El Gharniti and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 668

El Gharniti and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 668 (26 March 2018)

Division:GENERAL DIVISION

File Number:           2017/4549

Re:El Hassan El Gharniti

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:26 March 2018

Place:Brisbane

The Tribunal affirms the decision under review.

.......................[Sgd].................................................

Member D K Grigg

CATCHWORDS

CITIZENSHIP – refusal of approval to grant citizenship – whether applicant of good character – failure to disclose previous offence – repeated history of offences while residing in Australia – lack of rehabilitation – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Hneidi and Others v Minister for Immigration And Citizenship (2010) 265 ALR 292

Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022

SECONDARY MATERIALS

Australian Citizenship Instructions Citizenship Policy (2016, Cth)

REASONS FOR DECISION

Member D K Grigg

26 March2018

INTRODUCTION

1. Mr El Gharniti was born in Morocco and is a citizen of Morocco.

2. Mr El Gharniti arrived in Australia on 3 February 2011 and became a permanent resident in Australia on 1 February 2013.[1]

   [1]Exhibit 1, T Documents, T4, page 122, Application for Australian Citizenship dated 7 October 2016.

3. On 7 October 2016 Mr El Gharniti applied for Australian citizenship by way of conferral under section 21(2) of the Australian Citizenship Act 2007 (“the Act”).[2] In his citizenship application, Mr El Gharniti indicated that he had never been convicted of any offences, including traffic offences, which went to Court.[3][4]

   [2]Exhibit 1, T Documents, T4, pages 120-136, Application for Australian Citizenship dated 7 October

   2016.

   [3]Exhibit 1, T Documents, T4, page 133, Application for Australian Citizenship dated 7 October 2016; T6, page 161,

   Tax Invoice/Receipt from DIBP dated 17 October 2016.

4. On 27 January 2017 the Queensland Department of Transport and Main Roads supplied traffic history details to the Tribunal which indicated that between 9 March 2011 and 23 December 2015 Mr El Gharniti had committed the following 10 traffic offences including 7 speeding offences:[5]

   [5]           Exhibit 1, T Documents, T7, pages 163-165, Letter from Qld Department of Transport and Main Roads enclosing

   Mr El Gharniti’s traffic record dated 13 February 2017; Minister’s Statement of Facts, Issues and Contentions dated 25 January 2018, Attachment C.

Date	Offence	Demerit Points Loss	Fine/Order
9 March 2011	Driving using a hand held mobile phone	3	$300.00
22 July 2013	Speeding (exceeding less than 13km/h)	1	$146.00
8 September 2013	Speeding (exceeding less than 13km/h)	3	$220.00
28 June 2014	Speeding (exceeding less than 13km/h)	1	$146.00
19 January 2015	Speeding (exceeding more than 20km/h but less than 30km/h)	4	$379.00
24 April 2015	Speeding (exceeding less than 13km/h)	1	$151.00
28 July 2015	Driving with expired licence (expired less than 1 year)	$180.00
19 October 2015	Speeding (exceeding more than 13km/h but less than 20km/h)	3	$235.00
23 December 2015	Speeding in 100km/h zone (exceeding more than 13km/h but less than 20km/h)	3	$235.00
9 February 2017	Speeding (exceeding less than 13km/h)	1	$162.00

1. Following the 5 traffic offences in 2015, Mr El Gharniti was placed on a good driving behaviour bond for 12 months commencing 2 February 2016 and expiring on 2 February 2017.[6]

   [6]           Exhibit 1, T Documents, T7, pages 163-165, Letter from Qld Department of Transport and Main Roads enclosing

   Mr El Gharniti’s traffic record dated 13 February 2017.

2. On 22 March 2017, the Department of Immigration and Border Protection (“DIBP”) wrote to Mr El Gharniti, informing him that it had become aware of his Court appearance on         7 July 2014 and his traffic offence history, and requested he provide an explanation or comment given that he had not declared these offences in his Citizenship Application.[7]

   [7]Exhibit 1, T Documents, T8, pages 167-169, Letter from DIBP to Mr El Gharniti dated 22 March 2017.

