. The Respondent’s lawyer urged the Tribunal to conclude that the Applicant had lied in his evidence. Certainly, the Tribunal considers what he said was significantly sanitised. He made no mention of throwing a bin at the window, or of climbing on the roof of the house. His account of how he was apprehended was completely different. While two people can honestly differ in recollections about an event some years ago, the Tribunal concludes NTJM’s evidence was deliberately selective to put as good a gloss on what actually took place as he could, in the circumstances.

20. In respect of his offending against Ms EC, NTJM agreed with Mr Eteuati that he introduced Ms EC to “ice.” He said, “She asked me. I didn’t forcefully give it to her. I take full responsibility of introducing her.” At the time she had three children of her own and was pregnant with NTJM’s daughter. He said, “It gave a fake ‘feel good’ moment. I was not in the right frame of mind. I regret how I introduced her to it.”

21. NTJM was taken to sentencing remarks where the Judge referred to him coming home from work earlier because Ms EC had not responded to a text message. His Honour said, “You smashed dishes and struck her a forceful blow across the face.” NTJM agreed he did that. This founded the basis for the offence of Common assault.

22. Later in his evidence, NTJM amended his statement and said he smashed dishes, but did not strike Ms EC across the face, but pleaded guilty.

23. NTJM was asked whether on another occasion he came home drunk and punched Ms EC a number of times, including to her face. He responded, “That never occurred.” Mr Eteuati read to the Applicant the following extract from the sentencing Judge’s remarks:

    You began touching her sexually, but she rejected your advances, telling you that was because you had punched her. Your response was to grab her by the throat, lay [sic] on top of her, and rape her by putting your penis in her vagina, while still holding her around the throat. You punched her again, then ejaculated and fell asleep.

24. NTJM responded, “I admitted un-consensual sex. There was no indication from her. Never once was I physically violent. I know I had sex with her that night.”

25. It was noted that the Judge found that these facts founded the offence of rape, and asked the Applicant if he denied raping Ms EC. He responded, “I pleaded guilty. I accepted full responsibility.”

26. The Tribunal asked NTJM directly about a passage where a psychologist recorded that he told her that he did not think you could have non-consensual sex in a relationship, especially with a person who had borne your child. The Applicant responded, “Yes, that is what I said. I now have a better understanding. I don’t recall putting my hand around her neck.”

27. NTJM then said he denied hitting Ms EC at all. He was asked whether he denied Ms EC indicating she did not want to have intercourse. He responded, “I denied it was verbal.”

28. This exchange then took place:

    Respondent:    You knew it was illegal to have sex with a person against their will.

    Applicant:It wasn’t my understanding. She was known to me. She bore me a child. I was under the influence.

    Respondent:   Because she didn’t say no, it was ok to go ahead?

    Applicant:That was my understanding at the time. I didn’t punch her or hold her on the throat.

    Respondent:   Did you ever punch Ms EC?

    Applicant:Never. I have threatened and reached into her mouth when we were having an argument. It was a form of violence – I had to do it to stop her yelling. I was running from the police at the time.

    Respondent:   Why were you running from the police?

    Applicant:Because of the fourteen-year-old.

    Respondent:   You were actively trying to avoid the police?

    Applicant:Yes.

    Respondent:   Did you apologise to Ms EC for your behaviour, and she then returned to you?

    Applicant:Yes.

    Respondent:   Why apologise when you’d done nothing wrong?

    Applicant:I was apologising because she’d left the house. I was trying to get her and my daughter back. The only way to get her back was to apologise.

    Respondent:   What did she say?

    Applicant:That we’d had sex. That she didn’t like it. She said I’d raped her, and she was going to the police. We were in a toxic relationship. We didn’t want to be together but there was something vile underlying the relationship. We both ignored the IVO.

    Respondent:   Something vile, was that introducing her to ‘ice’?

    Applicant:A lot more from my childhood I had brought in – what was vile and toxic and violent. I was running from the police.

    Respondent:   You hit Ms EC with the back of your hand, lifted her off the ground, threw her on the ground and slammed her head onto the floor.

    Applicant:She told me not to talk to her child. I didn’t hit her. I did wrestle her to the ground.

