Gagandeep v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 360
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gagandeep v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 360
File number: MLG 1050 of 2018 Judgment of: JUDGE RILEY Date of judgment: 10 May 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – student visa – whether reasonable apprehension of bias – whether denial of procedural fairness – financial capacity – whether a term deposit in a nationalised bank in India could constitute financial support from the government of India. Legislation: Freedom of Information Act 1982 s. 37
Migration Act 1958 ss. 65, 352(4), 375A
Migration Regulations 1994, clause 5A508 of Schedule 5A
The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (India)
The Nationalised Banks (Management and Miscellaneous Provisions) Scheme, 1970 (India)
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50 Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 31 January 2023 Place: Melbourne Counsel for the Applicants: Matthew Crowley Solicitor for the Applicants: FourLion Legal Counsel for the First Respondent: Daye Gang Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: None Solicitor for the Second Respondent: Sparke Helmore Lawyers ORDERS
MLG 1050 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAGANDEEP GAGANDEEP
First Applicant
HARMINDER SINGH
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE RILEY
DATE OF ORDER:
10 May 2023
THE COURT ORDERS THAT:
1.The application filed on 19 April 2018, amended on 4 July 2022, further amended on 8 November 2022, and further, further amended on 13 January 2023 be dismissed.
2.The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (“the Act”).
BACKGROUND
The first applicant is the wife of the second applicant. They are both Indian nationals. The first applicant applied for a student visa as the primary applicant and her husband and their child were secondary applicants. The application in respect of the child was later withdrawn, as he had returned to India to complete his primary school education.
The department wrote to the applicants asking them about their financial capacity. The applicants provided a response. The department later wrote to the applicants saying that the department had received adverse information about a bank deposit they relied upon. The applicants provided a response.
A delegate of the Minister refused the application. That decision was set aside by the Tribunal. The Secretary of the department issued a certificate under s.375A of the Act in respect of six folios. A delegate of the Minister again refused the application. On review, the Tribunal upheld the second delegate’s decision on the basis that the first applicant did not meet the financial capacity requirement for a student visa.
MATERIAL RELIED UPON
The applicants relied upon:
(a)the court book filed on 29 May 2019;
(b)the further, further amended application filed on 13 January 2023 (“the application”);
(c)paragraphs [72] – [84] of their written submissions filed on 8 November 2022, which address ground 1;
(d)the affidavit sworn by Lezaan Strydom on 5 July 2022, which exhibits a transcript of the Tribunal hearing;
(e)the affidavit sworn or affirmed by Lezaan Strydom on 12 January 2023, which exhibits a copy of The Nationalised Banks (Management and Miscellaneous Provisions) Scheme, 1970 (India);
(f)exhibit 1, which is the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (India);
(g)their supplementary submissions filed on 13 January 2023, (except that paragraph 13 was amended at the hearing to read, Evidence of ‘financial support’ before the Tribunal included the Canara term deposit at CB445) which address ground 4; and
(h)their further supplementary submissions filed on 16 February 2023, which address their list of authorities with pinpoint references provided to the court after the hearing.
The Minister relied upon:
(a)his response filed on 24 May 2018;
(b)the court book filed on 29 May 2019;
(c)the affidavit affirmed by Adam Cunynghame on 18 November 2022;
(d)the Minister’s written submissions filed on 27 January 2023; and
(e)his further written submissions filed on 28 February 2023.
GROUND 1
The first ground of review in the application is:
The decision of the AAT affirming the decision of the first respondent’s delegate was vitiated by a denial of procedural fairness in that a fair-minded lay observer might have apprehended that the AAT might not have brought an impartial mind to the review, or in that the applicants were denied a meaningful opportunity to challenge the validity of the non-disclosure certificate issued pursuant to section 375A of the Migration Act 1958 dated 23 October 2015 (Certificate) or a meaningful opportunity to respond to an allegation of serious criminality.
