Racoma and Minister for Immigration and Multicultural Affairs - [2000] AATA 665

DECISION AND REASONS FOR DECISION [2000] AATA 665

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoN1999/835

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MILAGROS RACOMA
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D Chappell, Deputy President

Date7 August 2000
PlaceSydney

Decision The decision under review is affirmed.

..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa refusal – citizen of the Philippines – entered Australia in 1985 – adopted a false name – worked illegally – entered into a de facto relationship – application for a protection visa – request for Ministerial intervention – protection visa refused – consideration of character – protection visa false - applicant not of good character – consideration for exercise of the discretion – relationship entered into in good faith – significant harm already inflicted on Australian community – deterrence significant factor – decision affirmed
Migration Act 1958
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

REASONS FOR DECISION

Dr D Chappell, Deputy President
BACKGROUND Application and Hearing

This is an application by Ms Milagros Racoma (the review applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to refuse to grant her de facto husband, Mr Danilo San Pedro (the visa applicant), a subclass 309 (Spouse (Provisional)) visa. The refusal was based on a finding that Mr San Pedro was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.
Mr Kevin Duncombe, of counsel, represented Ms Racoma at the hearing. Both Ms Racoma and Mr San Pedro gave personal testimony to the Tribunal. The following witnesses also testified on behalf of the applicant:
Lydia Tayengco
Virginia Tamora Atienza
Marieta De Guzman
Revelita Racoma-Herrera
Feliza Lagula
Beatriz Leygo
Helen Grace Racoma
Eduardo Villamin
Victoria Milan
Marcelino Sia
Mr Jennan Ambikapathy, a departmental advocate, represented the respondent. No witnesses were called on behalf of the respondent.
The Tribunal had before it documents and supplementary documents filed for the purpose of s 37 of the Administrative Appeals Tribunal Act 1975 (the T and S documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No.     Description    Date
A1      Correspondence and Envelope: Letter from Helen Oag Letter from Philip Ruddock Envelope with name Helen Oag Solicitor and Attorney stamped thereon     11/12/1997 27/11/1997
A2      Letter with letterhead Sydney Institute of Technology signed by Dr Mac Cusiter    26/10/1999
A3      Medical Reports from Dr Kim       12/8/1999 5/11/1999 19/4/2000
A4      Affidavit of Milagros Racoma
A5      Affidavit of Mr Danilo San Pedro
A6      Letters from Lydia Tayengin         8/10/1999 13/4/2000
A7      Letter from Virginia Atienza          24/4/2000
A8      Letters from Mania De Gruzman   9/10/1999 23/4/2000
A9      Statutory Declaration from Revelita Racoma-Herrera   1/11/1999
A10     Letter from Feliza Lagula   7/10/1999
A11     Letter from Beatriz Leygo   6/10/1999
A12     Letter from Helen Grace Racoma 30/10/1999
A13     Letters from Edvardo Villamin      27/1/2000 25/4/2000
A14     Letter from Victoria Milan   24/4/2000
A15     Letter from Marcelino Sia   23/4/2000
R1      Statement by Ms Sally Reay-Young       15/9/1999

