1716089 (Refugee)
[2022] AATA 3924
•30 September 2022
1716089 (Refugee) [2022] AATA 3924 (30 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Rajendra Chaudhry (MARN: 1571586)
CASE NUMBER: 1716089
COUNTRY OF REFERENCE: Fiji
MEMBER:Penelope Hunter
DATE:30 September 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 September 2022 at 3:45pm
CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion and religion – accused of involvement in Christian dissident group – beaten by military – previous protection visa application with partner invalid – no supporting evidence provided and no appearance at hearing – applicant’s responsibility to specify claims and provide evidence – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J, 36(2)(a), (aa), 65, 425(3), 426A(1A)(a)
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 29 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 30 January 2017. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Act.
The applicant was represented in relation to the review.
On 27 July 2022, the Tribunal wrote to the applicant and advised that the matter may shortly be scheduled for hearing. It was requested that the applicant provide any additional evidence related to the application and advise if any of their details had changed. The applicant was also requested to return within 7 days a Pre-Hearing form. The Tribunal did not receive a response.
On 29 August 2022, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments, at 10:30 am on 30 September 2022.
On 29 August 2022, the representative of the applicant responded via email to the Tribunal attaching correspondence relating to a different Tribunal application and a postponement of that hearing was requested on the basis that the applicant’s representative had a matter in the Family Court in Auckland on 8 and 9 September 2022.
On 30 August 2022, the Tribunal received a further email from the representative of the applicant which requested that the Tribunal disregard the request in his email of 29 August 2022.
The applicant did not appear before the Tribunal on 30 September 2022 at the appointed time. No satisfactory reason for his non-attendance has been given. The Tribunal has not received a “Response to hearing invitation form’ completed by the applicant or any further documents or submissions in relation to his application.
The hearing invitation sent to the applicant on 29 August 2022, advised the applicant that if they did not attend the hearing, the Tribunal may dismiss the application for review or that it may make a decision on the review without taking further action to allow or enable the applicant to appear before it. No explanation has been offered for the applicant’s non-appearance. The Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 425 of the Act. The Tribunal has considered the initial request by the representative of the applicant for a postponement, but again notes that correspondence was not material relevant to the applicant but different Tribunal proceedings which were not listed on 30 September 2022. In any event a prompt request followed for the correspondence to be disregarded. It does not consider that this accounts for the non-appearance of the applicant in the matter.
In the circumstances the Tribunal proposes to proceed to a determination in the matter in accordance with s 426A(1A)(a) of the Act without taking further steps to allow the applicant to appear.
For the following reasons the Tribunal has determined that the decision under review should be affirmed.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Mandatory considerations
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.
INFOrmation before the Tribunal
The applicant is a [age] year old male, born in [Town 1], Fiji. The applicant arrived in Australia on a tourist visa issued on 21 December 2016. He initially lodged a protection visa application with his de facto partner [Ms A], as her partner, on 30 January 2017. The application for [Ms A] was found to be invalid due to a bar pursuant to s 48 of the Act as [Ms A] had a previous protection visa application.
The applicant has [children] from a previous marriage, aged [age] to [age] years, currently residing in Fiji. He lists in his application that had received a bachelor degree in [Discipline 1] in [Year] and that he previously worked from [year] to 2017 in [a] section of [Employer 1 in] Fiji.
In the visa application the applicant set out the following claims for protection:
i.He left Fiji because he feared for his life as he had been falsely accused of being involved in a dissident group the Western Christian of Fiji. It is a group that fights for independence from Fiji and he was beaten up by the military as a result of this. He lost two [teeth] and had bruises to his face and other parts of his body like his back and ribs.
ii.He fears further harm and interrogation will happen to him if he returns to Fiji. The case of the Western Christian state is still pending in court and as long as their case is still pending his life is under threat.
iii.He was unable to seek help within his country as he did not trust the police or security authorities because they are all controlled by the dictatorial regime. The police is a joke because it is headed by a former military man.
iv.He could not move to other parts of the country because the whole of Fiji is ruled by this regime and there is no place to hide or seek refuge.
The applicant filed several documents with his application including copies of his identity documents, birth certificates for his children, and two articles produced by Amnesty International, Beating Justice: How Fiji’s security forces get away with torture, 2016 and Fiji Protect Freedom and Stop Torture, submission to the UN Universal periodic review, October- November 2014.
FINDINGS AND REASONS
The issue in this matter is whether the applicant is a ‘refugee’ or a person entitled to complementary protection, or a member of the same family unit as a person who is a refugee or meets the requirements for complementary protection as those terms are defined under the Act.
Identity and country of reference.
On the basis of the applicant’s Fijian passport and other identity documents submitted to the Department, and the fact that there is no evidence to suggest the applicant has citizenship of or a right to enter or reside in another country, the Tribunal is satisfied that the applicant is [the applicant], and that the country of reference is Fiji.
Is the Tribunal satisfied as to the claims of the applicant?
The mere fact that a person claims to fear 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, an applicant’s claim 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.
A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. 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 169–170.
