Nudelis and Minister for Immigration, Multicultural and Indigenous Affairs
[2004] AATA 636
•21 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 636
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/1399
GENERAL ADMINISTRATIVE DIVISION ) Re MRS ELENA NUDELIS Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President) Date21 June 2004
PlaceMelbourne
Decision The decision of the Tribunal is that the decision under review is set aside and the matter is remitted to the respondent with the direction that the visa not be refused on character grounds.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Immigration – Sublcass 139 visa (skilled-designated area – sponsored) – whether of good character – false and misleading information – decision set aside.
Migration Act 1958 – s501
REASONS FOR DECISION
21 June 2004 Mr S P Estcourt QC., (Deputy President) 1. In this case the Tribunal finds in favour of Mrs Nudelis’ application to set aside the Minister’s decision to refuse to grant her daughter Marina Blyakhman a skilled and designated area sponsored visa to allow her to join her family in Australia.
2. The reason for the decision is that having examined the character concerns held by the Minister in respect of Mrs Blyakhman, the Tribunal finds that each has been satisfactorily explained. There being no other suggestion that Mrs Blyakhman is not of good character, the Tribunal finds that she passes the character test posed by s501 of the Migration Act 1958 (“the Act”).
3. The visa applicant was born as Marina Nudelis in Mariupol in the Ukraine on 26 December 1968. She is the daughter of the review applicant.
4. On 8 August 1987 the visa applicant married Michael Blyakhman. On 10 August 1989, their first child Marguerite was born.
5. Until 1991 the visa applicant and her family, including her parents and her brother Alexander and his family lived together in the Ukraine. They then migrated to Israel, where they lived together until 1998. On 2 December 1993, Miriam, the second daughter of the visa applicant and her husband, was born in Israel.
6. The visa applicant had undertaken some training in cooking while living in the Ukraine in 1989 and 1990 and after Miriam was born, the visa applicant decided to undertake further training as a cook. Her evidence is that she attended a cooking school operated by a private education provider, Goldberg & Seplyarsky Ltd in Tel Aviv from January 1994 to June 1995. The fact of her attendance at this School of Cook Mastership operated by Goldberg & Seplyarsky Ltd is one of three matters in respect of which the respondent has concerns about the visa applicant’s character.
7. Following this course, the visa applicant evidence is that she commenced work in the cafeteria at Denber Paints as a cook. Whilst the question of whether she was in fact employed by Denber Paints was originally a matter of concern to the respondent, it appears that any reservations in this regard were dispelled after the visa applicant submitted a letter from Denber Israeli Paints certifying that in May 1996 Denber Paints Technologies Ltd was renamed to Denber Israel Paints Ltd. In any event, for whatever reason, the question of the visa applicant’s employment at Denber Paints was not a matter upon which her visa refusal was based and was not an issue in the case before the Tribunal.
8. On 26 July 1997, the visa applicant’s cousin, Elizabeth Sawicki died as a result of injuries she sustained when a bridge over the Yakon River collapsed as she and other participants in the Maccabeah Games were walking across it for the opening ceremony of those games.
9. Klara Veksler, who was the mother of Ms Sawicki is the sister of the review applicant and thus the aunt of the visa applicant. She was devastated by the loss of her daughter and being unable to cope, the review applicant and her husband decided to move to Australia to assist her, thus separating the immediate family of the visa applicant for the first time.
10. In 1999, the nephew of the visa applicant came to Australia as a student and later her brother, Alexander, his wife and their other child also came to live in Australia leaving the visa applicant the only member of her family not living in Australia.
11. In yet another blow to the visa applicant’s family, in November 2000, Klara Veksler’s granddaughter, Monique committed suicide, being unable to come to terms with the death of her mother Elizabeth Sawicki.
12. It was shortly prior to this event that in August 2000, the visa applicant submitted an application for general skilled migration to Australia with her nominated occupation being that of a cook.
13. In support of her application, the visa applicant submitted, among other things:
(a)a diploma certificate from the School of Cook Mastership for Basic Cook-Culinary and Supplement to Diploma; and
(b)an International English Language Testing Systems (IELTS) test report form dated 24 August 2000.
14. In checking the documents submitted by the visa applicant and at an interview with the visa applicant, the following matters, (which remain of concern to the Department), were identified:
(a)officers were unable to contact the cookery school as one of the phone numbers on the diploma was disconnected and the other was connected to a dental school. A field visit to the address was unable to locate the school and enquiries made at the address indicated such a school had not operated there, but that Goldberg & Seplyarsky had operated a metalsmith business; and
(b)during her interview, which was on 16 November 2000, it was noted by Abdallah Azar that the visa applicant was unable to communicate in English and was unable to read or write simple text.
15. By letter dated 2 May 2001, the Department requested the visa applicant, amongst other things, to provide a letter or statement from the Education Department or the Municipality or from the Ministry of Education confirming that the “School of Cook Mastership” had existed in Israel.