    Respondent:   Ms EC told you not to hit her in front of the children?

    Applicant:Yes.

    Respondent:   The Judge said you slammed her head onto the floor.

    Applicant:That didn’t happen. I said, if you are going to yell, I am going to hit you with a belt.

    Respondent:   You hit her and held her captive for two hours. Did that happen?

    Applicant:I didn’t hold her hostage. I avoided her from getting out and alerting the neighbours.

    Tribunal:What do you mean by the term “avoided” her?

    Applicant:I locked the door.

    Tribunal:So you did hold her hostage.

    Applicant:Yes. I never laid a hand on her.

29. Mr Eteuati asked the Applicant whether he threatened to kill Ms EC. He responded, “Yes. On the spur of the moment. I didn’t want the neighbours to be alerted. It wasn’t in my nature. I just didn’t want to go to gaol. I was making weightless comments.”

30. The Applicant later in the hearing was asked why he pleaded guilty to rape and beating Ms EC if he now says it was not true. He responded, “I just didn’t want to bring everyone to Court. I was understanding of the continuous trauma of bringing them back and forth I know there was an underlying trauma.”

31. The Tribunal pressed the Applicant on why he pleaded guilty. He replied, “I was already in prison. I wanted to start the journey to rehabilitation. After ten months, I knew it was the best place for me to be.”

32. NTJM was then asked if Ms EC was a liar. He said he had never said that: “I can only tell you what I know. I take ownership of what I am accused. I am not lying to you.”

33. The Tribunal has set out these exchanges in the hearing in detail because it has very significant concerns about the lack of candour of the Applicant, his inconsistencies in evidence and his, now, repudiation of facts found by the Court that he agreed to by pleading guilty. The Tribunal notes that a plea of guilty, if entered properly, means that the person accepts all the elements of the offence. As the High Court stated in Maxwell v The Queen (1996) 184 CLR 501, at [19]:

    An accused is entitled to plead guilty to an offence to which he is charged, and if he does so, the plea will constitute an admission of all the essential elements of the offence.

34. While the Tribunal may accept minor discrepancies in terms of a sequence of events some years before, it cannot accept NTJM completely disowning conduct that the Court found was the basis of offences for which he pleaded guilty. He stated that he ‘takes ownership’ of what he was accused of; but he certainly does not seem to accept the offending of which he was convicted on his own guilty . His current attitude is significantly undermining of any conclusion that he is genuinely remorseful for his past offending conduct.

35. Added to this has been the conduct of the Applicant in both prison and detention. In positive evidence, he has completed a large number of drug and alcohol and relapse prevention courses (GD, pp 110-113); several vocational courses (examples at GD, pp 114-125) and Caraniche courses designed to improve his understanding of managing stress and the link between drug use and offending, designed to reduce the risk of re-offending (GD, pp 127-128).

36. However, NTJM has not been a model prisoner. On three occasions he has assaulted fellow prisoners, one of them seriously, who required hospitalisation. He has also been involved in other disciplinary misconduct in both prison and immigration detention, most recently this year being discovered with a ‘shiv’ in his detention centre room, which he denied in the hearing was his.

37. Marrying the professional psychological assessments before it with the inconsistent and, frankly, somewhat erratic responses to questions in his oral evidence, the Tribunal has concluded that there is a moderate to high risk of the Applicant re-offending in a violent manner and in terms of a crime against an intimate partner, and at least a moderate risk of him re-offending in a general sense.

38. The two parts of this primary consideration therefore combine as follows. His offending is objectively very serious, and the risk of repeating it is real and significant. This consideration therefore weighs very heavily against revoking the mandatory cancellation of the visa.

    Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)

39. The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.

40. NTJM has been convicted of several offences that constitute family violence. This conduct satisfies paragraph 8.2(2)(a) of the Direction. It is not therefore necessary to consider paragraph 8.2.(2)(b). His conduct includes repeated breaches of orders designed to protect intimate partners and children, and significant physical violence against Ms EC, including assault and rape.

