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

[2019] AATA 5180

Sankey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5180 (4 December 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7523

Re:Joseph Sankey

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:4 December 2019

Place:Sydney

The Tribunal decides that the reviewable decision will be set aside and the matter be remitted to the respondent with the direction that the applicant is of good character.

...............................[sgd]...............................

Deputy President B W Rayment OAM QC

CATCHWORDS

CITIZENSHIP – citizenship by conferral – refusal to approve application for citizenship – not of good character –previous drug and sex offences – applicant imprisoned – where applicant suffered from brain injury at time of offending – first time offending by applicant – no further offending since – where applicant had long and subsequent period of good character – decision set aside and remitted with direction that applicant is of good character

CASES

Regina v Sankey [2002] NSWCCA 135

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

4 December 2019

1. The applicant seeks Australian citizenship. The question is whether he is today of good character.

2. He was born in the United Kingdom in 1949 and immigrated to this country in April 1967 when he was aged 17. Today he is aged almost 70 and has lived here for over 52 years.

3. He served a term of imprisonment from 30 May 2000 until 29 November 2003. A judgment of the NSW Court of Criminal Appeal (‘the Court of Criminal Appeal’) dated 26 March 2002 gives a very clear account of his offending and of his mental health at the time of his offending. It is reported as Regina v Sankey [2002] NSWCCA 135. The Court of Criminal Appeal was constituted by Smart AJ and Studdert J, two very experienced judges. These reasons should be read together with the judgment of his case.

4. It emerges from the judgment that after several years of working in manual occupations, the applicant underwent a four year course and obtained a Diploma in Photography (Science) and worked for a government department for three years. He then completed post-graduate training in London. After his return to Australia in 1976, he was appointed Deputy Director of the Audio Visual Unit at a major Sydney teaching hospital, where he remained for 23 years. In 1999, he suffered a stroke and was retired medically unfit. The stroke may have been related to a brain injury which he suffered during a home invasion in 1995. The brain injury still affected him at the time of his offending in the year 2000.

   APPLICANT’S OFFENDING

5. The offending is detailed in the judgment of the Court of Criminal Appeal. It consisted of several counts of supplying methylamphetamines and other drugs, sexual intercourse without consent, committing an act of indecency, hindering police, and self-administering a prohibited drug. The convictions for his offending led to him being placed on the sex offenders register until recently.

6. His offending was influenced by amphetamines, which he took intermittently on the advice of a doctor to alleviate his depression, and by drinking, which took on the character of binge drinking on occasions. He had right frontal encephalomalacia as a result of the head injury in 1999 which produced moderate deficits in executive function, including, in particular, self-monitoring. He suffered from the death of two partners in succession and his dependence on amphetamines increased markedly during his period of offending. He had post-traumatic stress disorder (PTSD) and depression and began to inject amphetamines daily. A psychiatrist who examined him in 2001 thought that his amphetamine and alcohol use in particular were likely to have exacerbated the underlying difficulties related to his previous brain injury.

7. Those circumstances persuaded the Court of Criminal Appeal to deal more leniently with him than the objective seriousness of his offending may otherwise have suggested. The fact that this was the applicant’s first time in custody was also important to the Court of Criminal Appeal, as was the fact that the applicant was continuing, in gaol, to do useful courses.

   EVIDENCE BEFORE THE TRIBUNAL

8. The applicant told me that the shock of imprisonment caused him to terminate his addiction without any noticeable withdrawal symptoms. On his release in 2003, the applicant obtained work as a volunteer with Cana Communities, a charitable group offering accommodation and help to the homeless.

9. His qualifications in drug and alcohol counselling, obtained in gaol, then became useful when he obtained full time employment with the Matthew Talbot Hostel (‘the Hostel’). The clients at the Hostel include homeless men, often with mental health, drug and alcohol problems. It operates as a crisis accommodation centre. The applicant worked with the Hostel from around 2006 until his recent retirement. He was a support worker and later took on the role of a senior support worker.

10. I heard from one of his work colleagues, a pastoral care officer. When asked whether his conduct ever gave cause for concern she said that it was exactly the opposite. He was always an obliging, affirming person to the men who came there. The applicant had a very frank discussion with the pastoral care officer about his own history including his offending and imprisonment. She said she has never doubted that the applicant is of good character. The pastoral care officer told me that the applicant was, in her opinion, genuinely remorseful about the events which led to his imprisonment in 2000. She has also been offering spiritual guidance to the applicant.

11. The applicant was examined by a clinical and forensic psychologist last year who expressed confidence that he would not come before the courts again. She noted that he had been drug and alcohol free since his release from prison.

    CONSIDERATION

12. The offending for which he was sentenced to imprisonment has been his only offending. He impressed me as a witness of truth with good insight into his offending. His period of offending stands out as the exception in a long period of previous and subsequent good behaviour. He has worked for the poor and marginalised in a conscious endeavour to make up for his past wrongs. I accept that he is now of good character.

    DECISION

13. The reviewable decision will be set aside and the matter remitted to the respondent with the direction that the applicant is of good character.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

..............................[sgd]....................................

Associate

Dated: 4 December 2019

Date(s) of hearing:	6 November 2019
Solicitors for the Applicant:	Morning Star Migration
Solicitors for the Respondent:	Clayton Utz