Khoshaba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Khoshaba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 432 (6 March 2020)
Division:GENERAL DIVISION
File Number: 2019/8495
Re:Rami Khoshaba
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:6 March 2020
Place:Melbourne

The Tribunal affirms the decision under review.
............... ....[sgd].....................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – extensive criminal history – convictions for multiple violent offences – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Do and Minister for Immigration and Border Protection [2016] AATA 390
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic
6 March 2020
INTRODUCTION

The applicant, Mr Rami Khoshaba, seeks review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the respondent”), made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).[1]
The hearing was held in Melbourne on 27 February 2020. Mr Khoshaba was represented by Mr Angel Aleksov of counsel, instructed by WLW Migration Lawyers. The Minister was represented by Mr Ned Rogers of the Australian Government Solicitor.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
The factual background is as follows:
(a)The applicant is a 28 year old citizen of New Zealand. He was born in Iraq, lived in Jordan, and migrated to New Zealand with his family in 1997;[2]
(b)The applicant first arrived in Australia in 2005 when he was 13 years of age.[3] He lived in Canada between November 2010 and December 2012, before resuming his residence in Australia;
(c)The applicant is the biological father of a four-year old daughter[4] who is an Australian citizen and lives with his former partner;[5]
(d)On 4 July 2016 the applicant was convicted of ‘Armed robbery’ and ‘Attempted armed robbery’;[6]
(e)On 18 May 2017 the applicant’s visa was mandatorily cancelled on character grounds by a delegate of the then Minister for Immigration and Border Protection;[7]
(f)The applicant was invited to make representations to have the cancellation decision revoked, and did so on 29 May 2017 within the period and in the manner specified under the Act;[8]
(g)On 17 December 2019, after considering the applicant’s revocation request, a delegate of the Minister decided not to revoke the visa cancellation;[9] and
(h)On 20 December 2019 the applicant asked the Tribunal to review the non-revocation decision.[10]
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 12 March 2020.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that the Tribunal must comply with the Direction.[11]
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA.
The principles referred to in the Preamble of the Direction are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction must be applied to determine whether to revoke a mandatory visa cancellation:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations must be taken into account, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another [2016] 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES MR KHOSHABA PASS THE CHARACTER TEST?
On 4 July 2016 Mr Khoshaba received sentences totalling five years imprisonment. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of Mr Khoshaba’s visa should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE BEFORE THE TRIBUNAL
“G-documents” numbering 1020 pages were taken into evidence.[12] Other documents taken into evidence were:
(a)The applicant’s witness statement dated 24 February 2020;[13]
(b)A statement from the applicant’s father dated 24 February 2020;[14]
(c)A statement from the applicant’s mother dated 24 February 2020;[15]
(d)A statement from the applicant’s sister dated 24 February 2020;[16]
(e)A statement from a parish priest of the Holy Apostolic Catholic Assyrian Church of the East dated 4 February 2020;[17]
(f)Certificate of completion for the ‘High Intensity Violence Intervention Program’;[18]
(g)Certificate of completion for the ‘44 Hour Semi-Intensive (closed) “Breaking the Ice” Program (level IV)’.[19]
The Tribunal heard oral evidence from Mr Khoshaba, his parents, and sister.
National Criminal History
Mr Khoshaba does not dispute the information in his National Criminal History dated
15 November 2018,[20] which the Tribunal accepts is an accurate record of his convictions.
Sentencing Remarks
The Tribunal notes the sentencing remarks in evidence from the County Court of Victoria dated 4 July 2016 (“2016 sentencing remarks”),[21] which are discussed later in these reasons.
Medical Evidence
In his May 2017 Personal Circumstances Form (“2017 PCF”)[22], Mr Khoshaba responded ‘Yes’ to the question ‘Do you have any diagnosed medical or psychological conditions?’. In the space provided he wrote: ‘Groin hernia (awaiting operation)’. During the hearing Mr Khoshaba confirmed this condition had been resolved through surgery and he has no currently diagnosed medical or psychological conditions.
Applicant’s evidence
Mr Khoshaba adopted his statement dated 24 February 2020.[23] The Tribunal has also considered his earlier written evidence.[24] Mr Khoshaba’s submissions focussed on the interests of his four-year old daughter and the bond he shares with his parents and sister in particular. He referred to prison as a cathartic experience, during which he was no longer ‘impaired in decision-making’ as a result of illicit drugs. The birth of his daughter while he was imprisoned, and the rehabilitative courses he completed, had served to change his perspectives and past ‘pattern of behaviour.’ Mr Khoshaba’s evidence can be summarised as follows:
(a)His family migrated from Jordan to New Zealand when he was approximately five years of age. He was bullied at school in New Zealand, claiming there were ‘a lot of islanders’ who were quite violent and he did not fit in;[25]
(b)He was unsettled as a result of moving from country to country and house to house, causing feelings of isolation ‘and wanting to fit in’. Mr Khoshaba claimed his father ‘was not particularly present at critical moments’ of his life;[26]
(c)While attending school in Australia Mr Khoshaba said he was influenced by a ‘bad crowd’ that took him down the ‘wrong path.’[27] His drug use started in 2009. He initially used marijuana, then ecstasy, methylamphetamine, prescription medication like Xanax, and alcohol. He also developed an addiction to gambling. Mr Khoshaba said he started a university course but left before completing the first semester due to his ‘ex-friend’s bad influence’;
(d)Mr Khoshaba agreed the Court dealt with his early offending leniently, but because of his addictions, he did not appreciate these were opportunities to change his ways: ‘At the time I wasn’t thinking of consequences’;
(e)In late 2010 his family moved to Canada where his father had family. Mr Khoshaba said this was partly to separate him from negative influences in Australia. He described life in Canada from the ages of 18 to 21 as a positive time in his life, which included about six months work for a family member in the construction industry. He abstained from drugs and avoided negative influences;
(f)Mr Khoshaba agreed he got into trouble on return to Australia. He lived with his mother and sister and tried to do the ‘right thing’, but after renewing acquaintances with negative peers, relapsed into drug use. His methylamphetamine use became a daily habit, and he committed crimes to pay for drugs and gambling;
(g)Mr Khoshaba said he started a relationship at the age of 22, which produced a daughter who was born approximately two months after he was taken into custody for armed robbery. That was his first custodial sentence. His former partner stood by him for most of his prison sentence and looked after their child with help from her mother and sister. Mr Khoshaba’s relationship with his daughter has been through telephone calls and prison visits. He said fatherhood had changed him in ‘a positive and significant way.’[28] Mr Khoshaba said he and his former partner ‘broke apart’ in approximately 2017 and are no longer in a defacto relationship. She and their child last visited him six or seven months ago. His former partner has not provided a statement for the current hearing and they have not been in contact for approximately three months. Mr Khoshaba explained his daughter was also ‘very disappointed’ because he’s ‘been away all this time’. He said: ‘She’s a child and is sick of video calls and controlled environments’. His former partner was also ‘sick of bringing the child in…she’s over it…she’s done everything by herself, is working, and is angry with me.’ Mr Khoshaba claimed his former partner nevertheless wanted him to be a part of their daughter’s life;
(h)Consistent with the 2016 sentencing remarks, Mr Khoshaba agreed his criminal record was serious and linked to drug use. He accepted the armed robbery offences were an ‘escalation’ and considered imprisonment a ‘good thing’, which allowed him to ‘start a new chapter.’[29] He ‘spoke to someone’ in prison about his gambling addiction and believed he had ‘confronted it.’ When asked who that person was, he could not recall. Mr Khoshaba said he had last gambled the night before being locked up for armed robbery. He claimed that he could have gambled in prison and immigration detention, but had not done so. When asked to explain, he said there was ‘footy tipping and poker’ in prison, but in immigration detention you could ‘gamble on smartphones.’ Mr Khoshaba said he was advised to seek further gambling help prior to release so it was fresh in his mind. He said he would also put his name on a ‘self-exclusion list’ at gambling venues and seek further counselling from ‘Drugs Anonymous’;
(i)Mr Khoshaba said he had not sought help in the past, believing he ‘could handle issues in his life.’ He has responsibilities now and understands the importance of asking for help. When asked about strategies to stay away from drugs, Mr Khoshaba referred to help from his Church, his family, and through counselling. He considered it important as a father to make up for lost time with his daughter and could not afford to be near her if his ‘thinking was impaired’;
(j)Mr Khoshaba expressed remorse and shame for his offending. While imprisoned he reflected on the consequences of his conduct and the people he let down. That included his family and the victims of his offending, who he thinks about ‘all the time.’ Mr Khoshaba said he has ‘made changes’ and is ‘now ready to move into the next phase of [his] life.’[30] This included ceasing relationships with negative peers. Drug rehabilitation and self-development programs had helped him change his way of thinking. He no longer has cravings for drugs like ice, which he claimed was ‘probably easier’ to access in prison and immigration detention than in the community. He had last used ice in 2016;
(k)In relation to incidents of misconduct recorded by prison authorities, Mr Khoshaba said he experienced ‘a few hiccups’ in prison. He described it as a ‘very small community and sometimes you’re just dragged into things.’ Mr Khoshaba expressed regret for these incidents, claiming to have a ‘good clear record in prison since 2016 as I have come off my drug habit my behaviour has improved.’[31] He agreed there were prison rules against the use of drugs, unannounced drug testing, and punishments for those who used illicit substances. In terms of specific incidents of misconduct:
(i)Mr Khoshaba agreed he tested positive to methamphetamine on one occasion in 2016. On another occasion he admitted guilt at a prison disciplinary hearing to possession of a capsule and part of a pill, which he said were Avanza and Seroquel, but were not prescribed to him;
(ii)When asked about a prison record referring to his unsatisfactory attitude to work and having said to a prison officer ‘Fuck work’ which led to his dismissal[32], Mr Khoshaba said he could not recall. When asked if he undertook work in prison, he replied: ‘Not all the time, but I did.’ When asked if he had an unsatisfactory attitude to work, Mr Khoshaba responded: ‘Depends on what location and what job.’ Mr Khoshaba explained that he ‘started having a bit of attitude’ because he wanted to work in a prison industry ‘with people I know’;
(iii)Mr Khoshaba agreed that in 2018 he had called a prison officer a ‘fucking dog’ and threw chairs at a window and towards staff, breaking one chair and narrowly missing a staff member.[33] He agreed this was an act of aggression some years into his sentence, resulting in prison authorities giving him a ‘maximum security rating’.[34] Mr Khoshaba agreed he was not taking drugs at the time of this incident. When asked to elaborate on the reasons for his conduct, he explained: ‘I was in a bad place, frustrated, and had no money to keep talking to my daughter on the phone’. When asked what strategy he would employ to prevent a repeat of this aggression and frustration, Mr Khoshaba responded: ‘Don’t blow off – just sit in a room and calm myself down, distract myself, talk to someone, walk away, take long breaths and think about the consequences’. Mr Khoshaba claimed: ‘Now that I’m older I don’t get angry as much’; and
(iv)Mr Khoshaba recalled an incident where a fight broke out in his room, but in which he was not involved, causing him to be locked down. On a subsequent occasion he held a door shut after a fight broke out in another cell.[35] He initially denied holding the door closed when questioned by prison authorities, but subsequently admitted doing so.[36] When it was put to him he had lied to prison authorities, Mr Khoshaba responded: ‘not lied, I tried to sugar coat it. I didn’t think holding the door was an incident.’ Mr Khoshaba explained his reason for initially denying involvement was because he wanted to keep his single cell and billet job, which he had worked hard to get.
(l)When asked about any medical or other conditions, Mr Khoshaba confirmed he had an operation in late 2018 to resolve his herniated groin and has no other diagnosed conditions. He wanted to seek work upon release and there was no medical reason preventing that;
(m)Mr Khoshaba said his closest ties were in Australia, particularly to his parents, sister and child. He and his family are members of a Church and he prays daily. The Church has offered to help him if released. He also intends to continue drug counselling, get help from a forensic psychologist, start a new food business with his family, complete his university studies, and be a ‘wonderful father’.[37] He plans to live with his mother and claims his partner ‘really wants [him] to be a part of’ their daughter’s life;
(n)Mr Khoshaba said he is ‘not a risk to the Australian community’ because he is older and had ‘moved past the period of his life where drugs took hold.’[38] He wants a ‘second chance.’ While acknowledging ‘terrible mistakes’, he claims to be ‘rehabilitated…[and a]…different person’, with ‘wonderful support’ from his family, ‘accommodation and employment…lined up,’ and is motivated to be a ‘role model’ for his daughter[39];
(o)Mr Khoshaba said he does not ‘have any ties outside Australia’ and would feel lost without his family’s support. He would be unable to find work in New Zealand because he has no friends or contacts, and would struggle with things like accommodation and providing for his daily requirements.
Evidence of Mr Khoshaba’s father