41. The Direction requires the Tribunal to consider the seriousness of the family violence engaged in by the Applicant. The Tribunal finds that it was relatively frequent and there was a trend of increased seriousness, from breaching no-contact orders up to significant physical assault and rape against an intimate partner.

42. The Direction also requires the Tribunal to consider rehabilitation, including whether the Applicant accepts responsibility for his family violence-related conduct, and the extent of his understanding of the impact of behaviour on those abused and witnesses of that abuse, including children. The Tribunal accepts that NTJM has undertaken some rehabilitative courses and has expressed sentiments to psychologists consistent with some understanding of the impact on his victims and showing remorse. However, as an example of evidence that he still seems to lack an appreciation of the impact of his past conduct, the Applicant told the Tribunal he did not see the children in the house when he visited Ms FW, but ‘believed they were there.’ Ms FW in her evidence said they were in the house, and ‘witnessed everything. They could hear him on the roof.’ While it may be true that he did not see the children that day, NTJM must have known that young children in such a situation would be very frightened to have someone aggressively throwing items at windows, banging on the doors, yelling abuse at their mother, and then trying to enter the house through the roof.

43. NTJM’s cavilling over the details of his admitted offending against Ms EC, some of which was in front of her children, also illustrates to the Tribunal one of two things: a lack of understanding of the impact of his family violence conduct, or a deliberate attempt in this hearing to minimise or dilute it.

44. It is not necessary to repeat here all the ingredients set out above in these reasons in regard to the protection of the Australian community that satisfy a finding under this part of the Direction that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.

    Primary consideration: the strength, nature and duration of ties to Australia (paragraph 8.3)

45. The Direction requires that decision-makers must consider any impact of a decision relating to a non-citizen’s visa on the person’s family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely. The most recent Direction has elevated this consideration to the status of a primary consideration.

46. The Applicant came to Australia in 2004 when he was a young adult. He had completed high school in Fiji and the papers show he then enrolled in bible college for two years after leaving school.

47. In this country, the Applicant established a good employment record. He undertook a plumbing apprenticeship which he successfully completed, and maintained gainful employment as a sub-contractor up until the time he was taken into custody. It was not contested by the Respondent that he attained skills and was successfully employed.

48. He has played rugby in Australia and has a circle of friends. Mr RE and Mrs PE both gave evidence at the hearing. They came to know NTJM after visiting another prisoner and learning that no one visited him. They asked to be put on his list of visitors and then regularly visited him both in prison and detention over the ensuing six years.

49. The Tribunal was impressed with the obvious genuineness of both Mr RE and Mrs PE. They were aware of NTJM’s offending and were of the view that he has made significant progress in his rehabilitation. They operate a large bed and breakfast concern in country Victoria and Mr RE said they were willing to offer the Applicant employment as a general handyman, if his visa was restored. Their business has a café attached and they envisaged that NTJM could also be a cook, him having acquired those skills in prison.

1. The Applicant also has other links with Australia. His two oldest children are now aged 21 and 18. Ms FW gave evidence that they did not provide statements for this hearing because they were uncomfortable about the prospect of giving evidence. She said that they were now adults and were open to the opportunity of re-establishing a relationship with their father. Ms FW said they had maintained links with the Fijian side of the family and have returned more than once to visit them. The Applicant’s son will shortly travel to Fiji to mark his 21st birthday with his extended Fijian relatives and grandmother (his paternal grandfather having died). For her part, Ms FW said she would not have maintained any relationship with NTJM but for the fact that they have two children together.

2. Ms KW gave evidence. The Applicant described her as his ‘intimate partner.’ The Tribunal notes that Ms KW has known NTJM for a long period, as she was previously married to a friend of his.

3. Ms KW said she first met NTJM in 2013 when he was in a relationship with Ms EC. She said she saw him periodically at various church and family gatherings as she is related to two of the Applicant’s aunts. She estimated at that time she used to see the Applicant socially “at least once a month.”

4. Ms KW said the Applicant contacted her around May 2023. She was asked about the nature of the relationship now. She responded, “It is a committed relationship. It has its constraints. We are working within the constraints, and building a strong foundation for a relationship.”

