Candappa & Anor v Minister for Immigration & Citizenship & Anor [2007] HCATrans 444 (22 August 2007)

Last Updated: 13 September 2007

[2007] HCATrans 444

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M78 of 2007

B e t w e e n -

ROHAN CHRISTOPHER CANDAPPA AND PUWAKDANDAWE NARANYANAGE IREN CANDAPPA

Plaintiffs

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MS ANN GRAHAM IN HER CAPACITY AS MEMBER OF THE MIGRATION REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 AUGUST 2007, AT 11.00 AM

Copyright in the High Court of Australia
MR R.C. CANDAPPA appeared in person.

MR R.C. KNOWLES: May it please the Court, I appear on behalf of the first respondent. (instructed by Clayton Utz)

HIS HONOUR: Mr Candappa, you appear on your own behalf, do you, is that right?

MR CANDAPPA: Yes, your Honour.

HIS HONOUR: You appear also for your wife, do you?

MR CANDAPPA: Yes, your Honour.

HIS HONOUR: Mr Knowles, you have put on, have you not, a summons - - -

MR KNOWLES: Again, 15 August 2007, yes, your Honour.

HIS HONOUR: You seek to terminate the proceeding summarily.

MR KNOWLES: That is correct. Yes, your Honour.

HIS HONOUR: In support of that you read, do you, the affidavit of Udara Asangi Jayasinghe, is that right?

MR KNOWLES: Yes, your Honour.

HIS HONOUR: That is the affidavit of 14 August?

MR KNOWLES: Yes, your Honour.

HIS HONOUR: Do I understand there to be a number of bases on which you make the application, Mr Knowles, but one of them to be that on any view the application must fail because the visa applied for was one which required as a condition of its grant arrival in Australia on or before 1 November 1993 and the applicants did not arrive in Australia until 4 December 1995?

MR KNOWLES: That is absolutely correct, your Honour.

HIS HONOUR: And that is the essence of it, is it not?

MR KNOWLES: That is absolutely the essence of it.

HIS HONOUR: Now, Mr Candappa, first, the Minister wants to bring your action to a stop at once. That is what we are here about. The second thing is the Minister says that the particular visa that you applied for required as a condition of its grant that you arrive in Australia before November 1993 and that the material shows that you and your wife did not. The Minister says in those circumstances the application must fail. That is what in essence is what the Minister says. Now is your chance to tell me why I should not do what the Minister wants.

MR CANDAPPA: Your Honour, I do not understand, the Minister says correctly what is correct. This I understand very well. The thing is this. I did not plan to come to Australia before 1993 because when we had problems with – I am Italian. I married a Singhalese girl. We had a lot of problem from that day. I was working many part of the world as a chef – I am a catering instructor – given a passport in different names, not in my name. My name I cannot go through from the airport because when I go through the airport I have to pay a lot of money. I did this for a couple of times, but after that I thought, why pay. Every time to pass the airport I had to pay about 25,000 rupees. I also had to buy a lot of cigarettes and whiskeys from the duty free for the custom officers and the various officers. So first one of my friend said, “Do not do this and get another passport”.

I paid because in Sri Lanka everybody.....and my father was a very big businessman. He was taken from the house front of us, and chopped into pieces and raped my mother, raped my sister. This is the kind of country that we are living in. So then I went away from Sri Lanka. I was in Japan for about seven years. I was working as a chef and came to Sri Lanka in 1995 November – October. As soon as I came, after one week there was a big bomb blast to my house in.....area. It was an oil blaze. Then what they did, the police arrested all the tenants that was living in that area and I paid two lakh rupees for the Kandana Police OIC to get out from the remand and I was brought home.

On my way, another police station, they took me and I had to pay another one lakh rupees to come out and one of my friends helped me to go to Australia Embassy to get a visa, but at that time was in Sri Lanka, Australia – the big match was here, the World Cup. So this was good time for me to come out of the country because there was no passport, nothing. Then I paid some money and got my.....passport and I paid altogether two lakhs for the immigration officer in Sri Lanka.....everything I gave them and I pass through the airport and I came to Australia. Actually I did not ask to come to Australia. I had an idea to go to Canada because all my family is in Canada. Nobody in Sri Lanka. Only my two sons. My one son is here, he is a citizen now. I have got two sons in Sri Lanka. One has already gone to Italy, has a hairdresser and he has applied for permanent residence. My one son - last week somebody has kidnapped. This is a joke in Sri Lanka. They are just kidnapped. They just take the money, that is all. They just telephone us and said give some money and they put it down, but my son has been.....for the last four days now.

My wife today, she is very sick. She got heart trouble. She got all sort of problem now when she came here. Thirteen years I am in this country and I never seen my kids. So I came to many, many courts to tell my story. Nobody believe me. So finally I came to High Court. I am very happy to talk to a High Court Judge. Your Honour, tell me what I can do. I just want a protection visa till my country problems over. I have got money in Sri Lanka. I am a wealthy man in Sri Lanka. I cannot get nothing. Also I am now debt for the Australian Government $20,000 for these immigration matters so which I has not – I made arrangements yesterday to pay it by instalment.