The witness adopted his latest statement dated 24 February 2020 as true and correct.[40] The Tribunal also considered an earlier unsigned and undated letter.[41] A summary of the witness’s evidence follows:
(a)The witness reflected upon his early life in Iraq, conscription in the Army, and the disruption caused by his family’s frequent moves. He regretted not being there for Mr Khoshaba from an early age due to work pressures and felt some responsibility for his conduct: ‘There was a gap between me and my son. I wasn’t there to guide him and be a role model for him…I was busy building our family life…I was working, studying. I didn’t have time’;
(b)The witness said the family moved to Canada in 2010, in part to get their son away from bad influences. While living in Canada, his son ‘enjoyed every minute and didn’t do anything wrong’;
(c)The witness said his son continued to make mistakes on return to Australia but was remorseful, had matured during imprisonment, and ‘deserves a second chance to be a father for his daughter’;[42]
(d)The witness said his son would not reoffend. The family planned to buy a restaurant that Mr Khoshaba could operate as manager;
(e)The witness has lived and worked interstate for some years and would continue to live separately from the family. He would come home during holidays and on long service leave;
(f)If Mr Khoshaba is repatriated, the witness said because of his job and life in Australia, he could not ‘drop everything and move to New Zealand’.[43] He was concerned his son could not cope. When asked if he would financially support his son if repatriated, the witness responded: ‘I will support him financially…I will support him to the last day of my life’.
Evidence of Mr Khoshaba’s mother
The witness adopted her latest statement as true and correct.[44] The Tribunal has also considered her earlier evidence comprising a signed letter dated 29 April 2019,[45] an undated and unsigned letter,[46] and an email dated 13 August 2019.[47] A summary of the witness’s evidence follows:
(a)The witness reflected upon her difficult early life in Iraq, marriage in 1978, completion of university studies, and birth of her two children some three years apart. The family migrated to New Zealand with the support of the witness’s brother, who lived there;
(b)In 2005 the family decided to follow the witness’s brother to Australia. Mr Khoshaba subsequently developed bad associations and got into trouble. The family relocated to Canada, in part, to give him a fresh start, but returned due to financial pressures. While in Canada, Mr Khoshaba stayed out of trouble;
(c)On return to Australia, the witness said Mr Khoshaba again became involved with negative peers and reoffended. She attributed this in part to his inability to ‘become a citizen like a normal person,’ which meant he ‘had no security in his life.’ On one occasion police raided their home and handcuffed her and her husband. She considered kicking Mr Khoshaba out but decided not to,[48] fearing ‘he’d go with bad kids’. The witness said the family neglected Mr Khoshaba because they were all working so hard. She did not know why Mr Khoshaba did not take previous police and judicial interventions seriously;
(d)The witness said the relationship between Mr Khoshaba and his former partner was adversely affected by drugs. She claimed both took drugs and the child’s mother eventually moved in with their family. She knew Mr Khoshaba was taking drugs ‘at the end’, but had never seen him affected by drugs while living in her home. When asked if she knew whether her son had used drugs in prison, the witness responded: ‘I’m not sure.’ When asked about her son’s relationship status with his former partner, the witness said they were ‘absolutely’ still in a relationship, but in recent times his former partner had ‘changed – she gave up.’ When asked about the last time Mr Khoshaba’s daughter had been brought to visit him, the witness responded: ‘I don’t know’;
(e)The witness wants Mr Khoshaba to be given a second chance and will make him her primary focus upon release. He would not have to pay for rent, food or other bills, just focus on work and study. This had also previously been the situation when Mr Khoshaba was living at home, when they also gave him a financial allowance. The family is currently in an even ‘better situation’ to support him. They would encourage him to resume study, attend Church regularly, access counselling, and run a business together. The witness claimed members of their congregation had also ‘offered to find a job for Rami’. Finally, the witness plans to have their granddaughter stay in their home to enable Mr Khoshaba to develop a closer relationship with her. This would include the child living with them from Friday afternoons through the weekend. When asked if the child’s mother agreed to these access and custody arrangements, the witness said she has a ‘difficult’ relationship with Mr Khoshaba’s former partner, which ‘is not that good’, and impacts her ability to see her granddaughter. The proposed weekend access was the witness’s ‘plan’, but the child’s mother had not agreed and told the family they would have to go to court for such access; and
(f)If Mr Khoshaba is repatriated, the witness said he would have to ‘spend his life working only to pay the rent, and bills and other life expenses,’ but ‘we will not be there.’ She and her husband are now permanent residents and their daughter is likely to be granted permanent residency in about a year. The witness is worried Mr Khoshaba may turn to drugs and alcohol if returned to New Zealand. When asked if there is an Assyrian Church community in New Zealand who might support Mr Khoshaba, the witness said she did not know.
Evidence of Mr Khoshaba’s sister
The witness adopted her statement as true and correct.[49] The Tribunal has also considered her earlier statement.[50] A summary of the witness’s evidence follows:
(a)The witness reflected on the family’s early life in Iraq, caring for Mr Khoshaba as a child because her parents worked. The family migrated to New Zealand and stayed with an aunt and uncle while her parents began new careers. Her father became a teacher and her mother started a hair salon. Both children were closer to their mother than their father;
(b)The witness recalled there was a fight most days at their high school in New Zealand, which she found ‘scary’. Her brother was bullied and she tried to keep them out of trouble by immediately going home after each school day;
(c)After moving to Australia, the witness was in Year 11 while Mr Khoshaba was in Year 8. Their cousins attended the same school and Mr Khoshaba ‘made friends quickly with all the Assyrian’s and middle eastern students…Rami was so happy there were people like us around. It was really nice compared to…New Zealand where we felt like outsiders.’[51] The witness said she and her brother drifted apart during this time because he was not the best student and changed schools. He remained friends with negative peers and their ‘boisterous activity slowly turned into testing the law’;[52]
(d)The witness said their family relocated to Canada in part to give her brother a ‘fresh start.’ Her mother and brother relocated first, followed by the witness and her father. The plan was for Mr Khoshaba to undertake an information technology course in Canada. He did not undertake study and instead worked ‘with a family friend in construction.’[53] She said the business ‘slowed down because of snow and weather’ and her brother ‘needed to find other work.’ The family lived for a time on the witness’s salary, because her father could not secure registration as a teacher and the family experienced financial stress. Her father secured employment back in Australia and returned in 2011. The rest of the family followed in 2012;