3. On 7 July 2014 Mr El Gharniti was charged with the offence under section 165(2) of the Liquor Act 1992 (Qld) for failing to leave a licensed premise (“Liquor Act Offence”). Section 165(1) of the Liquor Act provides that an authorised person for a premises to which a licence or permit relates may require a person to leave the premises if, among other things, the person is unduly intoxicated, disorderly, or is creating a disturbance. Section 165(2) of the Liquor Act provides that a person must immediately leave premises when required to do so under section 165(1). The Magistrates Court fined Mr El Gharniti $100.00 and a good behaviour order was imposed for 3 months with no conviction recorded.[8]

   [8]           Exhibit 1, T Documents, T8, page 170, National Police History Check Results Report.

4. The Queensland Police Report states that:[9]

   The defendant has been inside the Beat nightclub and has decided to light a cigarette, security staff have noticed this and attempted to remove cigarette from the defendant. The defendant has shrugged them off and walked away. The security staff is called for assistance from other security, we approach the defendant and informed him that he had to leave. The defendant started to get agitated and angry so security removed him from the club and restrained him until Police arrived.

   … Police have arrived and observed security staff from the Beat nightclub restraining a male person against the wall. Police took over from the security and the defendant has calmed down slightly. Police made enquiries as to the incident details and ascertained that the male had refused eviction.

   [9]           Exhibit 2, Minister’s Statement of Facts, Issues and Contentions dated 25 January 2018, Attachment A.

5. Documents produced under summons by the Queensland Police Service indicate that in addition to the Liquor Act Offence:[10]

   (a)on 24 August 2011 Mr El Gharniti was with 3 other males at a bus stop. One male was observed drinking a glass of red wine, and the others, including Mr El Gharniti had glasses next to them. The police report indicates that an empty bottle of red wine was seen on the ground and they were cautioned regarding consuming liquor in a public place;

   (b)Mr El Gharniti was fined for public urination on 4 February 2015. The police report states that the offence took place in Orchid Avenue, Surfers Paradise, in or around 4:20 AM and that Mr El Gharniti walked past the Police and began urinating in the doorway of a car park. Mr El Gharniti was video recorded by the police and he admitted to the offence and an infringement notice was issued;

   (c)on 1 January 2016 police approached Mr El Gharniti and others who were in a park and detained him for a search however nil items were located;

   (d)on 18 July 2016 police attended at Mr El Gharniti’s home following complaints of a disturbance. The Police report notes that Mrs El Gharniti told police that:

   There had been a: “verbal argument in relation [to Mrs El Gharniti] leaving razors in the bathroom and that her daughter aged 5 had picked them up and shaved her legs with them. She stated there had been ongoing issues in the relationship and that she had recently been diagnosed with MS and was finding it difficult to cope. She stated that in this instance there had been no physical violence or threats but that previously in the past they have been pushing and shoving by the parties. Police spoke with [Mr El Gharniti] who confirmed [his wife’s] version. He stated that there had been no violence and that he had not threatened her. Both parties offered and accepted support link referrals. It appears that there are ongoing relationship difficulties due to cultural issues as [Mrs El Gharniti] is Australian and [Mr El Gharniti] is Arabic”. Police did not believe that an application was appropriate in that instance.

   [10]         Exhibit 2, Minister’s Statement of Facts, Issues and Contentions dated 25 January 2018, Attachment A.

6. Mr El Gharniti declared in two statutory declarations that the Liquor Act Offence was because of a misunderstanding. He declares that the security guard at the premises did not believe he did not have a lit cigarette in his possession and that as he tried to explain they called the police to say he would not leave. Mr El Gharniti said he followed the advice of Legal Aid to plead guilty and that because no conviction was recorded he did not realise he had to disclose this in his Citizenship Application.[11] Mr El Gharniti states that he is: [12]

   “…sincerely remorseful for my irresponsible actions regarding my driving record. I accept full responsibility and there is no excuse for my actions. I did have a faulty odometer in my Mercedes…that showed I was going slower than my speed actually was & wasn’t aware of until recently. It’s no excuse, however I just wanted to point this out. I do recognise that my past actions have been a negative impact on my application, but I believe I am of good character, I just made a few mistakes which I am rectifying now. My family comes first, my 2 young children and wife are extremely important to me and making sure they are looked after”.[13]

   [11]         Exhibit 1, T Documents, T7, page 166, Statutory Declaration of Mr El Gharniti dated 11 February 2017; T9, page

   173, Statutory Declaration of Mr El Gharniti dated 12 April 2017.