5. Ms KW was asked how the relationship came about. She replied, “It naturally evolved. We’ve known each other for around 15 years. It evolved [to the point that] we both acknowledged that we didn’t want to get involved with anyone else, and give this a shot.”

6. In response to the Respondent’s lawyer, Ms KW said her, and the Applicant’s relationship commenced in July 2023. She said she never for a moment thought it was not a genuine relationship. Ms KW has two sons who are aged 11 and 13.  She said NTJM had spoken to both of them on the phone but had not met them.

7. Ms KW said she was aware of NTJM’s criminal history including sexual offences against a 14-year-old. She said she had no concerns, “[a]t the time, NTJM was under the influence and a broken man. I am aware of the intense therapy he has had. He is a rehabilitated man.” Ms KW said she was aware that NTJM had beaten and raped Ms EC.

8. When asked whether she was aware of a serious violent crime of which the Applicant was convicted in 2020, Ms KW said, “I don’t know a lot of detail.”  When asked directly by the Tribunal what she did know, Ms KW said, “I know nothing about it.”  Ms KW said she was aware that “something happened in gaol” but that it was four years ago. When asked whether she was aware NTJM was found with a shiv in his room, she said she was not aware of that.

9. Ms KW said she did not have concerns for herself or her children if the Applicant were allowed to remain in Australia. She said, “I’ve seen the Applicant at his worse with coping mechanisms. He turned to drugs and alcohol. I have spent more than a year talking to him. I believe he can use tools, now, and I am confident he can use them in the community.”

10. Ms KW said she would continue the relationship if NTJM remained in Australia. She said he would not initially move in with her: “We would like to take this slowly.” The Tribunal asked if she was aware the Applicant was on the sex offenders register for life and this may affect his ability – at least initially – to live in a house with children, and Ms KW said she was.

11. If NTJM is not restored his visa, Ms KW said it would be “devastating for me and the kids. I don’t have the means to travel to Fiji. We will try and make it work long distance.”

12. The Tribunal noted that in her statement, Ms KW had described NTJM as potentially filling an avuncular, not a fatherly, role in relation to her sons. She responded: “I have been very measured about this. I have not told the boys we are in a relationship. That’s between me and NTJM.”

13. Ms KW said she had visited the Applicant four times in detention. She said she had introduced NTJM to her sons as a family friend, and would maintain that until he is physically present.

14. The Tribunal is loath to criticise NTJM’s characterisation of his relationship with Ms KW as an ‘intimate’ one, in that such a description is to some extent in the eye of the beholder. However, the facts are that they have not lived together and their contact since resuming their friendship has been conditioned: the Applicant is in detention and Ms KW is in the community, albeit speaking to him regularly and visiting four times since August 2023.

15. The Tribunal cannot, however, square Ms KW’s assertion that her sons would be “devastated” if the Applicant were deported, given her other evidence that they know him only as a family friend. The Tribunal finds some of the aspects of Ms KW’s evidence and statements would lend support to a conclusion that she is actually offering general support for NTJM to stay in Australia, but not that there is a significant relationship – at least not yet. If there is a relationship developing, the Tribunal finds that it is nascent. The Tribunal nonetheless accepts that Ms KW is genuine in her wish that NTJM has his visa restored.

16. Overall, the Tribunal finds that this primary consideration weighs slightly in favour of revoking the mandatory cancellation of the visa for two reasons. They are that if NTJM was repatriated to Fiji, any rebuilding of his relationship with his adult children would be hampered, as would any embryonic relationship with Ms KW.

    Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)

17. The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 years at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.

18. The Applicant has one minor child with Ms EC. She is now aged 10. In his oral evidence, NTJM said his last contact with Ms EC was in 2020 “after she moved to Queensland. During the epidemic I could only see my daughter through zoom.” He agreed that there was an IVO in place for Ms EC’s protection and that of her children, including this daughter.

19. The Tribunal is hampered by the dearth of information about the Applicant’s relationship with his younger daughter. There was no statement from Ms EC or the daughter in the papers. She was only aged 2 when NTJM went into custody. It is reasonable to assume, given his crimes against her mother, that Ms EC would not be likely to support a rekindling of any relationship between her and NTJM and probably between the Applicant and their daughter, but because of the lack of material, the Tribunal makes no firm conclusions about that. The provisions of paragraph 8.4(4)(a) of the Direction are relevant in that there has been a long period of absence and limited meaningful contact with the minor child.

