Guerra and Minister for Immigration and Multicultural and Indigen ous Affairs [2003] AATA 1299 (18 December 2003)

Last Updated: 22 December 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1299

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2003/94

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Carlos Guerra

Applicant

And

Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal

Mr RP Handley, Deputy President

Date 18 December 2003

Place Sydney

Decision

The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Blanca Oliva Hernandez passes the character test pursuant to s 501(6) of the Migration Act 1958.

...............................................

RP Handley

Deputy President

CATCHWORDS

IMMIGRATION - subclass 309 partner (provisional) visa - refusal to grant visa on character grounds - past and present general conduct - character test - examination of the Visa Applicant's immigration history - examination of the Visa Applicant's protection visa claims - held that the Visa Applicant's character is not so deficient to warrant the refusal of entry to Australia - Visa Applicant passes the character test - decision of the Respondent set aside with the direction that the Visa Applicant passes the character test.

Migration Act 1958 ss 499, 501, 501(6)(c)(ii)

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

REASONS FOR DECISION

18 December 2003	Mr RP Handley, Deputy President
Summary

1. The Visa Applicant, Blanca Oliva Hernandez, who is aged 53 and currently lives in Santiago, Chile, applied for a subclass 309 partner (provisional) visa on the basis of her de facto relationship with the Applicant, Mr Carlos Guerra. Ms Hernandez came to Australia on 3 July 1997 on a visitor visa valid for three months. Shortly after her arrival, she applied for a protection visa, which was refused. An appeal was lodged with the Refugee Review Tribunal, but subsequently withdrawn. Two weeks later, Ms Hernandez flew to Chile where she lodged her application for a subclass 309 partner (provisional) visa.

2. The Respondent states that Ms Hernandez provided false and misleading information as to her reasons for coming to Australia and her circumstances at the time of her arrival; she did not leave Australia after the refusal decision was made; and she only left Australia to lodge a further application off-shore. The Respondent therefore refused Ms Hernandez's application for a visa on the ground that she is not of good character. This is the decision to be reviewed by the Tribunal.

Background

3. Mr Guerra was born in Puente Alto, Chile, on 5 April 1949 and is aged 54. He arrived in Australia on 8 May 1970 and became an Australian citizen on 1 August 1975. On 29 March 1971, he commenced a relationship with Kerna Lidra Guerra which ended when they separated in March 1995. They had two children: Brenda Andrea Guerra, born 27 December 1974 and now aged 29, and Walter Javier Guerra, born 23 August 1971 and now aged 32. Mr Guerra has worked as a truck driver and is currently working as a cleaner.

4. Ms Hernandez was born in Cali, Colombia, on 11 June 1950 and is aged 53. In 1964, she commenced a relationship with Octaviode Jesus Pizarro, which ended when the parties separated in 1969. They had two sons: Octavio Enrique Pizarro Hernandez and Ivan Rodrigo Pizzaro Hernandez. Both are married and living in Australia. In 1975, Ms Hernandez commenced a relationship with Gorgonio Forero which ended when they separated in 1995. They had two children: Andriana Forero Hernandez, born 7 April 1973 and now aged 30, and John Jairo Forero Hernandez, born 5 December 1983 and now aged 20.

5. On 3 July 1997, Ms Hernandez and her son John arrived in Australia on visitor visas valid for six months. On her arrival card, Ms Hernandez declared that her intention was to holiday in Australia for 10 days (T p269). On 15 August 1997, she lodged an application for a protection visa for herself and her son (T p6). She stated in the application that she was subjected to extortion by the National Liberation Army ("ELN"), discrimination because of one of her sons' homosexuality, and persecution and attempts on her life because of her political involvement with the Patriotic Union (T p31). On 25 April 1998, a case officer of the Department refused Ms Hernandez's application for a protection visa on the basis that her fears of persecution were not well-founded and that she was not a person to whom Australia owed protection obligations under the Refugees Convention (T p72). On 7 May 1998, Ms Hernandez applied for a review of this decision by the Refugee Review Tribunal ("RRT") (T p89).

6. On 18 August 1998, Mr Guerra met Ms Hernandez at a restaurant in Sydney (T p97) and, on 16 November 1998, they commenced living together (T p97).

7. On 19 July 2001, Ms Hernandez applied for a bridging visa B, permitting her to travel out of and into Australia in the absence of a substantive visa (T p74). She stated that the reason for her application was to allow her to travel to New Zealand with Mr Guerra for a holiday following the death of his mother (T p78). This application was refused on the basis that it would be impede the processing of her refugee appeal. On 19 July 2001, Ms Hernandez withdraw her application to the RRT (T p89).