   [12]         Exhibit 1, T Documents, T9, pages 173-174, Statutory Declaration of Mr El Gharniti dated 12 April 2017.

   [13]         Exhibit 1, T Documents, T7, page 166, Statutory Declaration of Mr El Gharniti dated 11 February 2017; T9, page

   173, Statutory Declaration of Mr El Gharniti dated 12 April 2017.

7. In addition to his statutory declarations Mr El Gharniti provided the DIBP with character references from his wife, Eve El Gharniti, as well as from Khalid Kammouss, Radwang Saoudy and Darren Thompson.[14]

   [14]         Exhibit 1, T Documents, T9, pages 171-183, Material provided to the DIBP by Mr El Gharniti.

8. Mrs El Gharniti declared that:[15]

   (a)she has been married to Mr El Gharniti for 7 years and that they have 2 children;

   (b)Mr El Gharniti is a “fantastic father”, a “wonderful person” and she is “lucky to have him”;

   (c)she is aware of his speeding history and Court appearance and that it is “totally out of character” for him to be in trouble and they are disappointed that he had to face court over a misunderstanding;

   (d)Mr El Gharniti had been having trouble with his odometer which they did not realise at the time of the speeding offences;

   (e)Mr El Gharniti has helped her during a difficult time arising from her son’s health issues; and

   (f)she wanted to “reinforce what a genuinely wonderful person Hassan is and how important he is to our family”.

   [15]         Exhibit 1, T Documents, T9, page 175, Statutory Declaration of Eve El Gharniti dated 12 April 2017.

9. Khalid Kammouss declares that:[16]

   (a)he is a nurse and has known Mr El Gharniti for a few years;

   (b)he shares family outings and sports with Mr El Gharniti;

   (c)he has found Mr El Gharniti to be reliable when it comes to family and friendship responsibilities;

   (d)he is aware of Mr El Gharniti’s traffic offences and the circumstances behind the Court appearance and “believes he is not the type of person that wants to make issues or disturbance”; and

   (e)Mr El Gharniti “is a very hard working person providing life and joy”.

   [16]         Exhibit 1, T Documents, T9, page 177, Statutory Declaration of Khalid Kammouss dated 29 March 2017.

10. Radwang Saoudy declared that:[17]

    (a)he has known Mr El Gharniti for two years and he has become a “very close friend”;

    (b)Mr El Gharniti “is a very honest, generous, hospitable and caring person”;

    (c)he sees Mr El Gharniti weekly and their children often play together;

    (d)Mr El Gharniti has introduced him to his Australian colleagues and has a good network of friends and is hard working; and

    (e)Mr El Gharniti “has embraced Australian customs and way of life”.

    [17]         Exhibit 1, T Documents, T9, page 179, Statutory Declaration of Radwang Saoudy dated 12 April 2017.

11. Darren Thompson declares that:[18]

    (a)he has known Mr El Gharniti for two years;

    (b)Mr El Gharniti is a “great dependable friend” and his work colleague;

    (c)he knows Mr El Gharniti “very well”;

    (d)he is aware of Mr El Gharniti’s traffic offences;

    (e)he is aware Mr El Gharniti had trouble with his speedometer “which is a shame”; and

    (f)Mr El Gharniti’s is a “responsible character with [a] good nature” and “is a family man working hard to look after his children & wife”.

    [18]         Exhibit 1, T Documents, T9, page 182, Statutory Declaration of Darren Thompson dated 12 April 2017.

12. Mr El Gharniti was advised on 4 July 2017 that the application for Australian citizenship by conferral had been refused on the grounds that he was not of “good character” because (“DIBP Decision”):[19]

    (a)his failure to observe and obey traffic laws since 2011 “reflects a lack of respect for the rights and liberties of all Australians who share the road”; and

    (b)he failed to demonstrate the he could distinguish between right and wrong and had not demonstrated enduring moral qualities over a very long period of time.