20. The Tribunal therefore makes a determination that it cannot definitively state one way or the other as to whether it would be in the best interests of this minor child for NTJM to remain in Australia. The other children who might peripherally be relevant are Ms KW’s two young sons. But the Applicant does not have a parental-like relationship with them, and, on Ms KW’s own evidence, they have no knowledge of their mother having anything more than a friendly relationship with NTJM. The Tribunal cannot find there would be an impact on their best interests, though repatriation of the Applicant it might well affect their mother.

21. The Tribunal finds that this primary consideration weighs neutrally in this assessment, principally because of the lack of information before it.

    Primary consideration: Expectations of the Australian Community (paragraph 8.5)

22. Paragraphs 8.5(1) and (2) of the Direction state:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    (2)  In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

    …

23. The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.

24. The Australian community’s expectation is taken to be a ‘norm.’ The word ‘norm’ means of a ‘standard’ or ‘pattern or type.’ A superseded version of the Direction contained generally similar wording to paragraph 8.5 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed.’ In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by another evaluative process.

25. The current Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ and acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.

26. The High Court of Australia in Ismail and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 2, recently put this succinctly where the Court stated, at [54], in referring to a previous direction but which is still relevant to contents of this primary consideration in paragraph 8.5(4) of the current Direction:

    Paragraph 8.4(4) is to be understood as directing the decision‑maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)‑(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)‑(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90.

27. In this case, the Tribunal finds that the weight of the deemed expectations of the community would be against granting the visa. He has committed violent crimes and sexual crimes against a child and women. He has persistently breached orders of the Court. He has been violent to strangers both in the community and within a prison environment. He has been a relatively persistent offender.

28. The Tribunal finds that this consideration weighs heavily against revoking the mandatory cancellation of the visa.

    Other consideration: Legal consequences of the decision (paragraph 9.1)

29. The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see s 198 of the Act), noting that s 197C(1) of the Act provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.

30. In this case, NTJM made submissions that he would be ‘shamed’ if repatriated to Fiji because the nature of his offending would become known through social media. The Tribunal does not consider that these submissions rose to the level that would be relevant to a consideration of whether the Applicant is owed protection. In any event, NTJM explicitly said in his oral evidence that he is aware that he may apply for a protection visa. Mr Eteuati asked if NTJM had applied for a protection visa. The Applicant responded, “No. I don’t know what criteria. I haven’t gone to that stage. I believe there is an option later on.”

31. The Applicant struck the Tribunal as intelligent and articulate during his evidence and is satisfied that he was fully aware of his rights in this area. If he does apply for a protection visa, any claims he might make for treaty-based protection would be able to be properly considered then.

32. The Tribunal does note Ms FW’s evidence that she was aware, having been to visit them in Fiji, that NTJM’s close family were well aware of the details of his offending but nonetheless she believed they would be supportive to him, were he to be repatriated.

33. The Tribunal finds that this consideration weighs neutrally in this assessment.

    Other consideration: Extent of impediments if removed (paragraph 9.2)

34. The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to the country of reference, in this case Fiji, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in the country of reference.

35. The Applicant was born and educated in Fiji and emigrated to Australia as a young adult, aged 20. In response to direct questions from the Tribunal, he said his physical health is good, although he has had a back operation after an injury playing rugby in prison and while it is healing, he remains on painkillers in connexion with that. He says he has been drug-free in prison and has not drunk alcohol. The Tribunal notes that urinalysis reports before it supports his contentions.

36. Although the Applicant gave evidence that he did not think his family would be supportive, this was at odds with his earlier evidence that he remains close with his mother and brothers and nieces and nephews. It is also at odds with Ms KW’s independent evidence that she considered NTJM’s family would be supportive of him, were he to be returned to Fiji. The Tribunal is unaware of any particular cultural or language barriers NTJM would face if returned. The Tribunal accepts NTJM’s evidence that he would be ashamed if people learnt of the details of his offending history in Australia.