In addition to these exhibits, and the T documents, the Tribunal also received an additional document from the applicant in the form of a "Certification of Enrolment" for Mr San Pedro in the College of Arts and Sciences at the University of the East, after the completion of the initial hearing of this matter. Mr Duncombe and Mr Ambikapathy made further oral submissions in relation to that document on 7 June 2000.
Circumstances Leading to Visa Refusal
The following general facts, and chronology of events, which led ultimately to the refusal by the respondent of the visa sought by Mr San Pedro were not in dispute between the parties. Mr San Pedro was born in the Philippines on 30 December 1953. He grew up in that country, completing his high school education in 1969 (T: 90) and attending the University of the East until 1977.
Mr San Pedro stopped studying at the University of the East in order to marry Rachel Ortega. After leaving the University of the East, Mr San Pedro worked in a jewellery shop (see transcript 2 May 2000: 46-47). In 1981 he and his wife separated and later divorced. There is one child of that marriage. That child lives with his mother in the Philippines (T: 252). In 1983 the jewellery business in which Mr San Pedro then worked collapsed (see transcript 2 May 2000: 47).
On 14 March 1985 Mr San Pedro entered Australia on a visitor visa that remained valid for a period of two weeks. On arrival in this country Mr San Pedro adopted a false name, Danny Gomez (see transcript 2 May 2000: 51; A4; A5). Mr San Pedro also worked illegally in Australia following his arrival in 1985 (A4; A5).
Mr San Pedro and Ms Racoma first met in 1989. In 1994 they entered into a de facto relationship (transcript 2 May 2000: 9; A4: 2). Mr San Pedro and Ms Racoma lived together for some three and one half years before Mr San Pedro eventually returned to the Philippines. It was not contended by the respondent that the relationship was anything but genuine.
On 2 September 1994 Mr San Pedro lodged an application for a protection visa (T8). That form required Mr San Pedro to stipulate the basis of his claim for refugee status. Mr San Pedro made the following written statements:
I am really scared to return to my home country because the authorities are not able to control the insurgents and give protection to those people specifically targeted by them.
I was a student activist in my university days. I was forced to quit school and return to my home province, but my colleagues who became rebels pressured me to join.
Many former rebels are now mixing with the ordinary citizens and carry out revenge.
I always refused to join the insurgents, but many of them were known to me.
(T: 94)
On 22 March 1995, Mr San Pedro was interviewed by officials of the Department of Immigration and Multicultural Affairs (DIMA). In that interview he stated:
I was a member of the "Student Action Group"… The Group's aims were to fight for more freedom, against government injustice and high prices…Personally, I participated in demonstrations and picketing as an ordinary group member. I did not speak in public and was not one of the leaders.
….
The military and the police monitored me because some members of the student group joined the insurgents.
….
I stopped studying because my friends convinced me to join the insurgents [the New People's Army].
….
They came to my place and explained things like injustice to me. Sometimes they said that if I did not join them I would be in trouble because they knew that I was a student activist. They came to see me once a month.
I told them I did not want to join them because I wanted to live a simple life. I sought police protection once, in late 1973, before the military came to see me. But the police did not give me sufficient protection…
I fear [if I return to the Philippines] that they might come to convince me to join them again. They might kill me if I refused. Some of my friends have been killed like that.
….
If I returned to the Philippines, now, the insurgents would think that I would tell the police what I knew about them. The authorities would not protect me because I am just an ordinary citizen.
(T: 141-143)
On 28 April 1995 Mr San Pedro's protection visa application was refused by a delegate of the Minister (T15). This rejection was based on evidence available to the delegate that suggested that there was no real chance that Mr San Pedro faced persecution by the New People's Army (NPA) (T: 150-157).
On 24 May 1995 Mr San Pedro applied for a review of the delegate's decision by the Refugee Review Tribunal (RRT). This Tribunal was not provided with a copy of that application. On 17 December 1996 the RRT affirmed the delegate's decision to refuse a protection visa to Mr San Pedro. Mr San Pedro did not give evidence in person to the RRT. In his conclusions as to the applicant's claims the RRT Member said that:
…if the applicant was a member of a student group from 1969 to 1972, then if he returns to the Philippines, he will not face a real chance of harm from the authorities by reason of this membership.
….
The Tribunal notes that the applicant did not suffer any harm from the NPA in the Philippines from 1973 to his departure in 1985, and that since 1985, the NPA are reduced in numbers. The tribunal finds that if the applicant returns to the Philippines, he will not face a real chance of harm from the NPA.
(T: 172-173)
On 10 January 1997 a request was made by Ms Belen Oag, on Mr San Pedro's behalf, for the Minister to exercise his public interest power under s417 of the Act following the unsuccessful RRT review. In making this request Ms Oag stated that the substitution of the RRT decision with a decision favourable to Mr San Pedro would be in the public interest (T: 176). According to Ms Oag's letter the public interest criterion would be met because Mr San Pedro has "[a]ssimilated himself to the Australian society"; "formed strong bonds with Australian citizens, one of whom is his de facto wife"; and "has made a positive contribution to Australian life" (T: 176). Ms Oag re-iterated Mr San Pedro's claim that Mr San Pedro "…fears that the NPA might harm him because they might think he informed on them or would inform on them" (T: 177). On 27 November 1997 the Minister wrote to Ms Oag stating that he had decided not to exercise his discretion under s417 in favour of Mr San Pedro (T: 180).
On 28 January 1998 Mr San Pedro was granted a Bridging Visa (BVE) to 22 March 1998 on the understanding that he was making arrangements to depart Australia (T: 182). Mr San Pedro made arrangements to depart Australia on 21 March 1998 (T: 186).
On 20 March 1998 Mr San Pedro lodged an application for a subclass 309 (Spouse (Provisional)) visa. On the date of Mr San Pedro's departure to the Philippines Ms Racoma lodged a sponsorship for her fiance to migrate back to Australia (T30).
On 24 June 1999 the Minister's delegate, Ms Sally-Reay-Young, refused Mr San Pedro's visa application on the grounds that he had failed to pass the character test. The Minister's delegate also declined to elect to exercise her discretion not to refuse the granting of the visa under s501 of the Act. In reaching this decision Ms Reay-Young noted in her assessment that she had taken into account the following factors regarding the past general conduct of Mr San Pedro:
He deliberately overstayed his initial visa for 9 years;
He made no attempt to contact DIMA to regularise his status until 1994 when he lodged an application for a protection visa hoping that the Department would issue an amnesty to all illegal entrants;
His review application failed and the Minister declined to intervene under s417 of the Act;
He used an alias during his stay in Australia. All his bills are in the name Danny Gomez. His lease agreement is in the name Danny Gomez.
Mr San Pedro admitted at his first interview that Ms Mila Racoma knew of his status in Australia from the beginning of their relationship.
13. …At interview Mr San Pedro seemed genuinely sorry for his actions whilst in Australia… Whilst I acknowledge that Mr San Pedro is probably quite remorseful, I believe that this remorse is due to the fact his past actions may jeopardise his current application for migration rather than any concern for the expenditure of departmental resources. It is contradictory to his total disregard for Migration law.
Significant resources have been deployed to resolve Mr San Pedro's status in Australia. He showed a total disregard for Australia's migration laws. He signed numerous documents using a false name, including a legal lease agreement. Having regard to Mr San Pedro's past general conduct shown by his efforts to remain at large in Australia, it would be reasonable to conclude he is not of good character.
(T: 9-10)
On 31 May 2000 Ms Racoma, the review applicant, sought a review by the Tribunal of the delegate's decision (T1).
LEGISLATIVE AND POLICY PROVISIONS
Section 501 of the Act is the key legislative provision relevant to Mr San Pedro's case. This section was amended by Parliament in a substantial way after the Minister's delegate made the decision to refuse Mr San Pedro residency status in Australia. However, it was acknowledged by both of the parties that, as a result of s32 of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998, this amendment did not affect the present proceedings in any way, and that the earlier version of s501 applied to the case (see transcript 2 May 2000: 7-8).
Part 2 of Schedule 1 to the Migration Regulations (the Regulations) prescribes the relevant visa subclass as 309 (Spouse (Provisional)). A primary criterion for the granting of a subclass 309 visa, which is to be satisfied at the time of making a determination, is the public interest provision contained in Clause 4001 of Schedule 4 of the Regulations (T7). This criterion states:
4001.
(1)The applicant meets the requirements of subclause (2),(3) or (4).
(2)An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa.
(3)An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa, the Minister has decided that that evidence if insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.
(4)An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa.
The relevant parts of the earlier version of s501 of the Act, as at 31 May 1995, provide the following:
501.(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a)subsection (2) applies to the person; ……..
(2)This subsection applies to a person if the Minister:
having regard to:
(i)          the person's past criminal conduct; or
(ii)        the person's general conduct;
is satisfied that the person is not of good character; or
        (b)      is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.
(3)     The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.
In addition to these legislative and allied provisions the transitional arrangements referred to in the Migrational Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 also state that a direction given by the Minister that was in force prior to 1 June 1999 has effect after that date as if it had been given under the amended version of s499 of the Act. Section 499, in its amended version, provides, in part:
499(1). The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b)the exercise of those powers.
(1A) …
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
…
The Minister issued "General Direction - Visa Refusal s501 - No.5" (the Ministerial Direction) on 25 November 1997 (T6). That Direction provides, in part, that:
When considering under section 501 the good character requirement relating to non-citizens who are seeking a visa and the ensuing discretion which arises after a finding that the applicant does not meet that requirement, the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct and complicity with others who are involved in, or connected with, organised criminal behaviour.
The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:
·     where a non-citizen has been convicted of offences, or the non-citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community; …
·     where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody.
Offences against the person (eg: murder, rape, kidnapping, assault) and offences relating to prohibited drugs are regarded by the Government as being of particular concern when considering non-citizen visa applicants and the good character requirement and should be given due regard under section 501. …
If, after a finding that the person does not meet the good character requirement under section 501, the following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:
where the visa applicant has a spousal or partner relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:
·     whether, at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non-citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);
·     if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non-citizen had not been granted a visa for Australia; and
·     in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established.
whether the non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought them within the deportation provisions at section 201 of the Act or the visa refusal and cancellation provisions at section 501 of the Act.
It should also be noted that in addition to the Ministerial Direction the respondent's Migration Series Instructions (MSI) 164 incorporates Ministerial policy and provides guidance as to the interpretation of s501 of the Act. The latest relevant edition of this document was issued on 22 April 1997 (T5).
ISSUES