The Tribunal has not had the opportunity to examine the applicant at a hearing. The reason that the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing was because, as the applicant was advised in writing, it had assessed that it could not make a decision favourable to the applicant on the material before it. If the Tribunal had been satisfied that the applicant could receive a favourable outcome on the information before it, it could have dispensed with the hearing and there would be no need for the applicant to appear: s 425(3) of the Act. It is noted that the applicant did not attend an interview before the delegate of the Department. His claims have never been tested.
Without speaking to the applicant or testing his claims, the Tribunal cannot be satisfied that they are true and is unable to give them any weight.
The applicant has only made a brief general claim that he was assaulted by the Fijian military. He has provided no information as to when this incident occurred, or the reasoning or circumstances in relation to the incident. These issues were also brought to the attention of the applicant in the decision record of the delegate, the content of which the applicant has been on notice of since July 2017.
The Tribunal does not accept that if the applicant’s claims were true that they would lack detail.
Aside from his identity documents, and two general articles by Amnesty International that do not specifically refer to the applicant, he has not provided any material to the Department or the Tribunal to corroborate his claims. He indicated in his protection visa application form that he would provide later a doctor’s report and evidence letter to support his claims. No further evidence was submitted to the Tribunal or the Department. The applicant has been invited on several occasions by the Tribunal to provide evidence and submissions to support his application.
There is no corroboration for the applicant’s claims and the Tribunal does not accept that if the applicant’s claims were true he would lack supporting evidence.
The applicant has claimed that he was falsely accused of being involved in the dissident group, the Western Christians of Fiji. Without further information from the applicant regarding the identity of this group, the Tribunal has difficulty assessing the reliability of claims of the applicant as to an accusation of involvement with the group, or the risk arising from implied association from the group. The Tribunal could locate no reference in relevant country information to the Western Christians of Fiji. The articles submitted by the applicant from Amnesty International provide no assistance to the Tribunal identifying this group. Having regard to the applicant’s claim that the group were seeking independence from Fiji, and that they had a court case pending, it may be that the applicant is referring to a group accused of holding meetings from 10 October 2014 to 4 November 2014 and signing a document entitled “The Establishment of the Nadroga-Navosa Christian State.’[1] Relevantly DFAT reports in 2017, that in:
“[A]ugust 2015, several media outlets reported around 40 indigenous ‘rebels’ had been arrested for conducting ‘military-style training’ in Ra province in the north of Fiji’s main island, Viti Levu. Police officers were deployed to the province in search of alleged firearms used, but none were reportedly found. On 16 August 2015, 16 people were reportedly arrested in Nadroga-Navosa province for causing communal antagonism and sedition for signing the ‘Provincial Institutions of Self Government’ of the Nadroga Navosa Christian State. During the week of 10-15 August, a further 37 individuals associated with the Ra Sovereign Christian State were arrested.[2]
Yet following on from these incidents, in July 2016, DFAT reported that there had been no further arrests for sedition since August 2015,[3] the trial of 14 remaining individuals from Nadroga province was reported to proceed in October 2017.[4] There is no reference to groups who organise and take actions to create Christian separatist states within Fiji in the most recent DFAT report.[5]
[1] Ahmed F 2015, “Nadroga sedition case adjourned to February 2’, Fiji Sun, 2 February 2015
[2] DFAT Country Information Report – Fiji, 27 September 2017 at 3.52
[3] Fiji Country Information Request: PISAI and the Fiji Native Government in Exile, DFAT 29 July 2016.
[4] DFAT Country Information Report – Fiji, 27 September 2017 at 3.55
[5] DFAT Country Information Report – Fiji, 20 May 2022
On the limited information contained within the applicant’s claims the Tribunal is not satisfied that they are supported by independent country information. He has not stated that he was actually involved with the Western Christian State prior to his departure from Fiji. He has not stated that he had been charged with any offences and he left Fiji in December 2016. The applicant has not demonstrated he has ever had or continues to have a profile that would be of interest to the Fijian authorities. There was no substantive evidence or supporting country information to indicate that the applicant would be targeted for harm upon return to Fiji. It is not the task of the Tribunal to make the case of the applicant.
Conclusion
In assessing the totality of the evidence before it the Tribunal does not accept that the applicant left Fiji because he was assaulted by the military in the past because he was falsely accused of being involved with the Western Christians of Fiji. It is not accepted, and the applicant has not claimed that he engaged in any political activity in the past in Fiji, or that he would be arrested, interrogated, assaulted or events would lead to his demise if he returned to Fiji for any reason.
The Tribunal is not satisfied that the applicant’s claims are factual. The Tribunal rejects them in their entirety. The Tribunal is not satisfied that the applicant is of any interest to the police, the military, or the Fijian government. It is not satisfied that he is of any adverse interest to any person, group or authority in Fiji.
Refugee
For the reasons given above the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm if returned to Fiji due to his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection
Again, for the reasons set out above, 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 Fiji, there is a real chance that the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Membership of the same family unit
There is no information before the Tribunal that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Penelope Hunter
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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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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