    [19]         Exhibit 1, T Documents, T2, pages 6-16, Notification of decision to refuse an application for Australian citizenship

    application by conferral and decision record dated 4 July 2017

13. On 26 July 2017 Mr El Gharniti sought a review of the DIBP Decision by this Tribunal.[20]

    [20]Exhibit 1, T Documents, T1, pages 4-5, Application for Review of Decision dated 26 July 2017.

    ISSUE FOR DETERMINATION

14. The issue for determination by the Tribunal is whether Mr El Gharniti is of “good character” for the purposes of section 25(2)(b)(iii) of the Act.

15. The Tribunal has jurisdiction to review the DIBP Decision pursuant to section 52(1)(c) of the Act.

    LEGISLATIVE REQUIREMENTS

16. Pursuant to section 21(2) of the Act, a person is eligible to become an Australian citizen if, among other things, the person is of good character (section 21(2)(h)).

17. Pursuant to section 24 of the Act:

    (1)  If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

    Note:          The Minister may cancel an approval: see section 25.

    (1A)  The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

18. Pursuant to section 25 of the Act the Minister may, by writing, cancel an approval given to a person under section 24 if the person is “not of good character”.

    IS MR EL GHARNITI “OF GOOD CHARACTER”?

    What does “good character” mean?

19. The term “good character” is not defined in the Act.[21] The Full Federal Court in Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 (“Grass”) noted that the absence of a definition meant that (emphasis added):

    [60] … Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion. This appeal does not raise for consideration the proper construction of the term “good character”, but it is important to note the absence of a definition and, again, the legislative decision to leave room to the repository of the cancellation power to reconsider a range of events and conduct connected with the person who has been granted a citizenship approval.

    [21]Unlike in the Migration Act where section 501(6) sets out a list of matters which result in a person not passing the “character test” and being exposed to having her or his visa cancelled under the Migration Act; Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, at [60].

20. The Minister referred the Tribunal to the Citizenship Policy (2016) which provides guidance on the interpretation of, and the exercise of powers under, the Act. The Tribunal is not bound to apply the Citizenship Policy, but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[22]

    [22]Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.

21. Brennan J explained the relevance of an adopted policy to decision-making in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 (“Drake (No 2)”):

    Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.

22. The Full Federal Court in Hneidi And Others v Minister for Immigration and Citizenship (2010) 265 ALR 292 set out the four propositions which emerge from Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (“Drake”) when considering the entitlement of an administrative decision-maker to take into account a statement of governmental policy:

    [41] …The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.

    [42] Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.

    [43] Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.

    [44] Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of “government or Ministerial policy” to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:

    “… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion.”

23. In Drake, Brennan J (as President of the AAT) noted that:

    “… an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application”[23]

    “The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[24]

    Further, consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision… and one of the most useful aids in achieving consistency is a guiding policy.[25]

    [23]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.

    [24]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.

    [25]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.

1. The Tribunal is not aware of any “cogent reason” why it should not take the Citizenship Policy into consideration.

2. Chapter 11 of the Citizenship Policy provides guidance on the administration of the “good character” provisions under the Act and to define, for administrative purposes, the meaning of “good character”. In summary the Citizenship Policy advises that “good character” is to be objectively assessed by reference to “enduring moral qualities” such as being able to distinguish right from wrong, and behaving ethically, legally and honestly in accordance with Australian rules and values. The Citizenship Policy provides more fully as follows (emphasis added):

   “It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis that an applicant is, or is not, of good character.”[26]

   [26]Citizenship Policy (2016) Chapter 11, page 144.

   “Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):

   Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

   In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:

   ·characteristics which have been demonstrated over a very long period of time

   ·distinguishing right from wrong

   ·behaving in an ethical manner, conforming to the rules and values of Australian society.

   The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.

   This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.

   In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):

   The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State.”[27]

   [27]Citizenship Policy (2016) Chapter 11, page 145.

   “Drawing from the definition outlined in Definition of good character, an applicant of good character would:

   ·     respect and abide by the law in Australia and other countries

   ·     be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)

   ·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:

   ·providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications

   ·involvement in bogus marriage

   ·concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship

   ·involvement in Centrelink or Australian Tax Office fraud

   ·giving false names and/or addresses to police

   ·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)

   ·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia

   ·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people

   ·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide

   ·not be the subject of any extradition order or other international arrest warrant

   ·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and

   ·not be the subject of any verifiable information causing character doubts.”[28]

   “In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

   ·would a person of good character have behaved the way the applicant did

   ·what is there to demonstrate that the applicant has upheld and obeyed the law

   ·has the applicant behaved in accordance with Australia's community standards

   ·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.”[29]

   [28]Citizenship Policy (2016) Chapter 11, page 147.