(e)The witness said Mr Khoshaba renewed his association with negative peers on return to Australia. His partner moved in with her family because of the negative effects of Mr Khoshaba’s drug-taking and rebellious attitude. The witness stated the latter arose because Mr Khoshaba ‘was not an Australian permanent resident or citizen and was not entitled to study allowance and other money from Centrelink like his friends’.[54] Unlike his friends who received such benefits, he objected to working and studying part time. The witness described Mr Khoshaba’s relationship with his partner as ‘not good.’ There was also friction within the family because they ‘were all living under the same roof and this was really difficult’;[55]
(f)The witness was initially angry after learning of Mr Khoshaba’s armed robbery offences, but continued to support him. She felt guilty about not focussing more on him while they were growing up. When asked if she knew her brother was taking drugs, the witness said she ‘knew without knowing.’ When they returned from Canada she noticed his car ‘smelled bad’ and ‘he didn’t seem to be doing anything – just sleeping in.’ She also noticed he would ‘get agitated a little bit’, which was unusual. When asked if she was aware Mr Khoshaba had drug incidents in prison, the witness responded: ‘No’;
(g)The witness and her family continued to support Mr Khoshaba’s daughter, who was born after his imprisonment. She said the child’s mother was supportive ‘until recently’,[56] speculating that she was ‘trying to protect her daughter from being upset because…it confuses her why her dad is in prison.’[57] The witness claimed Mr Khoshaba’s former partner was ‘very open to letting him have a continuing relationship’ with their daughter. The witness last spoke to Mr Khoshaba’s former partner in December 2019 and had been told if the family wanted overnight access with the child, they would ‘have to arrange something with the courts’; and
(h)The witness said that the birth of Mr Khoshaba’s daughter and confronting the consequences of his criminal conduct had ‘forced him to mature quickly.’ He now understood the gravity of his actions. The witness said if Mr Khoshaba was returned to New Zealand, she would continue to support him financially. In her written statement, the witness stated she and her mother would relocate to be with him because he could not cope alone. The witness considered this an undesirable outcome because the family had made their life in Australia. The witness considers her brother would confront many problems in New Zealand, including being unable to see his daughter. The witness said that in ‘New Zealand there are even less jobs than here, and lower wages.’[58]
Evidence of a Priest from the Holy Apostolic Catholic Assyrian Church
The Tribunal has considered a witness statement dated 4 February 2020 by a parish priest who knows Mr Khoshaba’s family.[59] The priest stated that Mr Khoshaba’s mother and sister attend mass, but the Church ‘did not know Rami’. The same priest wrote in an earlier letter dated 6 May 2019 that he did not ‘personally know Rami.’[60] The priest was not called to give evidence and could not be cross-examined. The statement is very general and evinces no knowledge of Mr Khoshaba’s offending. It appears to be a response to the representations made to the Bishop and author by Mr Khoshaba’s mother and sister. The author undertakes on behalf of his Church to provide spiritual and other support to Mr Khoshaba to help him become a better Australian citizen.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
Mr Khoshaba’s prior criminal history is summarised in the 2016 sentencing remarks:
You have admitted your prior criminal history. Your court appearances span the period from 26 November 2007 until 23 January 2015…you appeared in court for robbery and armed robbery offences in 2009 on two occasions. On each occasion without conviction you were placed on probation.
As an adult you have appeared before the courts for dishonesty offences, driving offences, drug offences, bail related offending, firearms offences, namely possess ammunition without license, carry or use a loaded firearm in a populace place 2013, and possess a prohibited weapon in licensed premises 2015, for which you have received a variety of dispositions, including Community Correction Orders, fines, probation and adjourned undertakings.
Her Honour referred to the armed robbery offences as ‘very serious’ and ‘an escalation’[61] in Mr Khoshaba’s offending. Her Honour distinguished his offending from that of younger co-offenders in justifying a more severe sentence. Mr Khoshaba was found to be ‘the principal offender’ who recruited his co-offenders.[62] Submissions to the contrary were rejected.[63] The court referred to three staff members and a security guard who had been ‘impacted greatly’ by the robberies.[64]
Mr Khoshaba was sentenced to three years imprisonment for armed robbery and two years for attempted armed robbery. One year of the latter conviction was ordered to be served concurrent with the sentence imposed for the former. The resulting total effective sentence was four years with a non-parole period of two years and six months.[65]
Mr Khoshaba does not dispute his offending is serious, particularly for someone of his age.[66] He expresses remorse for his crimes, attributing his conduct variously to drug and gambling addictions, immaturity, not being able to secure permanent residency, and associating with a ‘bad crowd’.[67]
It is submitted by Mr Khoshaba’s legal representative that:[68]
(a)His criminal history involves a number of serious offences;
(b)His offending is of a type consistent with long-term drug addiction and drug-related behaviours, encompassing offences as a juvenile and, since March 2013, over 30 recorded charges relating to approximately seven separate incidents;
(c)Until his most recent sentence he received non-custodial penalties; and
(d)He regrets, admits and is remorseful about his past offending.
The respondent submits that Mr Khoshaba’s offending is ‘undoubtedly serious’, as evidenced by the sentencing remarks, his crimes of violence, the frequency of his offending, and its increasing seriousness.[69]
Tribunal findings: The nature and seriousness of the conduct
The following aspects of cl 13.1.1(1) of the Direction are relevant to the specific circumstances of Mr Khoshaba’s case:
(a)13.1.1(1)(a): Mr Khoshaba’s court appearances span the period from 26 November 2007 until 23 January 2015.[70] He has multiple convictions for offences involving violence and possession of weapons, such as armed robbery, attempted armed robbery, recklessly causing injury to others, and possessing controlled or prohibited weapons without excuse;
(b)13.1.1(1)(c): Mr Khoshaba has been convicted of ‘Assault emergency worker on duty,^’ which is viewed seriously;
(c)13.1.1(1)(d): Imprisonment is the last resort in the Court’s available sentencing options. Prior to 2016, Mr Khoshaba’s offending was dealt with by way of non-custodial sentences. For his most recent offences he was sentenced to five years imprisonment, which is indicative of their seriousness. It is a concerning feature of Mr Khoshaba’s history that he has reoffended while under judicial orders;
(d)13.1.1(1)(e): Mr Khoshaba’s offending reflects a pattern of persistent and increasingly serious conduct over approximately a decade. His most recent crimes represents ‘an escalation’[71];
(e)13.1.1(1)(f): The compounding effect of Mr Khoshaba’s crimes has imposed significant costs and consequences on the Australian community, including on his victims.[72] Costs have also been imposed through the requirement for frequent intervention by the police and courts in particular.
For the reasons outlined above Mr Khoshaba’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 13.1.2 of the Direction states in part:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk Mr Khoshaba poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this task as follows:
..That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”