Particulars
1.1The Certificate was before the Tribunal in which the first respondent advanced an implicit allegation that the ‘review applicant’ might attack and cause injury or pose some other ‘danger’ to anonymous ‘informants’, and that there was therefore a public interest in not identifying them or disclosing the information they had provided;
1.2Whereas the reasons advanced by the first respondent for non-disclosure under s 375A were that disclosure ‘may lead the review application to identify the informant(s) and may lead to injury or danger to that person’, the AAT misrepresented those reasons to the review applicants as ‘adverse’ consequences;
1.3The AAT’s reasons for decision contain no statement to the effect that the AAT was not influenced by the first respondent’s confidentially-expressed opinion that one or both of the review applicants were potentially dangerous criminals;
1.4Further or alternatively, by reason of the AAT misrepresenting the reasons advanced by the first respondent for the public interest in non-disclosure, the applicants were denied a meaningful opportunity to challenge the validity of the Certificate, and denied an opportunity to respond to an implicit allegation of serious criminality in the context of the AAT’s review turning on an evaluation of credibility; and
1.5[This particular was withdrawn at the hearing.]
(citations omitted).
Section 375A of the Act provides that:
Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a)has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b)has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2)If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a)the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b)the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
The s.375A certificate in the present case was dated 23 October 2015 and stated:
I certify that, in accordance with s 375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folio/s (89-91, 0117, 0120 & 0121) of file number (BCC2015/1392254) would be contrary to the public interest because:
(a) folio 89-91 contains reports between department officers which refer to information provided in confidence by informant (s) disclosure of which may lead the review applicant to identify the informant (s) and may lead to injury or danger to that person.
(b) folio 0117 contains a note re: referral outcome which was provided in confidence by informant (s) disclosure of which may lead the review applicant to identify the informant (s) and may lead to injury or danger to that person.
(c) folio 0120 - 0121 contains a note in the ‘financial capacity’ in relation to the referral outcome provided in confidence by informant (s) disclosure of which may lead the review applicant to identify the informant (s) and may lead to injury or danger to that person.
As s 375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s 375A(2)(b) of the Migration Act 1958.
The documents covered by the certificate were exhibited to the affidavit affirmed by Adam Cunynghame on 18 November 2022, albeit with the family names of officers of the Australian High Commission in India redacted. The documents record statements relating to the first applicant’s financial capacity. Mr Cunynghame expressly stated in his affidavit that the Minister made no claim for privilege in respect of the documents and did not seek any orders for the confidentiality of the documents. He did not explain the basis on which the names of certain officers had been redacted.
Apart from the family names of certain public servants, there was nothing in the documents covered by the s.375A certificate that the public interest required to not be disclosed.
The Tribunal addressed the s.375A certificate during the hearing as follows:
Member:Now the other thing I need to tell you, is that there is a certificate and perhaps your representative may be best to address this. Pursuant to section 375A of the Migration Act, issued by the Department in relation to a number of documents on your Department file. Specifically, this is that the names and contact details of personnel that the Department has contacted in relation to case notes would be contrary to public interest because if disclosed it could have adverse consequences for those officers. So, I’m of the opinion that the certificate is valid, uhm, the substance of the information I will disclose to you and it is of course already in the delegate’s decision, but you’re invited to make any submissions regarding the validity of the certificate if you wish to at this time. (emphasis added)
First applicant: [Says things about some loans.]
Member:Yes I know that you have a new loan, I understand and I will come to that … So I have spoken to you about the certificate, So Ms Higgins do you wish to make any submissions to me at this stage about that?
Lawyer:[Asks for time to speak to the previous migration agent and put in written submissions.]
Member:There’s a certificate on the department file which prevents disclosure of information. I’ve disclosed under section 3 of the existence of the certificate, um, I’ve told you that I think it is valid, if you wish to make any submissions to me at this stage, I will consider that submission, I’ve told you I’m going to give you the substance of that information, do you wish to challenge the validity of the certificate?
Lawyer:No, I don’t challenge the validity.
