1701405 (Refugee)
[2020] AATA 3955
•4 September 2020
1701405 (Refugee) [2020] AATA 3955 (4 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1701405
COUNTRY OF REFERENCE: Vietnam
MEMBER:Mara Moustafine
DATE:4 September 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 04 September 2020 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from debt collectors and gangsters – credibility – period as unlawful non-citizens – delay in applying for protection – credibility – inconsistent evidence – debts to family and friends, or role in work-related bribery and accusation of stealing from company – secondary applicant child returned to home country – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 January 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Background
The first named applicant (the applicant) is a citizen of Vietnam, who arrived in Australia on a [Visitor visa] [in] February 2014. She remained in Australia unlawfully between 10 May 2014 to 25 August 2015. She applied to the Department of Immigration and Border Protection for a Protection visa on 9 November 2015, including her daughter, born in Australia in [Year], the second named applicant, in her application.
Evidence before the Department
Protection Visa Application
According to her Protection visa application form, the applicant was born in Thanh Hoa, Vietnam in [Year]. She completed secondary schooling in Thanh Hoa and several courses at [a University] in Hanoi, as well as a Bachelor of [Subject] in [Country 1] from 2006 to 2008. She indicated that she was living in Hanoi before coming to Australia and identified her occupation as ‘house duties’. Her parents and brother live in Vietnam. The applicant departed Vietnam legally [in] February 2014 on her Vietnamese passport issued [in] 2011. She stated that she is separated from her spouse since 2015 and that his whereabouts were unknown.
The applicant’s protection claims, as outlined in her application form can be summarised as follows:
a.She left Vietnam because she and her husband were experiencing financial hardship and borrowed money from family and friends in Vietnam which they could not pay back. They had to leave the country as these people threatened to harm them.
b.She fears that if she returns to Vietnam, she and her child will be harmed by debt collectors as they have threatened to kill them once they return.
c.They experienced harm in Vietnam as the debt collectors hired gangsters who would go to her house, bash them up and threaten to kill them if they didn’t pay them back. They had to move to live elsewhere (different address and different town) so the gangsters could not find them.
d.They did not seek help in Vietnam because they were too scared. She does not believe the authorities in Vietnam will protect her because they believe this is a personal matter that they should deal with it themselves. She fears they will cause harm to her family and her new-born child.
e.She is unable to relocate in Vietnam because she does not know where to go with her newborn child.
The applicant provided to the Department a copy of her Vietnamese passport, including pages showing entry stamps to [Country 2], [Country 3] and Australia and a [Country 3] visa. She also provided a birth certificate for the secondary applicant issued in New South Wales.
Protection visa interview
The applicant attended a Protection visa interview with the delegate on 28 November 2016. The Tribunal has listened to the audio recording of the interview.
Department’s decision
The delegate refused to grant the visas on 13 January 2017 because he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations either under the refugee or complementary protection criterion.
Evidence before the Tribunal
On 27 January 2017, the applicant applied to the Tribunal for a review of the Department’s decision.
On 23 July 2020, the Tribunal wrote to the applicant advising her that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her case at a hearing on 11 August 2020 by video using Microsoft Teams. The applicant was advised that, due to the COVID-19 pandemic, the Tribunal was not holding face to face (in person) hearings since 23 March 2020 and was currently closed to all visitors until further notice.
The hearing
The applicant appeared before the Tribunal by telephone on 11 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
At the start of the hearing the applicant confirmed that she was alone and in a quiet and private place. She confirmed that she was happy to proceed with the hearing by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal discussed with the applicant her background in Vietnam, her reasons for leaving Vietnam and why she fears returning there. During the hearing the applicant told the Tribunal that her daughter, the secondary applicant, had returned to Vietnam in 2017 and was living with her grandparents. Where relevant to her protection claims, the applicant’s evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Analysis, Findings and Reasons
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
At the start of the hearing, the applicant confirmed that all the information in her application form was true and correct and that she did not wish to make any changes or to add anything. She said the application form had been filled in by her friend who had already returned to Vietnam. She confirmed that her friend read back the information to her and she signed the declaration that the information provided was complete and correct in every detail.
The Tribunal found the applicant’s evidence at hearing vague, shifting, implausible and completely inconsistent with the claims made in her Protection visa application. This raises serious doubts about her truthfulness and general credibility of her evidence.
The applicant told the Tribunal that she came to Australia in February 2014 on a 3-month tourist visa with her then husband because she had problems in Vietnam. She said she arrived with the intention of applying for a Protection visa and chose to come to Australia because it was harder to get a refugee visa in other countries. However, the applicant did not apply for protection until November 2015. She claimed that this was because people in the Vietnamese community office told her it would be very difficult for her to apply for such a visa as Vietnam was no longer a country at war and she could not afford to pay the lawyer $5000 to lodge her application. It was only when she was arrested by Immigration police while working at a [shop], that they told her she could apply for a protection visa.