8. On 3 August 2001, Ms Hernandez departed Australia for Chile. On 7 August 2001, she lodged an application for a subclass 309 partner (provisional) visa at the Australian Embassy in Santiago, Chile (T5 p90). She was interviewed at the Embassy on 4 June 2002. On 4 June 2002, a Senior Migration Officer of the Department wrote to Ms Hernandez stating her that she was considering refusing the application and inviting her to comment (T7 p251). Ms Hernandez's then migration agent responded by letter of 1 July 2002 (T p266).

9. On 27 November 2002, a delegate of the Respondent decided to refuse the grant of a visa to Ms Hernandez on the ground that she is not of good character having regard to her past and present general conduct, and having declined to exercise his discretion under s 501 of the Migration Act 1958 ("the Act"). On 15 January 2003, the Applicant applied for a review of this decision with the Tribunal (T p3).

10. In July 2003, Mr Guerra flew to Chile and stayed with Ms Hernandez until he returned to Australia on 20 October 2003. Mr Guerra and Ms Hernandez were married in a civil ceremony on 10 October 2003.

11. At the hearing, the Applicant was assisted by Ramon Reyes-Gonzales, from L'Amer-Aussies MRF (Multinational Refugees Foundation) Inc, and the Respondent was represented by Greg Peek, Solicitor, of the Australian Government Solicitor's office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the Applicant. At the hearing, Mr Guerra gave evidence in person and Ms Hernandez gave evidence by conference telephone from Chile.

Relevant Law and Policy

12. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:

Having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character;...

14. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations"..

15. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

16. The issue for the Tribunal to determine in this case is, therefore, whether Ms Hernandez is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a subclass 309 partner (provisional) visa. If the Tribunal decides she is not of good character, it must decide whether to exercise the residual discretion under s 501(1) to not refuse the grant of a visa.

Evidence

13. In the early 1990s, Ms Hernandez owned several properties in the city of Armenia in Colombia including a successful "Beauty Academy" and a perfume shop. According to Ms Hernandez, Armenia is a city with a population of about half a million. In about 1994, Ms Hernandez purchased a farm in Genova (about one hour by car from Armenia) for the purpose of growing coffee beans, and appointed her Aunt, Elvia Hernandez and her husband to manage it. Ms Hernandez said she rarely visited the farm because she was busy running her business in Armenia and working for a political party, the Patriotic Union, which she joined in 1994.

14. Because of her dedication to working for the Patriotic Union, Ms Hernandez said she quickly became the person in her local area responsible for reviewing political developments elsewhere in the country. In her protection visa application, she stated her position in the Union was "auditor" but from her description it clearly involved keeping political developments elsewhere under review for the organisation in her local area, and did not involve the duties ordinarily undertaken by an auditor in the sense understood in an Australian context.

15. Ms Hernandez said following the Patriotic Union's success at municipal elections in 1994, there was persecution of members of the Union and many members were killed. In March 1996, Ms Hernandez began receiving threats "from the para-militaries", stones were thrown and shots were fired at her house. ELN (National Liberation Army) guerillas visited her farm and demanded protection money and her youngest son was abused at school because his older brother was a homosexual. The ELN guerillas kept demanding more money, and her youngest son was expelled from school because of pressure from other parents. Things came to a head when, one evening in March 1997 as she was leaving the Beauty Academy with two employees, two men in a white car opened fire on them, killing one of the employees, Orlando Valencia. The police were called and took away the body but could do little else.

16. Ms Hernandez said she left Armenia the same day and went to Bogota. She spent a week there and then left Colombia with her youngest son. They travelled to the United States of America and through many countries in the Asia-Pacific region before arriving in Australia on 3 July 1997. Ms Hernandez had obtained a visitor visa for Australia issued on 30 October 1996 with a view to having a holiday here. When she left Bogota with her son, she was not planning to "go for good" but for a holiday.

17. Ms Hernandez said she did not sell her Beauty Academy before leaving. It was closed after she left. She still owns the farm but has not had any recent contact with anyone in Colombia and is not receiving any income from the farm. Her daughter took care of the perfume shop after Ms Hernandez left but the building subsequently collapsed in the earthquake which took place while she was in Australia. Her daughter moved to another house after Ms Hernandez left and was living with a friend. Ms Hernandez maintained contact with her daughter by email so that they could reassure each other that they were "OK". Her daughter has now left Colombia and is living in Venezuala.