The principal matter of dispute between the parties is whether or not Mr San Pedro satisfies the required public interest criteria specified in the Regulations which would entitle him to be granted a subclass 309 visa. On behalf of the respondent it was contended that Mr San Pedro did not meet these requirements because he was a person not of good character based on his past and present general conduct (s501(2)(ii) of the Act).
It is well established that in considering the issues raised under s501 of the Act, two stages are involved. First, the Tribunal must consider whether it is satisfied that Mr San Pedro is not of good character. If it reaches an adverse finding about this issue then the Tribunal must then consider the residual discretion which is vested in it by s501 to not refuse the grant of a visa to a person whom it has found not to be of good character.
EVIDENCE
Use of False Name
As already noted, it was not contested that Mr San Pedro used the false name Danny Gomez from the time of his arrival in Australia in 1985. That false name appeared on Mr San Pedro's application for a tax file number (see transcript 2 May 2000: 53). Mr San Pedro's employers in Australia all knew him as Danny Gomez (A4: 5) while Mr San Pedro's electricity bills (T: 125-127), rental and bond agreements (T: 238-240) and tenancy receipts (T: 130-132) were all in the name of Danny Gomez. During cross examination by the respondent, Mr San Pedro provided the following details about his use of the alias Danny Gomez:
And Mr San Pedro, when you started working for your friends, did they advise you to use a false name?
Yes, some people I met told me to change my name.
And what was the reason you needed to change your name?
Well, I don't know because you know, I'm new in the place so I don't know what – what's happening to me.
So why didn't you keep your correct name?
Well, I told you in my first job I used my first – my real name, then they just advise me.
….
Who advised you?
Some people I met there.
….
…when you took on your false name….Did you call the Department of Immigration and tell them that you've changed your name?
No, no.
Why not?
Because they might get me.
….
And what would happen if they caught you?
They'd want to send me back.
So if they caught you they'd send you back, that's what you were afraid of, is that correct?
Yes.
And so that is why you decided to use a false name so that they couldn't catch you?
Yes, yes.
(see transcript 2 May 2000: 52-53)