   [29]Citizenship Policy (2016) Chapter 11, pages 149-150.

3. The main circumstances which the Minister contends give rise to a finding that Mr El Gharniti is not of good character are Mr El Gharniti’s:[30]

   (a)failure to disclose his Liquor Act Offence and traffic offences in his Citizenship Application;

   (b)repeated speeding offences which the Minister submits indicates a preparedness to disregard Australian laws; and

   (c)history of committing other offences, including the Liquor Act Offence and Public Urination Offence; and

   (d)lack of evidence of rehabilitation and positive change subsequent to his offences.

   [30]       Exhibit 2, Minister’s Statement of Facts, Issues and Contentions dated 25 January 2018, para 4.

   FAILING TO DISCLOSE OFFENCES IN CITIZENSHIP APPLICATION

4. Section 39 (a) of the Citizenship Application asked that Mr El Gharniti indicate yes or no to whether or not he had “been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions).” Mr El Gharniti ticked “No”.

5. Mr El Gharniti told the Tribunal that it was a “mistake” and said his wife does his paperwork on his behalf. Mrs El Gharniti told the Tribunal that she had helped her husband complete his application and that they did it online together but that they had forgotten he pleaded guilty in relation to the Liquor Act Offence, because they never really considered that he was guilty, and that they did not think the traffic offences needed to be declared as they did not proceed to a court hearing.

6. However, upon questioning at the hearing Mr El Gharniti confirmed that:

   (a)he did check the answers that his wife had entered in his citizen application form;

   (b)it was his signature on the form;

   (c)he understood that the form included a warning that it was an offence under section 50 of the Act to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to the application; and

   (d)he had declared that the information he had supplied in the form was complete, truthful and correct in every detail.

7. Mr El Gharniti also said that he had misunderstood how to answer the question in his Citizenship Application because the traffic offences had not progressed to court although he acknowledged that he had been found guilty of those offences. Even if Mr El Gharniti considered that the question only required him to indicate traffic offences which had proceeded to court it does not explain why he made no reference to the Liquor Act Offence. The Secretary also pointed out that at the time of the Citizenship Application, Mr El Gharniti was still under a 12-month good behaviour bond as a result of his extensive traffic offences.

8. The Tribunal acknowledges that at a subsequent interview with a DIBP assessor on 15 December 2016 that Mr El Gharniti informed the officer of his offences.[31]

   [31]         Exhibit 1, T documents, T7, page 162, Citizenship appointment containing handwritten notes by DIBP assessor

   dated 15 December 2016.

9. However, the Tribunal does not accept that Mr El Gharniti made a mistake or that he forgot about his Liquor Act Offence when completing his initial citizenship form and no adequate explanation was provided. The conclusion the Tribunal draws is that Mr El Gharniti was attempting to conceal his offences from the Australian government.

   MR EL GHARNITI’S TRAFFIC OFFENCES

10. Mr El Gharniti’s traffic history is quite extensive, particularly for somebody who has only been in Australia for a relatively short period of time. Between March 2011 and February 2017 Mr El Gharniti:

    (a)incurred 8 speeding offences resulting in loss of demerit points and monetary fines;

    (b)drove with an expired license which resulted in a fine;

    (c)drove using a hand-held mobile phone which resulted in a loss of demerit points and a fine;

    (d)was warned twice by the Department of Transport and Main Roads regarding his accumulation of demerit points;[32] and

    (e)after the warning letter dated 5 November 2013, committed 6 more speeding offences.

    [32]         Exhibit 1, T documents, T7, pages 1164-165, Traffic record.

11. Mr El Gharniti committed another speeding offence only one week after the good driving behaviour bond expired.

12. Mr El Gharniti told the Tribunal that his first traffic offence happened because he was lost and needed to use the map on his phone. He said he “had to do it”. Mr El Gharniti then tried to say that he was not holding the phone at the time and that the police did not believe him and told him that “we don’t lie in Australia”. Mr El Gharniti believes that he had done nothing wrong on that occasion.