16. In response the visa applicant submitted a letter dated 25 July 2001 from the Education & Culture Administration Section of the Tel Aviv – Yaffo Municipality stating that between 1992 and 1998 the municipal taxes for the address of the school at 16 Chernichovsky Street, Tel Aviv had been paid by the company Goldberg & Seplyarsky Ltd engaged in professional cooking courses.
17. By a letter dated 24 April 2002, the Department advised the visa applicant that it required an up to date certificate from the Municipality (Education & Cultural Division) showing the name of the person issuing the letter and the wet stamp of the Municipality.
18. Additionally, the letter of 24 April 2002 required the visa applicant to provide up to date results of a supervised IELTS (English test) and for that purpose required her to contact the Australian Embassy in Tel Aviv to make arrangements through them to re-sit the IELTS test.
19. In response to this request for information and further action, the visa applicant forwarded a statutory declaration declaring that she had attended a cooking course conducted by Goldberg & Seplyarsky Ltd, but she was unable to provide anything further from the Education and Culture Administration Department of tha Municipality, only a letter from the Department of Arnona Tax Collection of the Municipality dated 6 August 2002 which stated that Department could not inform the visa applicant of the details requested since she was not included in the account, and was not the owner of the unit concerned.
20. Insofar as the request to re-sit the English test was concerned, the visa applicant responded by pointing out that she had already sat and passed the test, and that her immigration booklet provided that results need only be not more than 12 months old. She pointed out that there was no reference to providing an up to date test during the post-application lodgement process.
21. Ultimately, the visa application was refused on the grounds that the visa applicant had submitted a false document in relation to the School of Cook Mastership, Diploma Certificate from Goldberg & Seplyarsky, that she had submitted a falsified letter from the Municipality dated 25 July 2001 in relation to the operations of Goldberg & Seplyarsky Ltd, and that she had submitted a new letter from the Municipality dated 6 August 2002 that was completely different in context. The third or perhaps fourth ground for the refusal was that it was said the visa applicant misled an officer at interview by falsely claiming on 3 June 2002 that her educational qualifications, that is her English language test results, were genuine.
22. Insofar as the certificate from the School of Cook Mastership is concerned, the visa applicant herself gave evidence that she attended the course and obtained the certificate and her mother gave evidence that during the 18 month period in which the visa applicant attended the cooking school, she looked after her grandaughter Miriam each day and her husband would drive Marguerite to school and pick her up at the end of the day. Her mother also confirmed that the visa applicant commenced to work at Denber Paints as a cook when she finished the course.
23. The visa applicant’s evidence in this regard was also supported by that of her brother Alexander, who, although he could not remember the name of the school confirmed that she undertook the training and that after she finished her course she got a job working in the kitchen of a factory.
24. The visa applicant’s evidence was further corroborated by evidence from Klara Veksler who visited Israel in 1995, and recalled that the visa applicant was studying cooking and returned to Israel in 1997 when the visa applicant was working in the cafeteria of a factory making kosher foods.
25. If there was doubt in the Tribunal’s mind concerning the visa applicant’s attendance at and graduation from the Goldberg & Seplyarsky School of Cook Mastership it was dispelled by independent evidence given by the former accountant for the company, Mr Igal Sadovsky. His unshaken and uncontradicted evidence was that he acted as the accountant on behalf of Goldberg & Seplyarsky Ltd from 1993 to 1997, that the company offered courses including cooking, alternative medicine, locksmith works and welding, that upon completion of the courses graduation certificates were conferred at special graduation ceremonies and that those certificates were accepted by employers as professional qualifications in Israel. Mr Sadovsky also stated that Goldberg & Seplyarsky Ltd ceased operating due to economic difficulties in 1997.
26. Mr Sadovsky’s evidence not only confirms the fact of the course being operated and the issue of certificates which were accepted by employer’s in Israel, but it also explains the mystery of the field trip conducted by Abdallah Azar to the address at 16 Chernichovsky Street Tel Aviv at which time neighbours reported that Goldberg & Seplyarsky had run a metal smith’s business some years ago.
27. In the face of all this evidence, the Tribunal is persuaded beyond any doubt that the visa applicant attended the School of Cook Mastership, and graduated from that school with a diploma as claimed and that the documents provided to the Department in that respect were genuine documents.
28. On the question of the legitimacy of the letters of 25 July and 6 August 2002 from the Tel-Aviv - Yaffo Municipality, there is no evidence to contradict the visa applicant’s statements that these letters were provided as obtained from the Municipality on occasions over 12 months apart.