In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the following passage, at [111], related to unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
The High Court has held that past actions are legitimate predictors of future behaviour.[73] In Minister for Immigration and Citizenship v Obele [2010] FCA 1445 (“Obele”) , Katzmann J reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’
At Mr Khoshaba’s sentencing in 2016, his offending was linked to desperation to fund ‘heavy drug use and problematic gambling’. Her Honour found, however, that this ‘in no way’ excused his offending. Her Honour also held that:
(a)Mr Khoshaba’s plea of guilty following the committal hearing was ‘not at the first opportunity.’ It was nonetheless found to have been entered ‘at an early stage’, had some ‘utilitarian value’, and demonstrated genuine remorse;
(b)A psychologist’s report tendered at the plea hearing:
(i)assessed Mr Khoshaba as having no mental illness and his cognitive functioning was found to be in the low/average range; and
(ii)referred to ‘several current protective factors that may reduce risk of re-offending’, namely a ‘supportive family, stable accommodation, relationship with his partner and newborn child, and motivation to engage in further studies…,’ which Her Honour accepted; and
(c)Mr Khoshaba had remained drug free while in custody, as evidenced by his ‘clear urine screens’ prior to sentencing.
Her Honour stated she was ‘cautiously optimistic’ about Mr Khoshaba’s prospects for rehabilitation, noting that although drug free in a controlled prison environment, ‘the real challenge’ for him was upon his release, when he would be ‘exposed to the same negative peers’ influencing his conduct in the past.
In his 2017 PCF, Mr Khoshaba explained the reasons for his offending in the following terms:
When I became 16 years old, I started feeling unhappy because I wasn’t a permanent resident here, I felt like a stranger between my friends. I talked to my parents about it and they tried but were unsuccessful when they applied. I was upset and I took a bad direction to my life. I started doing drugs and gambling.[74]
In subsequent statements he explained:
I started offending later down the track when I mixed with the wrong crowd in high school because I really wanted to fit in and worried about getting bullied again…[75]
…with the bad crowd I started doing bad things, and I got lost and did not get out until I matured and sadly meant coming to prison so I could get off the ice and the other toxic drugs and stop gambling…[76]
Mr Khoshaba submits in his most recent statement and during his oral evidence that he is not a risk to the community:
I was sentenced as a youth and while in in custody I’ve done every program available to me to address my offending…All my offending was done in my youth grown up and seeked and recived help and address my offending behaviour. I can honestly say I pose no risk of reoffending if I am given a second chance in the community.[77] (Errors in original)
Mr Khoshaba asks for ‘another chance,’ stating that he has ‘very strong family support’ to assist him not to ‘step out of line.’[78]
The Tribunal notes the following evidence regarding vocational and rehabilitative programs completed by Mr Khoshaba since being imprisoned:
(a)‘Follow work procedures to maintain food safety’ in 2016, which is a unit towards a Certificate II in Food Processing;[79]
(b)‘Prepare and serve espresso coffee’ in 2016, which is a unit towards a Certificate II in Kitchen Operations;[80]
(c)‘Maintain hard floor surfaces’, and ‘Participate in workplace safety arrangements’ in 2016, which are units towards a Certificate II in Cleaning Operations;[81]
(d)‘6 Hour Ice Effects Program’ on 25 August 2016;[82]
(e)‘Talking Change Program’ in November 2016;[83]
(f)‘Responsible Service of Alcohol Program’ in January 2017;[84]
(g)‘High Intensity Violence Intervention Program’ between 2 February 2017 and 31 August 2017;[85] and
(h)‘44 Hour Semi-Intensive (closed) “Breaking the Ice” Program (level IV)’ on 9 January 2018.[86]
Mr Khoshaba claims to have completed a Certificate III in IT, Certificate III in Media, and a Certificate II in Furnishing,[87] for which there is no corroborating evidence.
The Tribunal notes that according to a Level of Service Inventory (LSI) risk assessment conducted during Mr Khoshaba’s imprisonment, he was found to be a ‘high risk of reoffending.’[88] Mr Khoshaba also has a number of incident reports relating to misconduct in prison. These include occasions where Mr Khoshaba was reported to have:
(a)‘moved towards…officers in an aggressive manner and was taken to the ground…’[89] (June 2015);
(b)flooded his cell, smashed a toilet bowl and damaged a television (August 2015);[90]
(c)hidden a white capsule, part of a pill, nicotine patches, and a handmade cigarette in his cell (November-December 2015); [91]
(d)returned a positive urine sample for illicit drugs (February 2016); [92]
(e)refused to accompany prison officers to a scheduled court hearing, causing an adjournment (February 2016); [93]
(f)was reprimanded for standing in an out of bounds area and talking to prisoners in another area (September 2017); [94] and
(g)purportedly ‘stood over’ another prisoner for his nicotine replacement therapy (NRT) patch (December 2017). [95]
Other records in evidence during Mr Khoshaba’s imprisonment state:
(a)16/1/2018:[96] ‘Prior to our meet up, I called industry staff to ask if Rami’s employment attendance and attitude have improved. They told me his behaviour has not improved. I relayed this feedback to Rami and asked him what it was going to take to get him to show up and work on a regular basis. Rami replied that he has a hernia and that he can’t do the job he has been assigned. I told him he needs to get a medical certificate saying so, that way we can find appropriate work for him. Rami told me “I never worked on the outside, so why would I start now on the inside?” I said…That attitude is simply unacceptable…Rami informed me he is not interested in doing any education courses, nor is he going to sign up for any… I encouraged him strongly to just have a look through the education courses again, and fill his time positively whilst he watched to see if his move to Ravenhall is going to happen. Rami has been suspected of standing over prisoners for patches, along with his friend [redacted]…’
(b)21/2/2018:[97] ‘Prior to meeting with Rami I spoke to his previous case manager who advised that Rami had a very poor work ethic…Rami does not like his currently job in the bakery (cleaner) and does not go. As part of the challenge to Rami I pointed out that it would be easier to get another job if he had a good reputation and rapport with his existing work peers and supervisors…’
(c)11/04/2018:[98] ‘Today was his first day on the unit was rang several times and he eventually turned up at 10:15 am his excuse was that he was asleep, he was informed his pay will be docked and if he continues not to attend he will be dismissed.
…
Today Rami approached supervisor [redacted] requesting that the radio volume be turned up. After Mr [redacted] explained to Rami that the radio volume could not be adjusted as it was set to a level that catered for everyone Rami stated to Mr [redacted] and myself that he quit…
Rami attended CMRC dismissal today for quitting Number Plates which resulted 5 days no pay, no gym, no recreation.
(d)7/05/2018:[99] ‘Unit was contacted today due to Rami not attending work. PO [redacted] spoke to Rami regarding his absence to which Rami stated “Fuck work”, therefore Rami has been dismissed from metal fabrication due to an unsatisfactory attitude towards work.’
(e)9/05/2018:[100] ‘On 08.05.18, Prisoner attended a dismissal hearing. This is his second time being dismissed. He received 10 days no pay, no gym. Rami was advised that he would be seen in two weeks to discuss a new job placement, he was none too responsive and quite dismissive at the concept of working in prison…’
(f)25/07/2018:[101] ‘Rami has been placed in Richardson Management today due to a Code Blue being called on him for throwing a chair at interview room window and towards staff in the console.’
In an email to immigration authorities dated 3 June 2019, Mr Khoshaba stated that most of the reportable incidents on his corrections file were ‘minor’ and he had been ‘cleared’ of a ‘level one assault.’[102] He described imprisonment as ‘very hard.’ In relation to the positive drug test recorded against him, Mr Khoshaba gave evidence that he ‘had a lot of clean urines.’ He also denied standing over another prisoner for their NRT patch, stating: ‘he only said he was getting stood over because he didn’t want to get into trouble’. In relation two incidents relating to corrections officers, Mr Khoshaba stated: ‘I truly from the bottom of my heart regret, and I have been punished for them.’ Mr Khoshaba expressed regret for the ‘indiscretions’ he committed while imprisoned, which he says resulted from a difficult ‘adjustment period.’[103] In his oral evidence he said: ‘I was in a very dark place in my mind, it was unacceptable. I have learnt from that now and understand that officers are doing their job…’ Mr Khoshaba claimed to have a ‘good clear record in prison since 2016 as I have come off my drug habit my behaviour has improved’.[104]
It is submitted in the Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) that Mr Khoshaba:[105]
(a)Has matured, served a lengthy prison term, been punished for his crimes, and now stands rehabilitated and drug free. Repeated drug tests in recent years evidence no trace of drugs in his body except in February 2016;
(b)His prospects of reoffending are low, including because of strong family and financial support, prospects of securing employment with his family, safe and secure accommodation, and a relationship with his daughter that he is keen to foster, who is waiting for him upon his release from detention;
(c)His recidivism risk has vastly reduced as a result of the courses he completed in prison that have given him the coping strategies he lacked in the past when he turned to drugs, but will now help him break the cycle of drug-related offending;
(d)The prison sentence he has served, coupled with the birth of his daughter, has had a profound impact on Mr Khoshaba’s maturity. He now has important emotional incentives to stay out of prison – and in Australia – in that he wants to continue to be involved in his daughter’s life and support his mother and sister;
(e)He has acknowledged the need for ongoing support from professional counselling services upon release, which the family are willing to financially support and enforce. Further he has the support of his broader religious community, where ongoing spiritual counselling and broader community assistance has been offered by the Holy Apostolic Catholic Assyrian Church of the East. The family support available to him is a strong protective factor, particularly given his migration status is dependent upon him maintaining a law-abiding life;
(f)He is genuinely remorseful and has acknowledged the significant adverse impact his actions have had on members of the community. He has apologised to the victims of his crimes and continues to show insight into his actions;
(g)The cautious optimism expressed by Her Honour during sentencing about Mr Khoshaba’s ability to rehabilitate ‘has been achieved and will continue following release’; and
(h)For all these reasons his risks of reoffending have been mitigated.
Mr Aleksov submitted during closing that although Mr Khoshaba’s past offending was probative to his future risk, ‘he has beaten all these addictions’, including ice which is freely available in detention and prison. Mr Khoshaba could have taken a ‘quick hit’ in prison if he had chosen to, but instead remained abstinent since testing positive in 2016. Mr Khoshaba now had a ‘stronger mechanism of self-control’, arising in part from his responsibilities as a father. Fatherhood had changed him from a reckless man, becoming the ‘driving force of his life’. Although it was not possible to say he is never going to be a risk, there were ‘significant supports against relapse,’ including family support and that of his religious community. Mr Aleksov concluded that the ‘risk to the Australian community is quite low and should be tolerated.’
The respondent’s submissions in relation to this primary consideration can be summarised as follows:[106]