Working Illegally

In his personal testimony Mr San Pedro said that he was employed throughout the duration of his stay in Australia and admitted that he worked illegally (A4). As already noted Mr San Pedro used a false name while working and procured a tax file number using that name (see transcript 2 May 2000: 53). Mr San Pedro's first employment was a part-time job in a hotel (see transcript 2 May 2000: 52). Following that he worked as a jeweller for Lambert and Freed in Sydney for a period of five-and-a-half years (T: 262). According to his personal testimony Mr San Pedro then worked with the Ataj Gold Company, again as a jeweller, from 1990 until 1994 (see transcript 2 May 2000: 54). This was followed by a job with Ramik and Company, from 1994 until 1997 (see transcript 2 May 2000: 54; A4) and Demarc Jewellery (A4). Mr San Pedro stated that he never informed any of his employers that he was working illegally (see transcript 2 May 2000: 55).
Protection Visa Application
The claims that were made by Mr San Pedro at the time of lodging his protection visa application have already been set out in detail. In that application it was also noted by Mr San Pedro that the period of his attendance at the University of the East was from 1969 until 1972 (T: 90). In his application for a Spouse (Provisional) visa Mr San Pedro did not mention his university attendance and instead indicated that he had been attending St Mary's Academy, a secondary school, in the period from 1966 until 1970 (T: 195). In personal testimony before the Tribunal Mr San Pedro agreed that he had been attending St Mary's Academy during that period. Mr San Pedro also stated in his personal testimony that he had started studying at the University of the East in 1972 (transcript 2 May 2000: 43). When asked whether it was the case that he had studied at the University of the East from 1972 until 1975, Mr San Pedro said that he had in fact studied at the University in the period from 1969 until 1972 (transcript p45). Questioned further Mr San Pedro stated that he had studied at the University of the East in the period from 1971 until 1973 (transcript 2 May 2000: 45). After the conclusion of the hearing the applicant submitted a Certification of Enrolment from the University of the East. That certificate indicates that Mr San Pedro attended the University of the East in the College of Arts and Sciences from "First Semester 1973-1974 to First Semester 1976-1977".
As already indicated Mr San Pedro stated in his application for a protection visa that at school he had been a student activist who was "forced to quit school and return to his home province". In his personal testimony Mr San Pedro said that he had stopped studying in order to get married (transcript 2 May 2000: 46). In 1981 that marriage failed (transcript 2 May 2000: 49) and in 1983 Mr San Pedro's jewellery business collapsed (transcript 2 May 2000: 49). In 1985 Mr San Pedro came to Australia on a visitor's visa. When asked by the respondent why he had come to Australia, Mr San Pedro provided the following response:
Well, to visit my cousin and have a look if there's a chance I can – if I can perhaps start a new life if I have a chance.
So you visited Australia to see your cousin?
Yes
And to see if you have the opportunity to begin a new life?
Yes
So why did you leave the Philippines then?
Because of – because of the problems I experience there, my marriage, business – business collapse
So a bad marriage and a business collapse?
Yes, and the insurgence
(transcript 2 May 2000: 49-50)

When asked by the Tribunal which of these three reasons was the main reason, Mr San Pedro replied, "well actually that – those three reasons" (transcript 2 May 2000: 89). In his affidavit Mr San Pedro stated, "In 1985 I came to Australia to visit my cousin" (A4: para11).