29. It was suggested by Mr Azar in material before the Tribunal that the letter of 25 July 2001 was not genuine because it did not have the name of the person issuing the letter or the wet stamp of the Municipality. The Tribunal notes however, that the second letter, that of 6 August 2002, which is accepted as genuine inasmuch as it is contended on behalf of the respondent that it is in a different context to the earlier letter and is therefore evidence that the earlier letter was false, does not itself, in its Hebrew original, carry the wet stamp of the municipality. It does carry the name of the person issuing the letter, one Karmit Yaakov, but it was explained by the visa applicant six weeks before the date of that letter, in a letter to the Australian Embassy in Athens dated 28 June 2002, detailing what, to use the vernacular, one might call the “bureaucratic run around” she was given when she visited the Municipality to try and obtain confirmation of the 25 July 2001 letter, that she in fact spoke to a person called Karmelit. Thus, not surprisingly, the unhelpful letter from the Tax Collection department, (notably a different department to that issuing the 25 July 2001 letter which was the Education & Cultural Administration Department), carries the notation at the top of the letter “attended by Karmit Yaakov”,(emphasis added).
30. In the circumstances, the Tribunal is comfortably satisfied that the two letters provided by the visa applicant were genuinely obtained in an attempt to satisfy the Department’s requirements and are both genuine documents.
31. The remaining matter of concern to the respondent is the genuineness of the English language test results obtained by the visa applicant.
32. The International English Language Testing System report, which was provided to the visa applicant by the British Council in Tel Aviv, is not suggested as being other than a genuine document. A letter dated 24 August 2000 from the British Council encloses the test report form for the IELTS test recently taken by Ms Marina Blyakhman of 122/7 Peri Megadim Street, Ofakim, the visa applicant’s address. There is no evidence that the documents are forged, which were they, one imagines would have been easily obtained by checking with the British Council
33. The suggestion of dishonesty on the part of the visa applicant arises because Mr Azar noted, when he interviewed her on 16 November 2000, some three months after the test was taken, that she was unable to communicate in English and was unable to read or write simple text. Thus the suggestion appears to be that someone else sat the test for the visa applicant.
34. The Tribunal notes that Mr Azar included in his report to Mr Long of the Australian Embassy in Athens, the comment that the visa applicant related her inability to communicate in English “to her being nervous and of the fact that she had not used English recently”. The visa applicant confirmed this explanation in evidence and although cross-examined on the point, she was not shaken. She also gave evidence that she had “swatted” to pass the test and after the test she had not had an opportunity to continue to practice her English with native speakers.
35. Almost two years after the test, on 3 June 2002, an Embassy file note signed by the senior migration officer for the Australian Embassy in Athens Mr Guy Cooper, expressed doubts about the visa applicant’s English language ability being as reflected in her IELTS test results. He said “there are gaps in understanding and her spoken English, although reasonable, is not particularly strong” (emphasis added). This statement however, is directly contradictory of a report in an email to Mr Cooper from Mr Azar on 10 April 2002 only 6 weeks earlier, which stated “she was able to say only a few basic words in English … However, when she was given an English text to read, she read it reasonably well, compared to the poor performance in the speaking and comprehension parts”. (emphasis added)
36. The Tribunal is satisfied that the test results provided by the visa applicant are the genuine results of a test sat by her. She provided the Department with a lengthy explanation as to the process she underwent to sit the test, and the Tribunal notes that for registration she had to obtain an identity card by providing a photograph and filling out special forms, and that prior to sitting the examination she was required to present her identity card. It is entirely conceivable that she was nervous at interviews, that she had swatted for her exams and that she had not subsequently had an opportunity to practice her English with native speakers. The observations of Mr Azar and Mr Cooper, which in any event are contradictory, are not to be substituted for the assessment of those who conducted the examination and certified the results. (The Tribunal notes in passing from this issue, that there can now be no doubt about the visa applicant’s proficiency in English. Her lengthy evidence-in-chief and cross-examination were conducted entirely in perfectly good English and without the necessity for the assistance of the Russian interpreter who was present at the hearing).
37. It follows from all that I have said that the Tribunal is more than satisfied that the various concerns expressed by Mr Azar and by Mr Cooper, and ultimately made the bases for the decision to refuse the visa, have, after careful examination and the receipt of additional evidence, been dispelled.
38. Were the Tribunal to be wrong in its decision that the visa applicant has discharged her onus of satisfying the Tribunal that she passes the character test, there could not in the Tribunal’s view be a clearer case for the exercise of the residual discretion under s501 of the Act to nonetheless authorise the grant of a visa. The visa applicant is the only member of her family not in Australia, her mother and her mother’s sister have suffered terribly as a result of the death of Ms Sawicki and the subsequent suicide of Ms Sawicki’s daughter, and the reunion of the family on compassionate grounds would be justified in this case absent the most serious migration misconduct.
39. The decision of the Tribunal is that the decision under review is set aside and the matter is remitted to the respondent with the direction that the visa not be refused on character grounds.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 2 June 2004
Date of Decision 21 June 2004
Counsel for the Applicant Mr Greg Hughan
Solicitor for the Applicant Erskine Rodan and Associates
Counsel for the Respondent Mr Derek Wood
Solicitor for the Respondent Blake Dawson Waldron
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