(a)If Mr Khoshaba was to reoffend in the same way as his most recent and most serious offending, great harm would result. As Judge Lawson noted, the consequence of that offending was great. The applicant also has a history of violent offending, and a history of possessing controlled weapons including firearms. If he was to commit further violent offences great harm could result;
(b)There is a significant likelihood of recidivism. The applicant has reoffended repeatedly over a long period of time. Furthermore, his offending has escalated and been linked to his drug use and problem gambling. His inability to refrain from drugs appears to be a principal contributing factor to his offending. Given that history, the Tribunal cannot be confident Mr Khoshaba has overcome his addictions and other negative influences. Mr Khoshaba’s positive drug test while imprisoned and the absence of corroborating expert evidence regarding the extent to which his addictions have been ameliorated gives rise to persistent concerns;
(c)The applicant has demonstrated a persistent disregard for the law from a young age. He has not been deterred by sanctions including community based orders and bail, and has repeatedly breached such conditions. Corrections Victoria assessed the applicant as being at high risk of reoffending. This assessment, recorded at February 2018, was said to be ‘according to the LS/RNR’. According to the Parole Manual published by the Adult Parole Board of Victoria, the Level of Service Risk Need Responsivity (“LS-RNR”) is a tool used by Corrections Victoria (“Corrections”) to assess level or risk, treatment needs, and likely responsiveness to treatment. The Parole Manual records that Corrections convert the results of these tests into three levels: low, medium and high. The Parole Manual records that the LS-RNR is used in a number of countries and has been subject to statistical validation, and is incorporated into assessments by the Parole Board. The applicant’s assessment as a high risk under this instrument supports the conclusion that he poses a real risk of reoffending;
(d)On the other hand, a number of factors suggest some prospect of rehabilitation. Amongst other things, Judge Lawson pointed to factors that made Her Honour ‘cautiously optimistic’ about the applicant’s rehabilitation, including: ongoing family support; a positive relationship with his partner and young child; his ability to abstain from drugs in prison; and recognition that what he did was wrong. The first of these factors should be treated with caution. The applicant enjoyed family support at the time of his offending. He reoffended after a radical intervention by his parents in 2010, who relocated him to Canada as a circuit breaker from his troubles in Australia, but he reoffended almost immediately on return. The third factor should also be treated with caution given that since these remarks were made by Judge Lawson, the applicant tested positive to a drug test in prison. Prison documents suggest this was for methamphetamine, a drug the applicant has admitted to using daily in the past;
(e)There is evidence of the applicant undertaking rehabilitation programs in prison, including completion of a 44 hour program ‘Breaking the Ice’ and a ‘High Intensity Violence Intervention Program’. It appears these programs are required for any parole application. The G-documents also contain certificates of completion for a 6 hour ice effects program and a ‘Talking Change’ program;
(f)The applicant has provided a letter of support from a Reverend. While there is no reason to doubt the author’s intentions, it is clear from the document that he does not know the applicant. His ability to provide effective support to the applicant so as to reduce the risk of him reoffending must therefore be doubted; and
(g)Overall there remains a substantial risk of the applicant reoffending. Given this risk and the significant harm that would result if the applicant was to reoffend, the primary consideration of protection of the Australian community weighs strongly against revocation.
Mr Rogers submitted during closing that the nature of harm arising from a repeat of Mr Khoshaba’s offending was ‘undoubtedly serious’, given that crimes like armed robbery can cause great harm. He contended that the likelihood of reoffending was high because of Mr Khoshaba’s past recidivism and its escalating seriousness. He had not been deterred by sanctions short of imprisonment and had shown a persistent disregard for lawful authority. As he did on return from Canada, Mr Khoshaba is ‘likely to reconnect’ with negative influences and there were ‘significant doubts’ he would not relapse into addictions and offending. His family was no better placed to do now what they were clearly unable to do in the past. The responsibilities Mr Khoshaba had in the past to his family, then partner and unborn child, were inadequate safeguards to prevent further offending. Moreover, Mr Khoshaba’s misconduct in prison, including use of drugs in a controlled environment, required his recent claims about abstinence to be treated with caution. Mr Rogers contended that the risk posed by Mr Khoshaba was ‘significant and unacceptable.’
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that:
(a)Through his offending Mr Khoshaba has caused physical and psychological harm to multiple victims. If he were to again commit armed robbery or recklessly cause injury, or assault an emergency worker on duty, or carry a loaded firearm, similar harm may result. In relation to other categories of Mr Khoshaba’s offending:
(i)Drug Offences: Although there are relatively few drug offences in his criminal record, it is clear from Mr Khoshaba’s evidence and the submissions of his legal representative, that illicit drug use has been a ‘long-term’ and ‘serious addiction problem’.[107] It started at a young age and worsened as an adult. Mr Khoshaba has been convicted of possessing cannabis, amphetamine, and other drugs on several occasions. Mr Khoshaba’s evidence about having ceased his drug addiction in prison is not assisted by returning a positive drug test for methamphetamine in 2016 and involvement in another drug-related incident in 2015.[108] The Tribunal concludes there is a real risk of him committing further drug offences if at liberty in the community, which the 2016 sentencing remarks considered would be the ‘real challenge’;
(ii)Dishonesty offences: If Mr Khoshaba was to commit further dishonesty offences like stealing cars or other property, victims may suffer financial harm and inconvenience. His most recent dishonesty conviction was in January 2015 and when considered in conjunction with other convictions in 2014, 2009, 2008, and 2007, further dishonesty offences cannot be discounted. The Tribunal concludes there is a real risk of him committing further dishonesty offences if released;
(iii)Conditional Liberty Offences and Misconduct While Imprisoned: Mr Khoshaba has committed multiple conditional liberty offences such as failing to answer bail, and committing offences while under a Community Corrections Order.[109] Contrary to his evidence about committing ‘indiscretions’ while adjusting to prison life, but having a ‘clear record in prison since 2016’,[110] the Tribunal finds he has not been a compliant prisoner. Contrary to Mr Khoshaba’s claims, the evidence discloses disturbing incidents in prison up to 2018. That includes an incident in 2018 when he called a prison officer a ‘fucking dog’ and threw chairs at a window and towards staff, breaking one chair and narrowly missing a staff member.[111] It was an act of aggression causing prison authorities to give him a ‘maximum security rating’.[112] This and other incidents cut across his rehabilitative claims. Given his past criminal history and inability to demonstrate meaningful periods of compliance while imprisoned, the Tribunal concludes there is a real risk of further conditional liberty offences and not complying with lawful authority if released.
(b)Mr Khoshaba’s offending is linked to funding his drug and gambling addictions. His ‘spiralling’ drug use was not curtailed by two-years living in Canada, which was intended to provide a ‘fresh start away from drugs and gambling.’ He ‘continued to spiral out of control’ on return.[113] The Tribunal respectfully adopts the Court’s reasoning in finding that the ‘real challenge’ for Mr Khoshaba is upon release, when he is ‘exposed to the same negative peers that influenced [his] offending in the past.’[114] That challenge is yet to be confronted and the beneficial effect of Mr Khoshaba’s rehabilitative progress while imprisoned or in detention is untested in the community;
(c)There is an approximately four-year period between mid-2009 and March 2013 during which Mr Khoshaba did not have any convictions recorded against him. While this may be seen as indicative of a change in behaviour, he lived in Canada for much of this time. There is no evidence of any offending or other misconduct in Canada and the unchallenged evidence of Mr Khoshaba’s family is that he remained law-abiding during this period. That being said, he was convicted of further offences within three months of returning to Australia, some of which he said related to his conduct prior to departure for Canada. This was followed by further convictions in 2014, 2015, and 2016. His most serious convictions were at the age of 24. His criminal offending cannot be regarded as isolated or impulsive, but a regrettable pattern of recidivism encompassing most of his stay in Australia;
(d)Mr Khoshaba expressed remorse and acceptance of responsibility for his offending. While the Tribunal accepts he is remorseful, the force of his evidence is diminished by the persistent nature of his crimes and multiple incidents of misconduct while imprisoned. This reflects a lack of insight and respect for Australia’s law-enforcement framework;
(e)The protective factors referred to in the evidence as potentially reducing Mr Khoshaba’s risk of recidivism include a ‘supportive family, stable accommodation, relationship with his partner and newborn child, and motivation to engage in further studies….’[115] At the time of his most recent offending, he had a supportive family, stable accommodation, a partner who was approaching delivery of their child and the ability to continue studying. These were insufficient to curtail his addictions and offending, which reduces the force of his current reliance on similar factors;
(f)Mr Khoshaba’s evidence that his offending resulted in part from feelings of exclusion at not being able to ‘fit in’[116] or to become a permanent resident or Australian citizen, are not accepted.[117] The development of drug and gambling addictions, and engagement in violent criminal conduct, are in no way explained by a failure to gain permanent residency or citizenship. Indeed, such conduct reduces a visa holder’s prospects in this regard. The Tribunal also rejects the submission that all of his offending was as a ‘youth’.[118] While some of Mr Khoshaba’s offending was as a juvenile, most occurred after he became an adult;
(g)Mr Khoshaba’s conduct has been persistently violent despite the court’s leniency, the constraints of conditional liberty, and multiple opportunities for rehabilitation. That he has been unable to moderate his conduct despite such opportunities diminishes the force of his evidence about intending to do so in the future;
(h)Notwithstanding Her Honour’s finding in 2016 that Mr Khoshaba remained drug free prior to sentencing, the evidence shows he returned a positive urine test for illicit drugs while on remand in February 2016. This appears to have been unknown to Her Honour when passing sentence. Moreover, a further drug-incident and other recorded incidents of misconduct, cut across Mr Khoshaba’s claim that he has ‘grown up’ and rehabilitated himself while imprisoned;[119]
(i)The Tribunal notes Her Honour’s cautious optimism about Mr Khoshaba’s rehabilitation prospects during sentencing.[120] The Tribunal acknowledges he has taken some rehabilitative steps to address his propensity to reoffend. But the evidence does not persuasively support his contention about posing no risk to the community, or the contention of counsel that he constitutes a low and tolerable risk. His persistent reoffending and the misconduct recorded against him while imprisoned are not indicative of someone with fully developed insight or who have been rehabilitated. In the absence of corroborating expert evidence, the Tribunal has decided to treat his rehabilitative claims with caution.

