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

This matter concerned an application by Mr. Khoshaba to review a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his visa. Mr. Khoshaba, a citizen of New Zealand born in Iraq, had arrived in Australia in 2005 and subsequently had his visa mandatorily cancelled on character grounds following convictions for armed robbery and attempted armed robbery in 2016. He sought revocation of this cancellation, which was refused by the Minister's delegate, leading to the present review by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether there was "another reason" why the mandatory cancellation of Mr. Khoshaba's visa should be revoked, considering the legislative framework, including sections 501(6)(a) and 501(7)(c) of the Migration Act 1958 (Cth), which define the character test and substantial criminal records. This involved assessing the nature and seriousness of Mr. Khoshaba's offending, his criminal history, his rehabilitation efforts, his ties to Australia, and the best interests of his young daughter.

The Tribunal affirmed the delegate's decision not to revoke the visa cancellation. It found that Mr. Khoshaba did not pass the character test due to his substantial criminal record, specifically his convictions for violent offences. Despite Mr. Khoshaba's submissions regarding his remorse, drug rehabilitation, and the impact on his daughter, the Tribunal concluded that the persistently serious nature of his offending, including reoffending despite previous leniency and the presence of protective factors, indicated a real and unacceptable risk of recidivism. While acknowledging the best interests of his daughter weighed in favour of revocation, this was outweighed by the seriousness and persistence of his criminal conduct and the lack of a positive contribution to Australia during his 13 years in the country. The Tribunal noted that Mr. Khoshaba had been afforded multiple opportunities to rehabilitate but had not done so.