Member:Alright so thank you. So what I… the information as I said in the certificate formed the substance of the previous decision of the department and also substantially set out in the decision of the delegate that you have provided me in relation to this application, that those funds for your, the first bank loan you provided on behalf of your father, um, appeared to come from two separate accounts, into his bank account, they were used for the purposes of a loan, and then they were discharged to two other people. Ok? You have provided some information to the Department in relation to those loans, you’ve provided a statutory declaration from your father and also from a Mr Amrit Singh Bra.
The Tribunal addressed the s.375A certificate in its reasons for decision as follows:
13.The Tribunal drew to the attention of the applicant that a certificate pursuant to s. 375A of the Migration Act 1958 had been issued by the Department, in relation to;
i.folio 89 - 91 which contains reports between department offices which refer to information provided in confidence by informants disclosure of which may lead to the review applicant to identify the informants and may lead to injury or danger to that person.
ii.Folio 117 contains a note regarding referral in outcome which was provided in confidence by informants disclosure of which may lead the review applicant to identify the informants and may lead to injury or danger to that person.
iii.Folio 1202121 contains a note in the financial capacity in relation to the referral outcome provided in confidence by the informants disclosure which may lead the review applicant to identify the informants and may lead to injury or danger to the persons.
At the hearing the applicants were advised of the existence of the certificate. The applicants and their representative were invited to make any submissions regarding the validity of the certificate and the information it contained and was advised that if further time was required to consider the certificate they could request it and the Tribunal will consider the request. The applicants made no submissions in respect of the documents covered under the 375A Certificate and their representative did not wish to dispute the validity. The Tribunal explained to the applicants that it had determined the certificate was valid and that it would put to them the substance of the information covered by the certificate in a manner which would not identify the source of the information.
14.The relevant information is set out in the decision of the delegate. The substance of the information is that the department referred the documents to the Australian High Commission in New Delhi and subsequently received adverse information in relation to the documentation. The applicant was invited to comment on this information. The adverse information provided by the high commission were as a result of its investigation was the following;
i.that the loan account 211679300197 was secured against the fixed deposit account number 2116401002683/1 holding INR 1,670,000.00
ii.As of 18 April 2015 the funds available in the fixed deposit had been utilised.
iii.The withdrawn funds were transferred to Mr Swarn Singh’s savings account.
iv.Funds were withdrawn from this account and deposited into two third-party accounts.
v.The funds to initially set up the fixed deposit accounts came from a third party.
In CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50, the High Court considered a statutory analogue of s.375A of the Act. Nettle and Gordon JJ said in that case:
56.The test for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”. A finding of apprehended bias is not to be reached lightly. The determination of whether an apprehension of bias is “reasonable” is not assisted by philosophical conceptions of the varieties of seriousness or materiality.
…
92.What might lead the IAA to decide the appellant's case otherwise than on its merits? The presence of prejudicial material which was irrelevant to the question before the IAA and which the IAA was mandated to consider. As Deane J said in Webb, “knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias”. Is there a logical connection between this and the feared deviation from deciding the case on its merits? Yes. The material was not relevant to the IAA's task. If it influenced the IAA, whether consciously or subconsciously, then the IAA would deviate from deciding the case on its merits.
93.In light of this, might the fair-minded lay observer apprehend a lack of impartiality? Yes. This conclusion is largely a factual one. It is therefore necessary to consider the facts of the case in light of the statutory context.
…
95.The appellant was not aware of the information provided by the Secretary. The Secretary had decided that the information was “relevant”. The IAA then had to consider that information, without the appellant knowing about that information or having any ability to comment on it.
96.The material was prejudicial to the appellant. The material included assertions that the appellant had a history of aggressive or challenging behaviour, had some link to investigations of a “riot” and was himself the subject of investigations for unspecified matters, had been of interest to “Det Intel”, and had been refused bridging visas in the past. These matters had not been disclosed by the appellant in his visa application, and, in many cases, were information of which the appellant was not even aware. Nor were they disclosed in the reasons for the delegate's decision. There is a risk that such information would lead a decision-maker in the place of the IAA to have a bias against the appellant, possibly by thinking that the appellant is not a fit person to hold a visa or that the appellant would be a danger to the community.