13. In relation to the speeding offences Mr El Gharniti told the Tribunal he agreed it was serious but then provided an excuse that he had a new car and that it was difficult for him to know how fast he was going and that he had separated from his wife at the time and was under stress. However, the Tribunal does not consider that these reasons provide him with an excuse for repeatedly ignoring the traffic speed limits. Having been confronted with having to acknowledge to the DIBP assessor that he had traffic offences, Mr El Gharniti tried to excuse his conduct again by indicating that he had a problem with his odometer. He provided the Tribunal with an invoice to show that he had obtained a quote to replace the odometer in March 2017 and that he purchased a second-hand odometer on 23 October 2017. Leaving aside the fact that an odometer tracks distance and not speed, which Mr El Gharniti did not seem to appreciate when questioned at the hearing, there was no adequate explanation provided for why it took so long for Mr El Gharniti to replace his odometer or speedometer given that his speeding offences commenced back in 2013.

14. Mrs El Gharniti gave evidence that she was aware the odometer was not working but was unable to recall when the issue was first detected. The only other corroborating evidence regarding a potential problem with his odometer or speedometer is the evidence given before the Tribunal by Mr Thompson that he and Mr El Gharniti noticed when they were working to and from Noosa in around December 2016 that the speedometer may not have been working. However, this is more than 12 months after 2015, when Mr El Gharniti committed 5 speeding offences. The Tribunal considers that if someone had a genuine belief that they had not been speeding at the time, they would have checked to see if there was an issue with his odometer or speedometer a lot earlier than March 2017. Further, having found out that he had a faulty odometer in March 2017, Mr El Gharniti continued to drive the car for another 7 months before replacing it.

15. In relation to driving with an expired license, Mrs El Gharniti told the Tribunal this was her fault because it was her job to pay the bills and that she had forgotten to renew it although she did acknowledge that Mr El Gharniti should have checked this himself

    LIQUOR ACT OFFENCE

16. In relation to the Liquor Act Offence Mr El Gharniti did not agree with the police report and said he had a misunderstanding with the bouncer of the nightclub. Mr El Gharniti says he was holding a cigarette but that it was not lit. He said he did not want to throw it out. Mr El Gharniti says the bouncer did not allow him the opportunity to explain and then twisted his hand back and injured his shoulder causing him to be unable to work for a week.

17. When questioned, Mr El Gharniti admitted that he had not seen a doctor despite having sustained such a significant shoulder injury and there was no corroborating evidence of this offence by the bouncer. When queried as to why he pled guilty Mr El Gharniti said that he could not afford lawyers and did not want to spend time with a court case. There is simply no evidence to suggest that what was written on the police report was incorrect and the Tribunal notes that Mr El Gharniti did not proceed with making a complaint about the bouncer to the police. In the circumstances there is no reason for the Tribunal to doubt the accuracy of the police report.

    OTHER POLICE WARNINGS

18. In addition to the traffic offences and Liquor Act Offence, Mr El Gharniti has also been fined for public urination and has been questioned twice regarding what he was doing in public places and cautioned.

19. Mr El Gharniti again disputed the police report regarding whether he was drinking in the street. Mr El Gharniti said he met people he did not know, one of them had drinks and he was walking to this person’s house when the police came. Mr El Gharniti said he did not know the bottle was there at the bus stop and it was not his. Again, there is no evidence to corroborate Mr El Gharniti’s version of events and the fact that Mr El Gharniti was cautioned by police is not something that happens to most people.

20. In relation to the urination offence, Mr El Gharniti again disputes the police report and says that he did not urinate near a carpark and that the police did not see him urinating. He says he was waiting outside a public toilet in a long queue but needed to go to the toilet immediately and so went near a jobsite which was in the dark. He says the Police asked him what he was doing and he told the truth that he had to go to the toilet. Again, the Tribunal sees no reason to dispute what is recorded in the police report and Mr El Gharniti provided no corroborating evidence of his version of events.