The Tribunal finds that Mr Khoshaba’s offending is very serious and there is a real risk he will reoffend and cause further harm if released. The risk is unacceptable and this primary consideration weighs very substantially against revocation.
Tribunal consideration: Best interests of minor children in Australia
Clause 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not to revoke the mandatory visa cancellation is expected to be made. It is not required that the applicant have a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 13.2(4) to be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Mr Khoshaba’s now four-year old child was born after he was imprisoned. He claimed in his 2017 PCF that his partner brings the child to visit him in prison fortnightly for two hours[121] and they play together. But due to their infrequent contact, the child forgets him and sees him ‘as a stranger,’ causing him to ‘start again every time I see her.’[122] In his most recent statement Mr Khoshaba submits he has developed a parental relationship with his daughter through such visits and over the telephone.[123] He expresses a desire to play a more meaningful parental role if permitted to remain in Australia, claiming his child would be devastated if he was not present to support her ‘emotionally, physically and mentally.’ He stated that the child will need ‘discipline and a teacher,’ which is ‘not going to work over the phone.’[124] More recently, he states that the mother of his child ‘would be left alone’ without his support to raise their child, and his daughter would ‘grow up without a father.’[125]
It is submitted by Mr Khoshaba’s legal representative that his daughter has only known her father in the context of prison, and ‘needs his care and support’ in her formative years.[126] It is further submitted that if removed to New Zealand, it ‘is highly unlikely’ Mr Khoshaba would ever see his daughter again, or at best irregularly, as there is no evidence his ex-partner is willing or able to relocate to New Zealand. In closing, Mr Aleksov submitted that Mr Khoshaba had developed a close relationship with his child before his former partner withdrew from the relationship. Mr Aleksov said there was ‘an obvious path of reasoning’, notwithstanding the absence of recent evidence from the former partner, that she ‘fears [Mr Khoshaba] won’t be around to support their daughter’. That being said, the Tribunal should accept that Mr Khoshaba would have ‘some relationship’ with the child if released.
During closing, Mr Rogers submitted that in light of evidence at the hearing that Mr Khoshaba and his former partner were no longer in a relationship, any suggestion they might resume their relationship was speculative at best. Additionally, any future parental role desired by Mr Khoshaba appeared to depend in part on what custody arrangements could be determined through a legal process. Mr Rogers also noted that Mr Khoshaba had referred during cross-examination to the child becoming frustrated by the requirement to visit him in controlled environments and having to conduct their relationship through telephone and video. Mr Rogers accepted, however, it is in the child’s best interests for the cancellation decision be revoked, and should carry some weight, but does not displace the countervailing primary considerations as another reason to revoke, either alone or in combination with the other considerations favouring revocation.
Tribunal findings: Best interests of minor children in Australia
The Tribunal is satisfied Mr Khoshaba loves his daughter, has some relationship with her, and aspires to play a more prominent parental role. But the evidence discloses he has not played a day-to-day parental role since his daughter’s birth. Their relationship has been characterised by long periods of absence and limited meaningful contact because of his imprisonment and detention. Mr Khoshaba’s former partner has fulfilled the primary parental role. A letter in evidence from Mr Khoshaba’s former partner[127] has clearly been overtaken by events. She and Mr Khoshaba are no longer in a relationship. She did not attend this hearing or provide a statement. Less weight is consequently placed on her letter. It remains an open question as to the extent Mr Khoshaba may have access to his child or be able to play the more meaningful parental role he aspires to. That is particularly so given the evidence of Mr Khoshaba’s mother and sister, that the child’s mother told them their plans for increased access would have to be Court-ordered.
On Mr Khoshaba’s own evidence, the recent lack of visitation with his child emanates in part from the child’s frustration at having to visit him in controlled environments and to conduct their relationship by telephone. The evidence does not enable a reliable conclusion that the child needs Mr Khoshaba’s ‘care and support as a father’.[128] In the absence of any current evidence from the child’s mother regarding the extent to which she relies on Mr Khoshaba, or would permit his involvement in the future, Mr Khoshaba’s submissions are speculative at best.
In the absence of any current evidence from the child’s mother, the Tribunal does not accept that repatriation means it is ‘highly unlikely’ Mr Khoshaba would ever see his daughter again, or at best irregularly. It is simply not possible to speculate on what access or visitation might be agreed to or ordered.
In terms of maintaining contact with his daughter in other ways if repatriated, Mr Khoshaba would be able to do so by telephone or video calls. It is acknowledged he considers this an undesirable alternative to the personal contact he prefers. Again, the absence of evidence from his former partner about the extent to which such contact is desired or allowed inhibits a reliable conclusion.
The Tribunal accepts it is generally in a child’s best interests for both parents to support and nurture them. As Mr Khoshaba’s daughter becomes older, she may want a more meaningful relationship with him, which would be more difficult if he was living in New Zealand. Although the current wishes of Mr Khoshaba’s partner are unknown, she would also be required to continue raising the child as a single mother, with the additional practical, emotional and financial impost accompanying that responsibility. There is no evidence she has been reliant on any financial contribution from Mr Khoshaba, who has rarely worked since arriving in Australia.
If Mr Khoshaba was able to remain abstinent from drugs and gambling, live a law-abiding life, and be permitted access to his daughter, she is likely to benefit from a positive paternal role model in her life. Given the persistence of Mr Khoshaba’s offending and the earlier finding about his unacceptable risk of recidivism, however, the Tribunal has concerns about the extent to which he is likely to play the positive role he aspires to. The interests of his family, partner and then unborn child were previously insufficient for him to abstain from drugs, gambling, and offending. Any relapse into addiction or further recidivism would have a continuing negative impact on his child.
On balance, revoking the mandatory cancellation of Mr Khoshaba’s visa is in the best interests of his child. But given he has been imprisoned for all of the child’s life, and in the absence of any current evidence from his former partner, this primary consideration only weighs slightly in favour of revocation.
Tribunal consideration: Expectations of the Australian community
Clause 13.3 of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Australian Federal Court dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although this case refers to a different part of a previous Direction and relates to visa refusal, the clause is in identical wording as cl 13.3 of the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[129] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’.[130] His Honour summarised the community’s expectations at [101] and [103]:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but that ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[131] The Direction helps inform the weight a decision-maker attributes. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. That being said, use of terms like ‘should generally’ convey discretion and judgements turn on the specific circumstances of each case (cl 6.1(3)). The reasoning in FYBR also reflects the potential inherent in cl 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...’ Moreover, it reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations’, which ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors…’[132]
Mr Khoshaba states in his May 2019 statement that he now understands the expectations of the Australian community[133] and ‘wants to make a difference by contributing positively’.[134] That includes playing a more meaningful parental role and by studying and working.[135] Submissions by Mr Khoshaba’s legal representative include:[136]
(a)‘Right thinking members of the community, apprised of all of the facts of this case, would not expect the applicant’s visa to remain cancelled’;
(b)Citing Rabino and Minister for Immigration and Border Protection [2016] AATA 999, ‘the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia’, and that this assessment should be made on the basis of the individual circumstances of each case considered in light of the purpose of the legislation; and
(c)Citing Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23]: ‘A decision-maker is, to some extent, required to guess at the community’s expectations...’.
The respondent submits that in circumstances where the applicant has committed serious criminal offences the community expectation will call for non-revocation, and this primary consideration should be given significant weight.
Tribunal findings: Expectations of the Australian community
In light of the Full Court’s findings in FYBR, the Tribunal does not agree with the submissions of Mr Khoshaba’s legal representatives that it should assess whether ‘right thinking’ members of the community would expect to give Mr Khoshaba a ‘second chance,’ or to ‘guess’ at the community’s expectations.
The deemed community expectation is that the mandatory cancellation of Mr Khoshaba’s visa should not be revoked. That follows from his extensive criminal history, persistent misconduct while imprisoned, and failure to grasp previous rehabilitative opportunities. Given the specific circumstances of this case, this primary consideration weighs very substantially in favour of non-revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
Mr Khoshaba did not raise any non-refoulement claims. The Tribunal finds that Australia’s non-refoulement obligations are not enlivened as a relevant consideration in this matter.
Tribunal consideration: Strength, nature and duration of ties
Clause 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Khoshaba’s submissions centre predominantly on the interests of his child and the strength of his relationship with his parents and sister. He states in his May 2017 PCF: ‘My family is only my dad, mum and my sister, my daughter and her mother.’[137] In light of his oral evidence at the hearing, his former partner is no longer part of his family. Mr Khoshaba also referred in his May 2017 PCF to other close family members in Australia as five uncles/aunts and 32 cousins. The ASFIC, however, refers only to an ‘uncle and aunty’ as Mr Khoshaba’s extended family in Australia.[138] When asked about this during the hearing, Mr Khoshaba confirmed he only had one aunt and uncle in Australia and the information about 32 cousins was not correct. He said he was not close to any other relatives in Australia apart from his parents, sister and child.
In his May 2017 PCF, Mr Khoshaba listed two jobs as a crew member in fast-food restaurants in 2007 and 2008 as his only employment history in Australia. He confirmed during the hearing this was the only work he has undertaken in Australia. In terms of his contribution to Australia, Mr Khoshaba referred to being an ‘active member’ of the ‘Holy Apostolic Catholic Assyrian Church.’ Two letters and a statement are in evidence from priests of that church. The former are addressed ‘To Whom it May Concern.’ In one letter dated 6 May 2019, the author states he does not know Mr Khoshaba personally. The other letter dated 30 June 2016 makes a very general claim that Mr Khoshaba ‘has always been active at our church and contributes to our close-knit community.’ The most recent statement[139] from a parish priest who wrote an earlier letter is in comparably similar terms, stating he did not ‘personally know Rami.’[140]
In relation to the effect of visa cancellation on his family, Mr Khoshaba stated in his May 2017 PCF:
My family already is missing me too much…They have visited me every chance….We have lunch and talk and plan our lives. My mum and me have been planning to open a business when I come out, to work together. Cancellation of my visa has scared them they can’t believe it is happening. They don’t care about life anymore…
More recently Mr Khoshaba refers to a ‘severe’ effect on his family in Australia if he had to return to New Zealand.[141] Mr Aleksov referred during closing to Mr Khoshaba’s ‘deep and strong’ connection to Australia. It was also submitted in the ASFIC that:[142]
(a)Mr Khoshaba has lived in Australia since 2005 when he was 13, except for a two-year period in Canada. It is clear he has made Australia his home, the place where he has lived, worked and started a family;
(b)He has three immediate family members in Australia, two of whom are permanent residents. He maintains a close relationship with his mother and sister, but there is some distance between he and his father given his father’s need to work interstate. Despite this there is both love and support from each member of the family;
(c)The family have moved regularly and readjusted to different cultural settings. It has been a struggle financially and emotionally for the family to achieve what they have thus far. They are now settled in Australia with a strong connection to the Assyrian Christian community and own properties; and
(d)Mr Khoshaba has a daughter who is an Australian citizen and maintained a close connection with his ex-partner whilst imprisoned and which he intends to continue upon release for the sake of his daughter. His daughter and the circumstances of her birth are clearly significant to him, and regular visits during imprisonment evidence the Applicant’s willingness to foster a relationship with his daughter.
The respondent submits that Mr Khoshaba’s arrival in Australia from New Zealand in April 2005 weighs in his favour, but the Direction provides that less weight should be given where the person began offending soon after arriving in Australia. In this case, the applicant’s first appearance before a Court was in 2007, which was two years after his arrival. Whilst the applicant has spent most of his time in Australia since 2005, he lived overseas in Canada between November 2010 and December 2012. The applicant has a mother, father and sister in Australia. Mr Rogers stated during closing that Mr Khoshaba’s family is committed to him and would be detrimentally impacted by his removal. Mr Rogers submitted that Khoshaba had not spent much time contributing positively to Australia since arriving here.
Tribunal findings: Strength, nature and duration of ties