Mr San Pedro lodged his application for a protection visa in 1994, nine years after his initial arrival in Australia. During that time, as noted above, he had met and formed a relationship with the applicant, Ms Milagros Racoma. According to Mr San Pedro, by 1994, he and Ms Racoma wanted to settle down, "make the matters right … and start a good family" (transcript 2 May 2000:59). Thus in 1994 Mr San Pedro approached a migration agent. When asked what the migration had said Mr San Pedro stated:
Well, he told me that I'm to go back to the Philippines and sponsored by Mila or I might apply for a refugee because – previously the Department issue an amnesty for those with refugee status….skill so he said that you might apply because you have a genuine claim and maybe after it – it's decided they maybe have amnesty so there's no need to go to the Philippines and stay with your wife.
(transcript 2 May 2000: 60).

During further cross examination Mr San Pedro re-iterated his belief that he had a genuine claim based on the fear of reprisals resulting from his student activism (transcript 2 May 2000: 60). In his affidavit Mr San Pedro stated the following:

I made the application for refugee visa, rather than go back to the Philippines because I did not want to leave her alone. I realise now that I should have returned to the Philippines, prior to commencing our defacto relationship and be sponsored back in the normal manner.
(A4: para23)

Mr San Pedro did not give oral testimony to the RRT (T: 163). The RRT decided that matter on the evidence it had before it. That evidence was constituted by the primary application form (quoted above); the departmental interview (quoted above); Mr San Pedro's Departmental File; and an application for review dated 24 May 1995 and quoted in the RRT's decision (T17: 163). In addition to the findings cited above, the RRT made the following conclusions with regard to Mr San Pedro's claims:
the Tribunal [RRT] finds that if the Applicant was a member of a student group from 1969 to 1972, then if he returns to the Philippines, he will not face a real chance of harm from the authorities by reason of this membership.
As to fear of harm from former members of the student group who became members of the NPA, the Tribunal has some doubts as to the credibility of the applicant's claim, given that in the Departmental interview he first described his friends as not communists and the NPA is a communist group. However, the Tribunal has given the Applicant the benefit of the doubt and assessed his claim as credible.
(T: 173)

The RRT found that Mr San Pedro did not face a real chance of harm from the NPA (T: 173). The RRT found further that it was not able to make a finding with regard to the adequacy of Filipino police protection as the "applicant gave no details as to what was the police response to his request for protection" (T: 173). The RRT noted that: "What is clear is that the Applicant was not harmed by his former colleagues in the period 1973 to his departure from the Philippines in 1985" (T: 173). The RRT considered Mr San Pedro's belief that NPA members "might harm him because they might think he will inform on them to the police", "speculation without basis" (T:173). The RRT went further and stated that "their chance of harming him on return is remote and fanciful" (T: 173). The RRT went on to make the following finding:

In any case, the Tribunal finds that the country information available… does not support the finding that the Philippines is politically unstable. In particular, the Tribunal notes that first President Aquino and then President Ramos, from 1986 to date have succeeded in much reducing the rebel communist and Muslim forces which operated in the Philippines from 1965 and that the Philippines has an elected President, a fully functioning political party system, a bicameral legislature, and an independent judiciary.
The Tribunal finds that if the Applicant returns to the Philippines, he will not face a real chance of persecution from his political opinion, whether actual or imputed to him, or for any other Convention reason.
(T: 173)

Relationship with the Applicant

As noted above, Mr San Pedro first met Ms Racoma in 1989 and the couple commenced a defacto relationship in 1994. At that time Ms Racoma and Mr San Pedro entered into a lease together for a house at Hurlstone Park. Ms Racoma told the Tribunal that she had become aware of Mr San Pedro's illegal status, his utilisation of a false name and the fact that he was working illegally within two or three months of having met him (transcript 2 May 2000: 13). Ms Racoma stated that at first she was suspicious that Mr San Pedro was "taking advantage" of her (transcript 2 May 2000: 13). In her written statement and in her oral testimony Ms Racoma stated that Mr San Pedro's illegal status in Australia was of significant concern to her in entering the relationship (A4: 2 and transcript 2 May 2000: 14-15). Ms Racoma stated that she had not sought to help Mr San Pedro regularise his status prior to 1994 as they "were only friends" during that period of time and it was not until 1994 that they "finally entered into a serious commitment with each other" (transcript 2 May 2000: 15). Later in the proceedings, Ms Racoma said that she had made inquiries of DIMA with regard to Mr San Pedro but she had done so in a way that assured his anonymity. Ms Racoma said that she attended the office of a migration agent, Mr Diaz, with Mr San Pedro in 1994 (transcript 2 May 2000: 16). Mr Diaz had advised that they had two options open to them. The first option was to make an application for a spouse visa and the second option was to apply for a refugee visa (transcript 2 May 2000: 16). When asked which of the options she had preferred at the time, Ms Racoma stated:
…I wanted him to go back and apply as a spouse – to be sponsored as my spouse but when he was suggest – he was told by the migration agent that he could apply for a refugee without leaving Australia, he opted to do so because he had a genuine claim and that means to say he would not leave me here.
(transcript 2 May 2000: 17)