    CONTENTIONS

    Minister’s Contentions

21. The Minister submits that:

    (a)Mr El Gharniti has no clear insight into his offending and has not accepted any responsibility for his actions, continuing to blame external factors;

    (b)the Tribunal should accept the official records of facts;

    (c)Mr El Gharniti’s explanation for his failing to indicate his offences in his citizenship application form was unconvincing and that he had taken no responsibility for it and instead blamed his wife;

    (d)the character reference provided by Mrs El Gharniti should be given little weight because she is not independent;

    (e)the character references provided by Mr Kammouss and Mr Sauodyaoudy should also be given little weight.

22. The DIBP submits that Mr El Gharniti has failed to show enduring moral qualities of a prospective citizen, failed to obey laws, and as a result, has not acted in accordance with community expectations.

    Mr El Gharniti’s Contentions

23. Mr El Gharniti told the Tribunal that he had made mistakes and that no one was perfect. He apologised and said that he was having a hard time during his period of offending with his children, had difficulties with his wife and because he had not seen his mother for 6 years who lives in Morocco.

    CONSIDERATION

24. What is apparent is that there is a pattern of response by Mr El Gharniti where he disputes each and every offence, provides an excuse for the committal of that offence and in particular, accuses the police of inaccurate reporting. In addition he indicates that he was somehow being picked on and as a result he does not take any responsibility for any of the offences for which he has been charged and fined. Mr El Gharniti does not appear to appreciate the seriousness of his actions. The Tribunal finds that this shows a complete disregard for Australia’s laws.

25. Such conduct, in its totality, and taking into account his failure to shoulder responsibility for his offending, is very serious and has the potential to undermine the Government’s ability to keep Australians safe from harm, particularly on the roads.

26. These factors weigh against a finding that Mr El Gharniti is a person of good character.

27. What makes Australia different from many other countries is that there is an adherence to the rule of law and an expectation by the community that the laws will be followed. The Citizenship Policy provides that abiding by the law and being truthful are relevant factors to be taken into account. The Tribunal considers that the community would regard that Mr El Gharniti’s conduct, and his excuse for such behaviour makes him not of good character.

28. The Minister contends that the character references should be given little, if any, weight and referred the Tribunal to Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022, where the Tribunal remarked that the:

    [109] ...references are subjective views of persons having contact with Mr Kiokata, and should not be given the same weight that should be accorded to Mr Kiokata's own actions and conduct which has been set out in substantial detail above".[33]

    [33]Applied in the recent decision of Grafton and Minister for Immigration and Border Protection (2016) AATA 981 at [72].

29. Mr Kammouss told the Tribunal that he had knowledge of Mr El Gharniti’s speeding tickets but made no reference to his driving with an expired license. Mr Kammouss also seem to think it was okay to have speeding tickets because after all he said he had also incurred speeding fines and had lost points and said it happens to everyone. In relation to the Liquor Act Offence Mr Kammouss said that he had been very surprised and shocked to hear that Mr El Gharniti had had to be restrained and said, “maybe the security guard was in a bad mood”.

30. Mr Sauody made no acknowledgement of being aware of Mr El Gharniti’s traffic history in his statutory declaration however before the Tribunal he said Mr El Gharniti had told him about the speeding fine and that he had a problem with his odometer but he could not remember when he was told and otherwise did not know anything else about the situation.

31. The Tribunal agrees that the character references do not carry much weight for the reasons given in Kiokata. Further, the Tribunal notes that Mr Kammouss did not seem to appreciate the seriousness of the offences committed and appeared to be defending Mr El Gharniti and making excuses for him.

1. Mr El Gharniti’s conduct demonstrates a disregard for the laws of this country and is not conduct becoming of someone with good character. Disregarding the law is a serious flaw.

2. The Minister’s representative told Mr El Gharniti at the hearing that if, after a period of time, he had a clean record and did not commit any more offences, he could reapply for Australian citizenship.

   DECISION

3. The Tribunal has found that Mr El Gharniti is not currently of “good character” and therefore does not meet the eligibility criteria as per section 21(2)(h) of the Act. Mr El Gharniti therefore is not eligible for citizenship under section 24 of the Act.

4. The decision under review is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]..............................................

Associate

Dated: 26 March 2018

Date of hearing:	21 February 2018
Applicant:	In person
Advocate for the Respondent:	Ms Rachel Noronha
Solicitors for the Respondent:	Clayton Utz

[4]Exhibit 1, T Documents,