18. In giving evidence, Ms Hernandez also revealed, which she had not done previously, that her two older sons' lives were also then at risk. She said their father, Octaviode Jesus Pizarro, was the brother of Carlos Pizarro who was one of the leaders of the M-19 (Moviemento 19 de Abril) Political Party. Ms Hernandez said she had not revealed this before because at the time she made her protection visa application, her son and daughter were still living in Colombia. She thought if she revealed the family connection in her protection visa application, word might get back to Colombia and she was frightened for her children's safety. Carlos Pizarro was assassinated, as were many members of M-19, and their families persecuted.

19. Her oldest son, Octavio, came to Australia in about 1998 and is now a permanent resident, married with two children. Her second son, Ivan, who was homosexual, is also now in Australia and has subsequently married and has two children. Her youngest son John is no longer included in her visa application because he has married and is now living in Chile.

20. Ms Hernandez was asked about the Incoming Passenger Card she completed on arrival in Australia on 3 July 1997. She said an Italian lady on the plane helped her complete the Card. This lady could only speak Italian and neither of them could speak English, but Ms Hernandez gave the lady her passport to complete the details on the Card and the lady put that Ms Hernandez was intending to stay for 10 days since this was what she put on her own Card. Ms Hernandez did not worry about this at the time.

21. After arriving in Sydney, Ms Hernandez asked a Peruvian lady, Lilian, whom she met in the Beauty Salon near Central Station - the one Ms Hernandez later purchased - whether she could apply for migration to Australia. Lilian told her about applying for refugee status and helped her complete the protection visa application forms. Lilian could speak, read and write in English. She told Ms Hernandez that the forms had to be presented in English so Ms Hernandez had the statement about her claim translated from Spanish into English (T p31)..

22. After lodging the protection visa application, Ms Hernandez was granted a bridging visa with permission to work. She bought the Beauty Salon near Central Station because most of the clients were Spanish speaking and she had owned and run such a salon in Colombia. A friend lent her $10,000 to make the purchase.

23. About a week before her interview with a departmental officer in relation to her protection visa application, a Chilean friend, Isabel, introduced Ms Hernandez to Mr Reyes-Gonzales. He went to the departmental interview with Ms Hernandez although he did not help her with any of the documents. When the Department asked her to provide documents to support her claim, she emailed her daughter in Colombia and asked her to obtain documents to provide proof of her claim. Ms Hernandez could not remember whether anyone apart from the Department had asked her to provide supporting documents.

24. Ms Hernandez said the documents came from Armenia, from the different offices at which she had reported her life being in danger. She sent the originals to the Department in the post - but unfortunately not by registered post -and they were never received. Ms Hernandez said she therefore provided the Department with copies. She insisted that the documents are genuine and said she had not had to pay any money to obtain them. The claims made in her protection visa application are true although she acknowledged that sometimes she gets nervous and confused when discussing them.

25. When Ms Hernandez's protection visa application was refused on 25 April 1998, she appealed to the RRT because the letter informed her that she could. Mr Reyes-Gonzales helped her prepare for the appeal.

26. Ms Hernandez met Mr Guerra on 18 August 1998 at a Latin-American social club at Maroubra. When they first met, Ms Hernandez told Mr Guerra that she was a refugee and had applied for a refugee visa but not the detail of her claims. Mr Guerra said he was aware that Ms Hernandez had permission to remain in Australia and a right to work and that she was running a successful hairdressing business at Central Station. At that time, he knew nothing about the immigration system. Ms Hernandez said for the next two months or so, they went out together every day and then started living together in October 1998, first in Maroubra and then with Mr Guerra's mother.

27. On 13 December 2000, Mr Guerra's mother committed suicide. Mr Guerra was very depressed in the period following this and he and Ms Hernandez attended a psychologist for grief counselling (T p82). The psychologist suggested that they should have a holiday. On 26 March 2001, Mr Guerra and Ms Hernandez made statutory declarations (T pp78 and 80) in support of an application by Ms Hernandez for a bridging visa B to enable her to accompany Mr Guerra to New Zealand for a holiday and then return to Australia. The application for the bridging visa was signed by Ms Hernandez on 6 May 2001 although not lodged with the Department until 19 July 2001.

28. Ms Hernandez said they obtained advice about this application form from a lady who said she was a migration agent. The Tribunal notes that in answer to question 29 of the application for the bridging visa B, it was stated that J Robertson, Migration Agent 86402, had assisted in completing the form. Ms Hernandez said she had been unable to make contact with Mr Reyes-Gonzales at that time.