97.Of course, it does not matter whether the IAA actually had such a bias, or whether the IAA in fact put the prejudicial information aside. There is a risk of subconscious bias here, and that risk cannot be cured by putting the information aside.
98.The idea that the information could or would be put aside is also difficult to reconcile with the statutory scheme. As noted above, the Secretary endorses the information which he or she gives to the IAA as “relevant” to the IAA's task. The IAA then has to consider that information.
99.The Minister submitted that administrative decision-makers routinely set aside irrelevant material. But that is not the point. The material was not only irrelevant, but also prejudicial. Putting the material aside does not overcome the subconscious bias which might result from seeing that material. Nor did the IAA expressly state that the material had been put to one side.
100.Returning to the test, a fair-minded lay observer might apprehend a lack of impartiality on the part of the IAA where: (i) material has been designated as “relevant” by the Secretary; (ii) the IAA must have regard to that material; (iii) the information is prejudicial to the applicant; and (iv) that information is hidden from the applicant. A fair-minded lay observer may well ask why prejudicial information is provided and hidden from the applicant, if that information was not to be taken into account. In those circumstances, the fair-minded lay observer might apprehend that the decision-maker might decide the case other than on its merits.
101.This conclusion depends on the facts of this case. There may be other cases in which the material given to the IAA was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend a lack of impartiality. The particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract. Here, the information was such that a fair-minded lay observer might think it would bias the decision-maker against the grant of a visa to the appellant.
(footnotes omitted)
The statutory scheme in the present case is similar to the statutory scheme in CNY17 in that, in the present case, the Secretary of the department was obliged to give to the Tribunal documents in the Secretary’s possession or control that the Secretary considered to be relevant to the review: s.352(4) of the Act. It follows that the Secretary issued the s.375A certificate in this case because the Secretary considered the documents it covered to be relevant to the review.
The present case differs from CNY17 in that the documents covered by the certificate in the present case were relevant to the review. They concerned the first applicant’s financial capacity.
The present case also differs from CNY17 in that, in the present case, the Tribunal did disclose the existence of the certificate to the applicants and did purport to summarise it for them.
The present case also differs from CNY17 in that, in CNY17, the prejudicial material was the 50 pages that the certificate covered, whereas, in the present case, the prejudicial material was the certificate itself. The prejudicial material in the present case was that the certificate said, three times, that disclosure of information in the material covered by the certificate could allow the first applicant to identify informants and that may lead to injury or danger to those informants. It seems that the informants were officers of Australia’s High Commission to India (who are part of the Department of Foreign Affairs and Trade) who gave information to officers of the Department of Immigration.
The applicants’ point is that the Tribunal did not disclose to them the Secretary’s opinion that disclosing the documents covered by the certificate might enable the first applicant to identify the informants and might lead to injury or danger to the informants. In its disclosure to the applicants during the hearing, the Tribunal only said that disclosure of the documents covered by the s.375A certificate:
could have adverse consequences for those officers.
The applicants argued that this characterisation of the consequences of disclosure fell far short of what the certificate actually said, which was that disclosure could lead to injury or danger to the officers. The applicants further argued that the implication of the certificate was that they were potentially dangerous criminals who might injure or endanger officers. The applicants submitted that the Tribunal did not convey this implication to them, or seek their response to the implication.
The Minister did not dispute that there was a difference between saying that disclosure might have adverse consequences and saying that disclosure might lead to injury or danger to the officers. There obviously is a difference. “Adverse consequences” is a bland phrase that could mean something quite anodyne. While “adverse consequences” could cover a range of consequences, the phrase does not necessarily include the startling allegation that the applicants might injure or endanger officers.
The Minister submitted orally that it was common practice to not disclose the identities of public servants. The applicants objected to that evidence being given from the bar table, particularly if it implied that it was common practice for s.375A certificates to withhold the identities of public servants. I uphold that objection. There is no evidence before the court about what s.375A certificates commonly say, or whether the particular Tribunal member in this case was familiar with that allegedly common practice.