Some weight is placed on the fact that Mr Khoshaba has lived in Australia for approximately 13 years.[143] Less weight is placed on this consideration, however, because he started offending within two years of arrival. After spending two years living in Canada between 2010 and 2012, Mr Khoshaba was convicted of further offences within three months of returning to Australia. His criminal record culminates in his most serious convictions in 2016.
The Tribunal finds it is not possible to attribute more weight to this consideration as a result of Mr Khoshaba’s positive contribution to Australia. He refers to work in 2007 and 2008 as a ‘crew member’ in fast food restaurants, but claims no other work in Australia as an adult. The Tribunal accepts Mr Khoshaba may have had some involvement as a parishioner at a Catholic Assyrian Church. That being said, neither of the two priests who wrote supportive letters seem to know him personally or have any knowledge of his criminal history. Neither priest was called to give evidence and could not be cross-examined. The Tribunal places little weight on their evidence.
Mr Khoshaba has very limited but strong ties to four family members in Australia: his parents, sister, and child. The Tribunal also accepts he has an aunt and uncle in Australia that he is not close to, but finds his evidence about having more than 30 other relatives in Australia[144] to be erroneous. Mr Khoshaba’s repatriation to New Zealand would deny him easy access to his loved ones in Australia, the opportunity to explore co-parenting of his daughter, and to progress business plans with his parents. On the evidence, however, the plan to start a business and employ Mr Khoshaba as manager is aspirational and conditional at best. Repatriation may also deny Mr Khoshaba’s former partner financial and other support for their daughter. That being said, Mr Khoshaba has rarely worked in the past and there is no recent evidence from his former partner about her willingness to involve him in their daughter’s life.
The Tribunal accepts Mr Khoshaba’s immediate family are understandably anxious about his circumstances, and continue to provide him with unconditional love and support. But he has not previously taken advantage of that support to make meaningful and enduring changes. That includes after relocating to Canada for two years as a circuit breaker for his addictions and negative associations. Despite claiming to have abstained from drugs and remained law-abiding in Canada, he fell back into negative associations, drug use, and offending on return to Australia.
On balance the Tribunal accepts Mr Khoshaba’s strongest family and social ties are to members of the Australian community, and repatriation would have a detrimental emotional effect on his family. His father and sister stated they would visit him in New Zealand and continue to support him emotionally and financially. Given Mr Khoshaba’s parents intend to purchase a business for him to manage in Australia, there is no evidence the same resources could not be applied for a similar purpose in New Zealand if they wished. The Tribunal finds on balance, however, that this consideration weighs moderately in favour of revocation.
Impact on Australian business interests
Clause 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Mr Khoshaba has rarely worked since arriving in Australia and has not raised any claims about the impact of a decision in this matter on Australian business interests. The Tribunal places no weight on this consideration.
Impact on victims
Clause 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Mr Aleksov conceded during closing that this consideration weighed against the applicant. The Tribunal finds, however, that there is no evidence from any victims or their family members about the impact of a decision in this matter. The Tribunal places no weight on this consideration.
Tribunal consideration: Extent of impediments if removed
Clause 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Mr Khoshaba is a relatively young man at 28 years of age and expresses a desire to work, study, be a better parent, and remain law-abiding if released. The only medical condition referred to in his 2017 PCF is ‘groin hernia (awaiting operation),’ which has since been resolved through surgery. The 2016 sentencing remarks refer to the report of a psychologist who undertook an assessment and psychological testing of Mr Khoshaba, which was ‘not consistent with the presence of any mental illness.’[145] There are no diagnosed medical or psychological conditions disclosed by the evidence that could be considered noteworthy impediments to his repatriation.
Mr Khoshaba submits he has no family or other links in New Zealand, claiming to have been ‘young when we lived there. I don’t know anyone and I don’t remember anything from there.’[146] He claims that he would experience financial difficulties in New Zealand and be isolated from his current sources of practical and emotional support in Australia. He expresses concerns about securing stable accommodation, work, and generating sufficient income for his daily living expenses.
The respondent submits Mr Khoshaba is a young man and any issues with his herniated groin appear treatable in New Zealand. There is no evidence this condition impedes his repatriation or prevents him from working. The respondent contends that New Zealand nationals enjoy comparable standards of health care, education and social welfare to those available in Australia, and Mr Khoshaba could access these services if needed. Therefore, whilst there might be difficulties faced by Mr Khoshaba in establishing himself in New Zealand, they are far from insurmountable. The respondent submits this consideration carries only limited weight in favour of revocation.
Tribunal findings: Extent of impediments if removed
The Tribunal finds that:
(a)Mr Khoshaba lived in New Zealand from around the age of 5 until 13 and first arrived in Australia in 2005. The Tribunal cannot discern any cultural or language impediments to his repatriation to New Zealand;
(b)There is no evidence Mr Khoshaba would be unable to work as the result of any medical or psychological condition. He expresses an aspiration to find work if released and there is no apparent reason why he could not do so in either Australia or New Zealand. The vocational courses he has undertaken while imprisoned may have enhanced his work prospects. While the Tribunal accepts Mr Khoshaba has no family or social network in New Zealand to assist him, the Tribunal considers he is sufficiently educated and capable of overcoming impediments arising in a country like New Zealand;
(c)Repatriation to New Zealand would separate Mr Khoshaba from his parents, sister, and child, who are his strongest sources of practical and emotional support. His father’s evidence is that he and his wife provided their son with ‘a weekly allowance up until he was locked up.’ Both Mr Khoshaba’s mother and father refer to funding a new business to provide him employment. It remains open to his parents to continue that financial assistance or visit him in New Zealand if they wished. Moreover, the evidence of his father and sister is that they would continue to support him financially if repatriated. His sister claims both she and her mother would relocate to New Zealand to continue to support Mr Khoshaba, although his mother stated during her oral evidence she would not visit him or be able to support him in New Zealand. The Tribunal is satisfied Mr Khoshaba could rely on financial and practical support from his father and sister if repatriated; and
(d)Mr Khoshaba would be confronted by the challenge of re-establishing himself in a country he last lived in as a teenager. If he were unable to secure stable accommodation or work, there is no evidence he would not have access to the same public housing, income and other support available to all New Zealand citizens. If he required further medical treatment for his herniated groin, there is no evidence that treatment is not available in New Zealand, which has comparable levels of healthcare to Australia.
On balance this consideration weighs moderately in favour of revocation.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of Mr Khoshaba’s application, as provided for at cl 14(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Khoshaba does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal notes the persistently serious nature of Mr Khoshaba’s offending, particularly his convictions for violent offences. If he were to again commit armed robbery, or recklessly cause injury, or assault an emergency worker on duty, or carry a loaded firearm, serious physical or psychological harm could result. There is also potential harm arising from other categories of Mr Khoshaba’s offending.
Mr Khoshaba has reoffended despite the court’s leniency and the presence of similar protective factors he now claims will help him lead a law-abiding life. The presence of a loving and loyal family, stable accommodation, supportive partner, and the interests of his then unborn child, were insufficient motivators to overcome his addictions or for him to cease offending. Mr Khoshaba’s risk of recidivism is real, unacceptable and supports an exercise of the discretion to refuse to revoke the cancellation of his visa.
In terms of his young daughter, Mr Khoshaba has not played a day-to-day parental role in her life due to his imprisonment and detention. Their relationship is founded on visits and telephone calls alone. His former partner has fulfilled the parental role and the current evidence leaves open the question about the extent to which she would welcome Mr Khoshaba’s future involvement. That is not to deny Mr Khoshaba’s love for his daughter or his aspiration to play a more meaningful parental role. While the Tribunal has residual concerns about the absence of any recent evidence from Mr Khoshaba’s former partner, who did not appear at the hearing, the best interests of his child, on balance, weigh in favour of revocation.
In terms of the deemed community expectation, Mr Khoshaba has repeatedly acted contrary to the privilege bestowed on visa holders to remain in Australia. In light of the very serious and persistent nature of his crimes, he should expect to forfeit the privilege of staying in Australia. In relation to his submission about a ‘second chance,’ the evidence discloses he has been afforded multiple chances to rehabilitate and live a law-abiding life, but has chosen not to.
Mr Khoshaba has spent approximately 13 years in Australia, from which there is a scant return in terms of any positive contribution. Less weight is placed on the consideration of ‘Strength, nature and duration of ties’ given Mr Khoshaba’s offending started within two years of arrival in Australia. After spending more than two years overseas between 2010 and 2012, he was convicted of further offences within three months of returning as an adult, and then continued to reoffend in subsequent years.
The Tribunal accepts that Mr Khoshaba’s strongest family and social ties are in the Australian community, particularly his parents, sister, and child. There is no doubt his repatriation would have a deep and enduring emotional effect on his family.
Although there is no cultural, language or health-related impediment to Mr Khoshaba’s repatriation, the Tribunal accepts he has no family or social network in New Zealand to call upon. He would be confronted by challenges in re-establishing himself in a country he last lived in as a teenager. Perhaps most notably, repatriation to New Zealand would separate Mr Khoshaba from his parents, sister, and child, who are his strongest sources of practical and emotional support. But the evidence of his father and sister is that they will support him financially if returned. His sister’s evidence is that she would relocate to New Zealand to be with him. He would also have access to the same public housing, income and other support available to all other New Zealand citizens.
Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel Mr Khoshaba’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very substantially against revocation. These considerably outweigh the primary consideration ‘Best interests of minor children,’ which weighs slightly in favour of revocation, and the other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which both weigh moderately in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……[sgd]…………………………….
Associate
Dated: 6 March 2020