Ms Racoma said that she still believed that Mr San Pedro's claim was a genuine one (transcript 2 May 2000: 18).
CONSIDERATION
Good Character Issue
Case Law, MSI, Ministerial Direction and Submissions

The meaning of the term "good character" as used in s501 of the Act is well understood as a result of several persuasive and, for the Tribunal, binding decisions of the Full Federal Court: see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 (hereinafter Baker); Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (hereinafter Irving). As was stated in Irving, good character for the purposes of s501 refers to the "enduring moral qualities of a person and not to the person's good standing, fame or repute of that person in the community" (at 431-432). In Baker the Full Federal Court also had the following to say in regard to the approach to be taken when assessing a person's character:
The words "good character" in the section should, as Lee J pointed out in Irving (at 94), be understood as "a reference to the enduring moral qualities of a person". Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.
(at 471-472)
It is clear that it is the Tribunal's responsibility to have regard to both the MSI and the Ministerial Direction when determining whether or not Mr San Pedro is a person of good character. It is also the Tribunal's responsibility to make a determination as to his character at the time of the reaching of the decision (Baker 194). The respondent contended that the visa applicant was not of good character based on his general conduct. In his submissions, made on behalf of the respondent, Mr Ambikapathy referred to the Ministerial Direction and the expressed view of the Government that non-citizens should comply with expected standards of behaviour.
Mr Ambikapathy submitted that Mr San Pedro's activities on arrival in Australia did not comply with these standards. He noted that the visa applicant has been an unlawful resident in Australia for nine years, and had used the false name Danny Gomez throughout his stay in this country. This false name had been used extensively in official dealings. The evidence also showed that Mr San Pedro had worked illegally in Australia from 1985 until 1994 when he was granted a Bridging Visa, as a result of his Protection Visa application, which gave him permission to work. It was submitted by the respondent that these actions constituted a breach of s235 of the Migration Act and thus fell within the purview of the General Direction.
The respondent also submitted that Mr San Pedro's refugee claim was false, and made for the sole purpose of obtaining a bridging visa with permission to work. This amounted to a breach of s234 of the Act for which Mr San Pedro remained liable for prosecution. This was conduct that also fell within the ambit of the General Direction. Mr Ambikapathy noted that after his refugee application has failed Mr San Pedro waited to be contacted by the Department's compliance officers before finalising his departure from Australia. The respondent submitted that the conduct engaged in by the applicant was persistent and intentional. It was conduct of a type which was of significant concern to the Australian community and threw a dark shadow on the applicant's character.
Mr Ambikapathy further contended that if the Tribunal found Mr San Pedro not to be a person of good character it should not elect to exercise its discretion in his favour. The respondent conceded that the applicant, Ms Racoma, might suffer some emotional hardship, including depression, should Mr San Pedro be denied entry to this country. Mr Ambikapathy submitted that this was hardship Ms Racoma could have contemplated given that she had full knowledge of Mr San Pedro's immigration status. Further, the respondent submitted that any hardship suffered by Ms Racoma could not outweigh the interests of the Australian community in maintaining the integrity of the nation's migration program.
In his submissions made on behalf of the applicant Mr Duncombe contended that the Minister's delegate had erred in referring to Mr San Pedro's application for a subclass 309 visa as an application for permanent entry into Australia. Mr Duncombe noted that an application for a subclass 309 visa is, in fact, an application for temporary entry into Australia. On this basis Mr Duncombe submitted that the delegate has failed to take account of all the matters she was required to consider under the policy. In particular, the delegate failed to mention the public interest criteria and thereby misapplied the discretion available to her under the Migration Regulations. Mr Duncombe said that had all relevant matters been taken into account a decision not to exercise the provisions of 501 could have been taken with the result that it could have been found that the applicant was now of good character. In regard to this particular contention the Tribunal simply notes that it is one which fails to recognise the nature of the merit review process conducted by the Tribunal. The present proceedings are not a review of the delegate's decision but a review de novo.
Mr Duncombe said that the respondent's contention that Mr San Pedro intentionally entered Australia to overstay his visitor visa and work unlawfully could not be supported. It was only upon his arrival in Australia that Mr San Pedro considered working. Mr Duncombe also said that there was no issue that the applicant used a false name and submitted that this use placed him "on a sort of a mill" from which it was difficult to extricate himself (transcript 3 May 2000: 168). He also contended that Mr San Pedro had been truthful when questioned by DIMA and at the hearing before the Tribunal.
Mr Duncombe made a number of submissions with regard to the refugee application. The RRT he contended had decided that Mr San Pedro's claim was genuine. The Tribunal should accept that finding. Mr Duncombe admitted that there were certain inconsistencies between Mr San Pedro's application to the RRT, and the evidence presented to the Tribunal. Mr Duncombe contended that these were either minor in their nature, or the result of the elapse of time between the incidents being described and the hearing. Mr Duncombe also suggested that some of the actions of the applicant might be understood as his reaction to the advice of friends and migration advisers. It was clear, Mr Duncombe submitted, that Ms Racoma had no involvement in wrong-doing and played no part in the lodging of the refugee application. For his part, Mr San Pedro had sought to make amends for his actions since his return to the Philippines. Ms Racoma, as well as Mr San Pedro's Australian employers, would all suffer significant hardship were the visa applicant not allowed to return to this country. It could not be for the public good to refuse Mr San Pedro a visa.
The Tribunal's Views
Good Character Issue
It is clear from the evidence before the Tribunal that Mr San Pedro has committed serious breaches of the migration law. In the Tribunal's view these breaches are indicative of a pattern of general conduct engaged in by Mr San Pedro that provides revealing insights into his true character. Mr San Pedro's misconduct began almost immediately upon his arrival in Australia in 1985. Although only possessing a two week visitor visa he commenced working illegally under a false name. Mr San Pedro admitted that his use of a false name in both his professional and many of his personal dealings was specifically to avoid detection by the Australian immigration authorities.