37. In terms of economic support, the Tribunal notes that the Applicant has in Australia undertaken an apprenticeship and qualified as a plumber and, while it accepts that his trade registration has lapsed because of the length of time he has been in prison, there was no particular evidence before it that the skills he has attained would not be transferable to Fiji. The Applicant himself said he did not know whether his qualifications would be recognised in Fiji. Nevertheless, he has had an objectively good employment history in Australia, which should stand him in good stead if returned.

38. The Tribunal considers that NTJM would have familial support, particularly from his brothers, if he were repatriated. This consideration weighs very slightly in favour of the Applicant because of the separation from his three children, who reside in Australia.

    Other consideration: Impact on victims (paragraph 9.3)

39. The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen.

40. There was no evidence before the Tribunal from any victim of the Applicant’s offending other than Ms FW. It is evident that she gave evidence in support of his visa being restored, it would seem not in respect of her desire to have any special relationship with the Applicant, but in order that her son and daughter would not be disadvantaged from rekindling a relationship with their father.

41. The Tribunal finds this consideration weighs neutrally.

    Other consideration: Impact on Australian business interests (para 9.4)

42. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.

43. As mentioned above, NTJM was a qualified plumber. His authorisation to work in that trade has lapsed and, in response to a direct question from the Tribunal, he agreed he would probably have to do a refresher course if he were allowed to remain in Australia and wanted to return to that line of work.

44. However, in the context of this part of the Direction and how it is couched, the Tribunal does not consider that the Applicant’s past employment history rises to the level that is contemplated in terms of affecting a major project or service. Therefore, the Tribunal finds this consideration weighs neutrally.

    SUMMATION

45. The Tribunal has found that the primary consideration of the protection of the Australian community from criminal or other serious conduct weighs heavily against revoking the mandatory cancellation of NTJM’s visa. The primary consideration relating to family violence conduct also weighs heavily against the Applicant. The primary consideration relating to his ties with Australia weighs slightly in favour of NTJM. The primary consideration relating to the best interests of relevant minor children in Australia weighs neutrally, principally because of the lack of independent evidence before the Tribunal. The primary consideration relating to the expectations of the Australian community weighs against the restoration of the visa.

46. In respect of the other considerations, the Tribunal has made the following findings. The other consideration relating to the extent of impediments if removed from Australia weighs slightly in favour of NTJM. The other consideration relating to the legal consequences of the decision; the other consideration relating to impact on victims; and the other consideration relating to impact on Australian business interests all weigh neutrally.

47. The Tribunal must consider each of the considerations in the Direction individually, and also cumulatively. The Applicant has committed very serious offending, he has been found to have a moderate to high risk of re-offending and, on the Tribunal’s assessment, his remorse is significantly affected by a lack of understanding of what he did, even many years later, and his repudiation of findings of the Court about some offences of which he pleaded guilty at the time. All of these are powerful factors which militate against the revocation of the mandatory cancellation of the visa.

48. The conclusion of the Tribunal is that the discretion provided in s 501CA(4)(b)(ii) of the Act is not enlivened. Therefore there is not ‘another reason’ to revoke the mandatory cancellation of the visa, and the consequence is that the decision NTJM has brought to the Tribunal for review stands.

    DECISION

49. The decision of 28 February 2024 not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.

I certify that the preceding 143 (One hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...............................[sgn].........................................

Associate

Dated: 21 May 2024

Dates of hearing:	13 and 14 May 2024
Applicant:	Self-represented
Advocate for the Respondent:	Mr Tigiilagi Eteuati
Solicitors for the Respondent:	The Australian Government Solicitor

ANNEXURE

Schedule of exhibits

Personal statement from NTJM  Exhibit A1

Letter from Mr RE, dated 8 April 2024  Exhibit A2

Letter from Mrs PE, dated April 2024  Exhibit A3

Four IHMS medical records (various dates)  Exhibit A4

Statement of Ms KW, dated April 2024  Exhibit A5

Volume of ‘G’ documents lodged 14 March 2024                 Exhibit R1

Respondent’s Tender Bundle (TB), 29 April 2024                Exhibit R2