Date of hearing: 27 February 2020

Counsel for the Applicant: Mr Angel Aleksov

Solicitors for the Applicant:

Advocate for the Respondent:

WLW Migration Lawyers

Mr Ned Rogers

Solicitors for the Respondent:

Australian Government Solicitor

[1] Exhibit R1, 173-174.
[2] Exhibit A4, [15].
[3] Exhibit R1, 82.
[4] Ibid, 59.
[5] Ibid, 55; 79.
[6] Ibid, 40 [68].
[7] Ibid, 121-126.
[8] Ibid, 42-80.
[9] Ibid, 173-174.
[10] Ibid, 1-7.
[11] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ.
[12] Exhibit R1.
[13] Exhibit A1.
[14] Exhibit A2.
[15] Exhibit A3.
[16] Exhibit A4.
[17] Exhibit A5.
[18] Exhibit A6.
[19] Exhibit A7.
[20] Exhibit R1, 25-28.
[21] Ibid, 28-41.
[22] Ibid, 42-52.
[23] Exhibit A1.
[24] Exhibit R1, 42-58; 137-138.
[25] Exhibit A1, 1 [4].
[26] Ibid, 2 [6].
[27] Ibid, 2 [8].
[28] Ibid, 3 [19].
[29] Ibid, 3 [16].
[30] Ibid, 4 [23].
[31] Ibid.
[32] Exhibit R1, 960.
[33] Ibid, 971.
[34] Ibid, 972.
[35] Ibid, 1002.
[36] Ibid, 1003.
[37] Ibid, 5 [30].
[38] Ibid 5 [32].
[39] Ibid, 6 [41].
[40] Exhibit A2.
[41] Exhibit R1, 78.
[42] Exhibit A4, 2 [8].
[43] Ibid, 3 [17].
[44] Exhibit A3.
[45] Exhibit R1, 62-66.
[46] Ibid, 67-73.
[47] Ibid, 74-77.
[48] Exhibit A3, 5 [32].
[49] Exhibit A4.
[50] Exhibit R1, 60-61.
[51] Exhibit A2, 5 [24].
[52] Ibid, 5 [26].
[53] Ibid, 6 [32].
[54] Ibid, 7 [42].
[55] Ibid.
[56] Ibid, 8 [46].
[57] Ibid.
[58] Ibid, 9 [54].
[59] Exhibit A5.
[60] Exhibit R1, 81.
[61] Exhibit R1, 34 [31].
[62] Ibid, 33 [27]; 34 [28].
[63] Ibid, 33 [27].
[64] Ibid, 35 [33]-[37].
[65] Ibid, 40 [68].
[66] Ibid, 54.
[67] Ibid, 49; 54.
[68] Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) dated 24 February 2018 (sic) [22]-[26].
[69] Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”), 18 February 2020, [26].
[70] Exhibit R1, 29 [2].
[71] Ibid, 34 [31].
[72] Ibid, 35 [33]-[37]
[73] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 578-579.
[74] Exhibit R1, 49.
[75] Ibid, 57.
[76] Ibid, 54.
[77] Ibid, 56.
[78] Ibid, 138.
[79] Ibid, 84.
[80] Ibid, 85.
[81] Ibid, 86.
[82] Ibid, 88.
[83] Ibid, 89.
[84] Ibid, 87.
[85] Exhibit A6.
[86] Exhibit A7.
[87] Exhibit R1, 50.
[88] Ibid, 983.
[89] Ibid, 100.
[90] Ibid, 102.
[91] Ibid, 105-107.
[92] Ibid, 109.
[93] Ibid, 108.
[94] Ibid, 114.
[95] Ibid, 115.
[96] Ibid, 954.
[97] Ibid, 955.
[98] Ibid, 958.
[99] Ibid, 960.
[100] Ibid, 961.
[101] Ibid, 965.
[102] Ibid, 137.
[103] Ibid, 5 [27].
[104] Ibid.
[105] ASFIC, [26]-[30].
[106] RSFIC, [28]-[34].
[107] ASFIC, 4 [23].
[108] Exhibit R1, 983.
[109] Ibid, 26-27.
[110] Ibid.
[111] Ibid, 971.
[112] Ibid, 972.
[113] Ibid, 36 [41]-[43].
[114] Ibid, 39 [60].
[115] Ibid, 39 [57].
[116] Ibid, 138.
[117] Ibid, 49.
[118] Ibid, 56.
[119] Ibid, 56.
[120] Ibid, 39 [60].
[121] Ibid, 47.
[122] Ibid, 47.
[123] Exhibit A1, 5 [30].
[124] Exhibit R1, 55.
[125] Exhibit A1, 6 [39].
[126] ASFIC, 3 [20]; 5 [38].
[127] Ibid, 79.
[128] Ibid, 3 [20]; 5 [38].
[129] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
[130] Ibid at [104] per Stewart J.
[131] Ibid at [75]-[76] per Charlesworth J.
[132] Ibid at [76] per Charlesworth J.
[133] Exhibit R1, 56.
[134] Ibid, 50.
[135] Ibid, 54.
[136] ASFIC, [39]-[43].
[137] Exhibit R1, 48.
[138] ASFIC, 2 [7].
[139] Exhibit A5.
[140] Exhibit R1, 81.
[141] Exhibit A1, 6 [39].
[142] ASFIC, 5 [32]-[37].
[143] Exhibit R1, 82-83.
[144] Ibid, 48.
[145] Ibid, 38 [56].
[146] Ibid, 51.

[2020] AATA 432

6 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice

Date of hearing:	27 February 2020
Counsel for the Applicant:	Mr Angel Aleksov
Solicitors for the Applicant: Advocate for the Respondent:	WLW Migration Lawyers Mr Ned Rogers
Solicitors for the Respondent:	Australian Government Solicitor