The Minister submitted that the language that disclosure might “lead to injury or danger” to a person was commonly used to protect the privacy of public servants, such as in Privacy Principle 2 and in s.37(1)(b) of the Freedom of Information Act 1982 (“FOI Act”).
In fact, s.37(1)(b) of the FOI Act deals with a different topic. However, s.37(1)(c) of the FOI Act provides that a document is exempt from disclosure under the FOI Act if its disclosure:
… would, or could reasonably be expected to:
…
(c) endanger the life or physical safety of any person.
Privacy Principle 2 states, under the heading “anonymity and pseudonymity”:
2.1Individuals must have the option of not identifying themselves, or of using a pseudonym, when dealing with an APP entity in relation to a particular matter.
2.2 Subclause 2.1 does not apply if, in relation to that matter:
a.the APP entity is required or authorised by or under an Australian law, or a court/tribunal order, to deal with individuals who have identified themselves; or
b.it is impracticable for the APP entity to deal with individuals who have not identified themselves or who have used a pseudonym.
I accept that there are very good policy reasons for the identities of public servants not being disclosed. I appreciate that there is nothing in the Act which simply says that the Secretary may redact the names of public servants from documents given to the Tribunal. However, that circumstance does not address the claim that the s.375A certificate in this case implied that the applicants were people who might injure or endanger officers.
The Minister argued that no such implication arose because the certificate just used standard language, and because there was nothing else in the materials that suggested that the applicants might injure or endanger officers.
I do not accept the “standard language” point. The certificate uses words that have a meaning. They clearly imply that the applicants could injure or endanger someone. Nor do I accept the “no other evidence” point. The implication was sufficiently made by the certificate itself. The Minister’s argument was essentially that the certificate did not mean what it said. I cannot accept that argument.
The Minister’s claim that the certificate did not really mean that the applicants might injure or endanger officers raises the question, “What was the public interest (if not avoiding injury or endangerment) in the documents not being disclosed?” Arguably, there is a public interest in the privacy of public servants not being breached. It may be that the s.375A certificate in this case could simply have said that the disclosure of the nominated documents would be contrary to the public interest because it would breach the privacy of public servants. However, the certificate did not do so. That, in itself, corroborates that the s.375A certificate implies that the applicants might injure or endanger an officer.
It is unfortunate that there seems to be no mechanism in the Act to redact the name of a public servant without withholding the entire document in which the public servant’s name appears.
In any event, as the matter stands, it seems to me that the certificate in this case clearly implied that the Secretary was of the opinion that the applicants might injure or endanger an officer. The natural meaning of those words is that the applicants might physically injure or physically endanger an officer. The Tribunal did not convey those meanings to the applicants, and thus did not afford the applicants procedural fairness. This is a jurisdictional error.
However, I do not accept that there might have been a reasonable apprehension of bias in this matter. A fully-informed, fair-minded, lay observer would have reasonably understood that:
(a)the Tribunal would have been well aware that the only thing that was not to be disclosed in the documents covered by the s.375A certificate was the family names of certain public servants;
(b)the Tribunal would have recognised the privacy of the public servants as being a proper reason to withhold the documents, and the substantial reason for the creation of the s.375A certificate; and
(c)the Tribunal would have considered that the prospect of the applicants actually injuring or endangering officers was extremely low, which was why the Tribunal summarised the s.375A certificate by referring to adverse consequences, rather than injury or endangerment.
In relation to the jurisdictional error mentioned above, the Minister argued that the error was not material, because there was no possibility of the applicants having a successful outcome. The Minister said that was because the applicants could not satisfy the financial capacity requirement, which is addressed in ground 4 below.
GROUND 2
The second ground of review in the application was withdrawn in the further, further amended application filed on 13 January 2023.
GROUND 3
The third ground of review in the application was withdrawn in the further, further amended application filed on 13 January 2023.