The applicant claimed she had experienced harm in Vietnam while working for [a] company in Hanoi between 2012 and 2014 variously, as a [Country 3]-Vietnamese interpreter, [Occupation] and ‘middleman’ with foreign partners. She told the Tribunal that, in order to win major [projects] for their [Country 3] partners the company bribed local authorities and police. Initially, she said the Vietnamese director asked her to ‘fake documents’ [deleted]. Later, she shifted her evidence, saying this was done by another department and that she [deleted] and only did this work in the last three months before she left the company in December 2013 or January 2014. She claimed that the company did not want her to quit because she knew the scale of the bribery (US$1 million) so gangsters were sent to destroy her property. They accused her of stealing the money and demanded that she provide documents, which she did not have. The applicant claimed that, although she was innocent, she paid the company US$ 100,000 to leave her alone. But the gangsters continued to threaten her and damage her property. She reported this to the police, but they took no action as they had been paid off and responded that it was a civil matter. The applicant said she was afraid to return to Vietnam as the same things may happen again and she did not want it to impact on her two school aged children.
As discussed with the applicant, the Tribunal finds it dubious that she would pay so much money to the company that she was not guilty of stealing from, as they claimed; or that she would have been able to get so much money together from her savings and parents’ property sale, given her monthly salary of VND 15-20 million (US$750-US$1000 month, notwithstanding her claim that she received commissions of US$40,000- $50,000 for introducing new [Country 3] partners. Given her six year absence from Vietnam and her evidence that she did not know whether or not the company, whose new name she said she could not remember, was still operating with the same people in charge, the Tribunal does not find it plausible that she would still be targeted by the former director or leaders of the local authorities.
Significantly, the applicant’s account at hearing of her experiences in Vietnam and the reasons she fears harm there bears no resemblance to the claims made in her protection visa application form. There, she stated that she was at risk of harm from friends and relatives who threatened her because she and her husband had borrowed money which they could not afford to repay. She feared that if she returned to Vietnam, she and her child would be harmed by debt collectors who had threatened to kill them once they returned. In her application she made no mention of ever having been employed by any company and identified her occupation as ‘house duties’.
The Tribunal raised this inconsistency with the applicant, noting that it raised serious doubts about her truthfulness and general credibility. She responded variously that the lawyer who prepared her first application form told her to be brief, that she was nervous she might not be eligible for the visa and that she did not dare tell the story in detail as the lawyer had a lot of connections in Vietnam and she was afraid she would be in danger if the information leaked. Subsequently, when her friend helped her with her second application form, she told the applicant that her claims had to match those in the first application. As discussed with the applicant, the Tribunal finds these explanations unpersuasive, noting that she signed a declaration that all the information submitted was ‘complete, correct and up to date in every detail’. Furthermore, the applicant affirmed this at the beginning of the hearing and did not take the opportunity to make any changes when asked if she wished to do so.
As discussed with the applicant, the credibility of her claims is further undermined by her delay in applying for a protection visa for almost two years. The Tribunal finds dubious her claim that she arrived in Australia with the intention of seeking protection but delayed doing so variously because she had no knowledge of the law or good English or anyone to help her or could not afford to pay the lawyer. In the Tribunal’s view, having chosen to remain in Australia unlawfully and made no effort to address her visa status until she was arrested for working illegally,
Considering the multiple concerns discussed above, the Tribunal is not satisfied that the applicant has given a truthful account of her experiences in Vietnam or that any of her evidence can be relied upon. The Tribunal is not satisfied that the applicant had to leave Vietnam because she was threatened with harm by family and friends from whom she and her husband had borrowed money which they could not repay. Further, the Tribunal is not satisfied that the applicant experienced harm in Vietnam while working for [a] company, including having gangsters sent to destroy her property or to threaten her by the director of the company, corrupt local officials or police.
It follows that the Tribunal is not satisfied that if the applicant returns to Vietnam now or in the reasonably foreseeable future, she will be harmed by debt collectors sent by family and friends to kill them on return, nor by gangsters who will go to her house, bash her up and threaten to kill her if she does not repay the debt. Nor does the Tribunal accept that she will face serious or significant harm at the hands of [the] company, local officials, hired gangsters or police. In the Tribunal’s view, the applicant fabricated her protection claims in order to achieve a migration outcome.
For the reasons given above, the Tribunal is not satisfied that, if the applicant were to return to Vietnam now or in the reasonably foreseeable future, there is a real chance that she will be harmed for any of the other reasons set out in s.5J(1)(a) of the Act. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Vietnam.
The Tribunal has also considered whether the applicant is entitled to complementary protection for any of the reasons claimed. Having rejected the entirety of the applicant’s claims, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm.
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Mara Moustafine
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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