29. Mr Guerra said about four weeks before Ms Hernandez left Australia, he had been to see a friend who was detained in Villawood Detention Centre. Following this, he had a discussion with Ms Hernandez about her protection visa application and, for the first time, he realised the nature of her immigration problems. She did not mention any bogus or misleading documents to him. However, she did not understand the technical terms in the letter and was worried that her application would not succeed.

30. Mr Guerra therefore suggested that Ms Hernandez should withdraw her application to the RRT and go to Chile for a while to relax where she could stay with his sister. She could then lodge an application to return to Australia as his de facto spouse. The migration agent who assisted with Ms Hernandez's application for a bridging visa B helped her draft the letter of withdrawal to the RRT. At about this time, Ms Hernandez also contacted Mr Reyes-Gonzales who advised her to attend the RRT hearing. However, she had already purchased a return air ticket to Chile and she did not want to go through another interview at the RRT which she would find very stressful.

31. Ms Hernandez said before she left for Chile, she and Mr Guerra discussed their future and agreed that they would be together either in Chile or Australia. Ms Hernandez departed Australia for Chile on 3 August 2001. For about a year, she lived with Mr Guerra's sister and began working as an employed hairdresser utilising the skills she had learned in Australia. Those skills are in significant demand. Ms Hernandez is no longer living with Mr Guerra's sister and rents a room elsewhere. Mr Guerra phones her two or three times a week and sometimes sends her money. After she left Australia, he felt alone and became depressed - it was very hard.

32. Mr Guerra said he and Ms Hernandez discussed the possibility of getting married before she left Australia. After separating from his previous wife, Mr Guerra had thought he would never get married again. It was only after Ms Hernandez left Australia that he set in train the arrangements for a divorce. After two years apart, Mr Guerra flew to Chile to see Ms Hernandez in July 2003. This was the first time he had been back to Chile since he left in 1970. Their plan was to be together and see how their relationship was. About for weeks later, he proposed marriage and they were married on Friday 10 October 2003 in a civil ceremony in a town called Melipilla, about one hours drive from Santiago. Mr Guerra's sister was one of the witnesses and Ms Hernandez's best friend Patricia. Mr Guerra provided a copy of the marriage certificate (A3) and the Tribunal inspected photographs of the wedding and party afterwards.

33. After the wedding, they had a small party for 20 or 30 people at Patricia's apartment and then had a short honeymoon for the rest of the weekend at Patricia's farm in the south of Chile. It was only a short honeymoon because Ms Hernandez had to return to work the following Monday. Mr Guerra said he returned to Australia on 20 October 2003 because he ran out of money.

34. Mr Guerra currently has two part-time cleaning jobs. In the past, he has worked as a mechanic and truck driver including 23 years for Sydney Water. His children still live with his ex-wife in the former matrimonial home and he sees them on average about once a month. When giving evidence, Mr Guerra said at first that he has not decided what he will do if his wife is not granted a visa. Later, he reiterated his love for his wife and said that if she is not granted a visa he will go to Chile to live with her.

35. Ms Hernandez said she is very upset that the Department should continually accuse her of lying. She is not lying - she is telling the truth but gets nervous and confused when discussing her situation. She is now settled in Chile and content to be there, but her husband wants her to be able to return to Australia because he has lived there for so many years and made his home there.

Consideration of the Law and Findings

36. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Hernandez passes the "character test" having regard to her past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry...

In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431).. However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

37. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, Ms Hernandez does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

38. Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9(c)).

39. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. The Tribunal has no doubt that the relationship between Mr Guerra and Ms Hernandez is a genuine loving marital relationship, that they want to be together, and are finding it very hard being apart. The principal factual issue that must be determined is whether Ms Hernandez's protection visa application was genuine. The Tribunal accepts Ms Hernandez's evidence that at the time she completed the Incoming Passenger Card on arrival in Australia, she had not formed any intention to try and stay permanently. The 10 day intended stay stated was as a result of being assisted with the completion of the Card by another passenger on the plane. At the time, Ms Hernandez did not speak, read or write in English. The Tribunal finds she did not intend to make a false or misleading statement by completing the Card in the way she did.