Also I made arrangement to sell one of my houses in Sri Lanka because all my houses are in my sister-in-law’s name, we have given power of attorney, so I am selling that house and paying this money within two months time, the whole lot. Until then I want some – trying to pay the immigration money. So, your Honour, tell me what can I do? That is what I want to know.

HIS HONOUR: The immediate application you have or the application I am considering is one which relates not to a protection visa, but to a visa known as a subclass 435 Sri Lanka visa which has been refused. I can deal only with the application in respect of the subclass 435 visa. Is there anything else you wish to say to me about that application?

MR CANDAPPA: The 435 visa?

HIS HONOUR: Yes, which is an application for a visa which it is said you could get only if you had arrived in Australia before 1 November 1993.

MR CANDAPPA: How can I come – I did not have any plans to come - - -

HIS HONOUR: I understand that.

MR CANDAPPA: When I had problem I just went out from the country. I do not think anybody will come like that, your Honour, I would say that Australia is going to give.....if you go before such and such a date. I did not have that kind of thing, I did not want to do that kind of thing, because I am not a.....refugee in this country. I do not have to be like that because I am a qualified man. I am 30 years experience chef and once I apply to immigration for experience for my skills they say I am too old to be a chef. I do not know why they say that. You cannot be old for a chef. So they did
not give me any chance to do nothing here because I did not get any benefit from anywhere for the last 13 years because we are doing this small catering business. Even now my son is doing that because I do not have the worker to do that, so we are paying taxes and we are doing all right. My son is now looking after me because he does not do a job now, he is doing this business. So this is my story.

HIS HONOUR: Thank you.

MR CANDAPPA: I am just asking a protection visa till this problem over in Sri Lanka.

HIS HONOUR: Yes, thank you. Mr Knowles, there has been reference to protection visa applications. Are you aware of any such application?

MR KNOWLES: I would need to seek some instruction about that, your Honour. In terms of what I am aware of, it really only relates to the subclass 435 visa.

HIS HONOUR: Yes, that is the only matter before me.

MR KNOWLES: So I am unaware myself of any protection visa applications having been made in the past.

HIS HONOUR: Perhaps it is sufficient, Mr Knowles, that we are dealing only with this application. Yes, thank you very much.

MR KNOWLES: If your Honour pleases.

HIS HONOUR: On 19 July 2007 the plaintiffs, who are husband and wife, filed an application for an order to show cause directed to the Minister for Immigration and Citizenship and to a member of the Migration Review Tribunal. The application did not identify the decision of the Migration Review Tribunal which it was sought to impugn, but the affidavit of the first plaintiff filed in support of the application recorded that it was a decision of the Tribunal concerning the decision of a delegate of the Minister to refuse the plaintiffs the grant of a visa called a subclass 435 visa which it seems more properly is described as a temporary Class TT subclass 435 Sri Lankan visa.

The plaintiff swears that he first entered Australia on a Sri Lankan passport and was the holder of a tourist short stay visa which expired on 4 March 1996. He applied under section 66 of the Migration Act for a temporary class TT subclass 435 Sri Lankan visa, but on 24 September 1997, a delegate of the Minister refused the grant of that visa on the basis that the plaintiff did not enter Australia on or before 1 November 1993.

The plaintiffs applied to the Migration Review Tribunal to review the decision of the delegate to refuse the grant of that visa. That application for review was, so it seems, not made until as recently as 13 April 2006, even though the original decision of the delegate was made on 24 September 1997.

The Tribunal conducted a hearing in November 2006, but on 5 December 2006 made its decision affirming the decision not to grant the visa which the plaintiffs had sought. The basis upon which the Tribunal founded its decision was that the visa, which the plaintiff sought, required as a condition of its grant that the applicant enter Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit. The Tribunal recorded that international movement records indicated that the plaintiffs first entered Australia on 4 December 1995. Because they had not entered Australia on or before 1 November 1993, the Tribunal concluded that they did not satisfy the conditions for the grant of the visa in question, and that being so, the decision was affirmed.

In their application to this Court for an order to show cause, the applicants assert a number of grounds on which relief is claimed. Those grounds do not condescend to any particularity and it is by no means easy to understand the basis upon which relief is sought in this Court.

In addition, the plaintiffs have earlier applied unsuccessfully to the Federal Magistrates Court of Australia for review of the decision of the Migration Review Tribunal.

The Minister now asks that the proceedings commenced in this Court be terminated summarily. The Minister refers to the proceedings that were brought in the Federal Magistrates Court as reason enough to terminate proceedings and in that respect invokes doctrines of preclusion. Be this as it may, the central difficulty which the plaintiffs faced in the application which they make for relief directed to the Minister and the Tribunal is that on the facts as disclosed in the material filed in support of and in opposition to the application made to this Court, a condition for the grant of the visa in question was not and could not be met by the plaintiffs.

In these circumstances, I have no hesitation in concluding that relief of the kind which the plaintiffs seek would not be granted. That being so and the case being as clear as it is, it is, in my opinion, proper to bring the proceedings to an end at once. It follows that the application of the plaintiffs should be dismissed.

MR KNOWLES: I am sorry, your Honour, the first respondent would also seek costs in respect of the application.

HIS HONOUR: There can, I fear, be no answer to the application made for costs. The proceedings must be dismissed and dismissed with costs.

AT 11.19 AM THE MATTER WAS CONCLUDED