GROUND 4
The fourth ground of review in the application is:
The AAT’s decision was vitiated by a constructive failure to exercise jurisdiction, or by a denial of procedural fairness, or a misconstruction or misapplication of clause 5A508 of Schedule 5A of the Regulations with respect to what amounts to access to funds from an acceptable source:
Particulars
4.1Athe funds available from the Canara Bank was ‘financial support from ... the government of a foreign country’ under subclause 5A508(2)(e)(iii)–which funds were not required to have been held for 3 months before the date of the application–in that Canara Bank is an organ or instrumentality of the Government of India.
To qualify for a student visa, the first applicant had to meet the financial capacity requirements specified in cl.5A508 of Schedule 5A of the Migration Regulations 1994 (“the Regulations”). She had to give evidence that she had funds from an acceptable source that are sufficient to meet [specified] expenses for the first 12 months. “Funds from an acceptable source” were defined in cl.5A508(2) of the Regulations as follows:
funds from an acceptable source means one or more of the following:
…
(b) … a money deposit that an acceptable individual has held for at least 3 months immediately before the date of the application;
…
(e) financial support from:
…
(iii) the government of a foreign country;
…
In the present case, the Tribunal focussed on the requirement in cl.5A508(2)(b) of the Regulations, being that an acceptable individual had a money deposit held for at least three months before the date of application. The Tribunal found that requirement was not satisfied. The applicants did not ultimately challenge that finding in this court.
However, the applicants argued in this court that the Tribunal should also have considered whether, and found that, the first applicant had financial support from the government of a foreign country. The applicants did not actually argue that point before the Tribunal. However, they said that the issue arose on the materials before the Tribunal.
The applicants said that the issue arose because a document provided to the Tribunal (at CB344) was from the Allahabad Bank and had, in small writing under the name of the bank in the letterhead, the words, “A Govt. of India Undertaking”.
It is well established that, for the Tribunal to be required to consider an issue that was not expressly raised by the applicant, the issue must arise clearly from the materials. I do not consider that the issue in the present case arose clearly from the materials. The Tribunal could not have been expected to even see the words “A Govt. of India Undertaking”, much less take the next step of asking whether the first applicant was receiving financial support from a foreign government.
The document from the Allahabad Bank was headed, “Sanction of Loan under Education Loan Scheme”. It is possible that the Indian Government, through the Allahabad Bank, provides loans to students through a formal scheme for that purpose, and that could be described as financial support from the government of a foreign country. However, the amount lent by the Allahabad Bank was about $30,000, when the amount required to meet the financial requirement was about $40,000. Even if the Tribunal had considered the issue, the Allahabad Bank loan would not have been enough.
The applicants then argued that another fund relied on by the applicants, being the Canara Bank term deposit, could have been added to the $30,000 approximately in the Allahabad Bank, and that would have been sufficient. They said that the Canara Bank was also a government of India undertaking, because all of the banks in India had been nationalised. They provided evidence of the bank nationalisation, being The Nationalised Banks (Management and Miscellaneous Provisions) Scheme, 1970 (India) and The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (India).
However, the difficulty then is that the money in the Canara Bank was not a loan under an educational loan scheme. It was a term deposit. It was the first applicant’s father’s own money. That cannot properly be described as financial support from the government of India.
The concept of “financial support from … the government of a foreign country” is not defined in the Regulations, but it presumably means more than a deposit in a nationalised bank of a foreign country. In the present context, it would certainly include a government-funded scholarship, but might also mean a loan at below market rates for educational purposes. The term deposit in the Canara Bank was not financial support from the government of India.
The applicants then said that, if the Tribunal had asked them about financial support from the government of India, they could have provided more evidence to the Tribunal about other sources of funds. However, that is not how reviews by the Tribunal proceed. It is for the applicants to put such material before the Tribunal as they wish.
Ground 4 cannot succeed.
CONCLUSION
As ground 4 cannot succeed, the applicants were unable to satisfy the financial capacity requirement. Because of that, the error identified in ground 1 is immaterial. It follows that the application must be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 10 May 2023
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