40. The Tribunal accepts Ms Hernandez's evidence that it was as a result of advice from a Peruvian woman whom she met in the Beauty Salon at Central that Ms Hernandez completed and lodged a protection visa application. Despite the Respondent's scepticism, the submission that Ms Hernandez's claims are similar to those made in many such applications, that Ms Hernandez was evasive in answering questions and that her evidence contained inconsistencies, the Tribunal considers that her claims are genuine. She was obviously very nervous about giving evidence and became distressed when asked about the events in Colombia which led to her leaving. While there were some inconsistencies in her evidence, these seem to have been as a result of her confusion and language difficulties, and her distress at having to yet again recount what happened before she left Armenia, and at being accused of lying. On several occasions in the course of her giving evidence, Ms Hernandez became so distressed that she said she did not want to proceed any further with the application. She said she is content with being in Chile and her main reason for wishing to come to Australia is to be with her husband because Australia has been his home for more than 30 years.

41. The Tribunal does not accept the Respondent's submission that she was lying. Her account was in broad terms consistent with the description of the political context in Colombia, including the persecution of members of the Patriotic Union, described in the UNHCR Report of September 2002, International Protection considerations regarding Colombian asylum-seekers and refugees (A4).

42. The Tribunal is not persuaded that the documents Ms Hernandez provided in support of her protection visa application are bogus. The certificates issued by agencies in Armenia as to the threats, attacks on her house, and the shooting incident outside her Beauty Academy take the form of a record of the incident as reported to that agency and do not comprise the report of an official investigation. The Tribunal notes that these certificates were issued in August 1997, some of them before Ms Hernandez lodged her protection visa application on 15 August 1997. The application form itself states that applicants "should provide any evidence which supports your claims" and it is quite conceivable that Ms Hernandez, through email contact with her daughter in Armenia, asked her to obtain supporting documentary evidence prior to lodging the application.

43. The Tribunal notes that Ms Hernandez sent documents to the Department with brief covering notes dated 22 October 1997 (T p34), 11 November 1997 (T p36) and 5 December 2001 (T p38). She also sent 11 documents with translations into English from Spanish with a covering letter dated 5 March 1998 (T p40). Ms Hernandez said she was unable to provide the originals because she had sent these to the Department by ordinary mail, they were never received by the Department and she presumed they were lost. The Tribunal is not persuaded that Ms Hernandez's inability to produce the originals is, in the circumstances, suggestive of some sort of fraud.

44. With regard to Ms Hernandez's application for a bridging visa B lodged on 19 July 2003 to enable her to travel to New Zealand and re-enter Australia, the Tribunal finds that the principal reason for this application was to enable Mr Guerra and Ms Hernandez to have a holiday in New Zealand, as suggested by their treating psychologist after the suicide of Mr Guerra's mother (T p83). Mr Guerra acknowledged that they hoped this would also have the effect of prolonging Ms Hernandez's stay in Australia. That they should desire this and make such an application should not, in the Tribunal's view, attract criticism.

45. The Tribunal also accepts Mr Guerra's and Ms Hernandez's explanation for withdrawing her RRT application on 19 July 2001. That she should not wish to go through what she regarded as the ordeal of another interview, is not in the circumstances surprising. It is not of itself evidence that her protection visa claims were not genuine. Since they were contemplating marriage, Ms Hernandez and Mr Guerra decided it would be better for her to return to Chile and lodge a prospective spouse visa application, although this was against Mr Reyes-Gonzales' advice.

46. Turning to the application of the character test, the Tribunal is not satisfied, in terms of the Full Federal Court's exposition in Goldie (supra), that Ms Hernandez's character "is so deficient as to show it is for the public good to refuse entry". The Tribunal is not persuaded by the Respondent's submissions that she fails the character test by reason of her past and present general conduct, there being no substantial evidence to support the Respondent's allegations. On the contrary, Ms Hernandez has provided a credible explanation for what occurred and the Tribunal considers that her account is genuine. Pursuant to s 501(6), she therefore passes the character test. Having so determined and in the light of the Tribunal's findings about Ms Hernandez's protection visa application, it was not necessary to consider the exercise of the discretion in s 501(1). It should be noted that Ms Hernandez's youngest son John is no longer included in her visa application. He is married and living in Chile. Moreover, Ms Hernandez is now Mr Guerra's wife and no longer a prospective spouse.

47. The Tribunal notes that while Mr Reyes-Gonzales did his best to assist Mr Guerra in preparing and presenting Mr Guerra's case to the Tribunal, an experienced advocate would likely have been able to present a much stronger case to the Tribunal.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed: .......................................................................................

Associate

Date/s of Hearing 8 and 9 December 2003

Date of Decision 18 December 2003

Representative for the Applicant Mr Ramon Reyes-Gonzales

Representative for the Respondent Mr Greg Peek, Solicitor