The Tribunal is also satisfied from the evidence presented that Mr San Pedro's application for a protection visa was false. The Tribunal has had the opportunity to question Mr San Pedro extensively in relation to this application. The RRT was not afforded this opportunity but still expressed its doubts as to the credibility of Mr San Pedro's claim. The Tribunal finds these doubts justified. Mr San Pedro was not able to provide the Tribunal with an accurate recall of the dates during which he said he attended the University of the East (see paragraphs 29-30 above). These dates are most significant, for they relate to the period during which Mr San Pedro also claims to have suffered persecution, as a result of his student activism, at the hands of certain political groups within the Philippines. As is also noted above a document tendered to the Tribunal, on behalf of Mr San Pedro, after the formal conclusion of the hearing indicated that Mr San Pedro attended the University of the East from first semester 1973-1974 until first semester 1976-1977 (see paragraph 29 above). These dates directly contradict those supplied by Mr San Pedro on his protection visa application. On that application form, Mr San Pedro stated that he had attended the University of the East from 1969 until 1972.
In his personal testimony to the Tribunal Mr San Pedro also gave a conflicting account of the reasons why he had permanently terminated his university studies, stating that it was an action taken in order to get married. This assertion was in direct contradiction with the claim made in his protection visa application that it was his behaviour as "student activitist in my university days" that forced him to "quit school and return to my home province".
The Tribunal rejects the contention made by Mr Duncombe that these inconsistencies should be viewed as minor and the product of faded memories of past events. In the Tribunal's view they are inconsistencies which point to Mr San Pedro's predilection to give false rather than truthful testimony, and to tell lies to officials when seeking benefits such as those provided to refugees.
Mr San Pedro was questioned at some length with regard to the reasons that had led him to come to Australia. In his own affidavit Mr San Pedro referred only to the fact that he wished to visit relatives in this country (A4: para11). When questioned by the Tribunal, Mr San Pedro indicated that his trip to Australia had been motivated by three factors. The first factor was his desire to visit his cousin. The second factor was to leave behind the problems he was experiencing in the Philippines with regard to the collapse of both his business and his marriage. The third factor was the "insurgence". Mr San Pedro told the Tribunal that he was motivated to leave the Philippines by each of these factors equally.
Mr San Pedro may well have had a number of motives for coming to Australia but based upon his own conduct upon his arrival the Tribunal is satisfied that his primary objective was to seek employment in this country. It was an objective which he gained and maintained for a number of years, aided by his use of a false name. Only when it seemed that he might be required to return to the Philippines in 1994 in order to regularise his immigration status did he choose to reveal his true identity when making his protection visa application.
Mr San Pedro stated in his personal affidavit (A4: para 23) that his application for a protection visa was in fact motivated by a desire not to leave Ms Racoma alone in Australia. He said that he now realised that he should have returned to the Philippines in order to regularise his status prior to commencing a de facto relationship with Ms Racoma. While Mr San Pedro may now have reached such a point of self-realisation the Tribunal does not believe that Ms Racoma's welfare was foremost in his mind when making this application. Mr San Pedro's real motive was, as noted earlier, to gain the benefits of lawful employment and a prolonged stay in Australia which accrue to those lodging refugee claims.
Based on this array of objective evidence and the associated statements made by Mr San Pedro with regard to his behaviour, the Tribunal considers that Mr San Pedro is not a person of good character. Mr San Pedro's general conduct demonstrates a blatant disregard for this country's immigration laws. Mr San Pedro has demonstrated a propensity to tell lies and to deceive. Only when circumstances seemed to dictate the need to reveal patterns of illegal behaviour, as in the case of his application for a spouse (provisional) visa did Mr San Pedro begin to tell immigration officials of his fraudulent misdeeds. Mr San Pedro's repeated, yet in the end unsustainable, claim to have made a genuine application for refugee status did nothing to discount the overall impression that he would continue to engage in deception and deceit until forced to tell the truth. In no way can these be the attributes of a person of good character.
Exercise of the Discretion
Having reached this conclusion the Tribunal is now required to consider the second issue which arises under section 501, namely whether, despite being satisfied that the refusal to grant the visa is justified, that power should not be exercised in the circumstances of this case. The MSI provides the following guidance to decision makers as to how they should exercise this discretion:
In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including:
The circumstances of the person at the time of the application.
These include but are not limited to:
- genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;
- the best interests of any child associated with the visa applicant/s;
- the strength of family, social, business and other ties to the Australian community;
- periods of previous lawful residence;
- the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);
- family disposition, both in Australia and overseas; and for protection visa applicants, whether refusal will lead to a breach of the International obligations under the Refugee Convention (see section 8).

Whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and
Whether undue harm would be likely to result to the Australian community if the visa was granted. This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is the primary consideration, equal in weight to any other primary consideration.
The above list of matters is not exhaustive.
(T:60-61)

The overall genuineness of the relationship between Ms Racoma and Mr San Pedro was not contested before the Tribunal. The Tribunal has no doubt that the relationship was entered into in good faith. Ms Racoma appeared to the Tribunal to be a frank and credible witness. She spoke openly and honestly about her initial doubts regarding Mr San Pedro's intentions, of her knowledge of his immigration malpractice, and her refusal to start a family until Mr San Pedro's immigration status was resolved. The relationship between Mr San Pedro and Ms Racoma has been one of quite substantial duration, and the Tribunal acknowledges that Ms Racoma has found the separation from Mr San Pedro difficult. A refusal to grant Mr San Pedro a visa would cause her considerable hardship.
It is clear from the MSI, and the Ministerial Direction, that the Tribunal must seek to balance the adverse finding as to character against all relevant mitigating factors. A primary consideration for the Tribunal remains, however, that it be satisfied that undue harm would not likely result to the Australian community should a visa be granted to Mr San Pedro.
The Tribunal believes that this is a case where significant harm has already been inflicted upon the Australian community. Mr San Pedro's conduct amounted to a determined and a deliberate attempt to thwart Australia's immigration laws. This attempt included the cynical misuse of the international humanitarian procedures established under the Convention and the Protocols relating the Status of Refugees (the Refugees Convention). It also involved the costly and time consuming appraisal of his false refugee claim to the detriment of those seeking such status on bona fide grounds.
The Australian community has every reason to send a strong deterrent message to any non citizen contemplating engaging in such cynical immigration malpractice that if detected no further reward will be given to the visa applicant in question in fulfilling his or her aim and ambition of becoming a resident of this country. To hold otherwise would be to caste doubt upon the integrity and fairness of Australia's legitimate immigration program.
There are no children involved directly in this matter although Mr San Pedro has a child by a prior marriage who remains in the Philippines. While it is clear that the Tribunal's refusal to grant a visa in this case will cause some disruption to the lives of Mr San Pedro and Ms Racoma as well as their families and employers both Ms Racoma and Mr San Pedro retain certain ties with the Philippines. Thus in this case the Tribunal is satisfied that there are not sufficient reasons why it should exercise the discretion in Mr San Pedro's favour and grant him the visa that he seeks. The decision under review is affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Chappell, Deputy President
Signed:         ..................................................................................
  Associate
Date/s of Hearing  2 and 3 May 2000
Date of Decision  7 August 2000
Date of Final Submissions      7 June 2000
Counsel for the Applicant        Mr K Duncombe
Solicitor for the Respondent    Mr J Ambikapathy