1825677 (Migration)
[2018] AATA 4938
•12 September 2018
1825677 (Migration) [2018] AATA 4938 (12 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1825677
MEMBER:Amanda Mendes Da Costa
DATE:12 September 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Statement made on 12 September 2018 at 4:37pm
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by visa conditions – history of poor compliance – adverse immigration history – period of unlawfulness – serious criminal conviction – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 73, 116
Migration Regulations 1994 (Cth), r 2.20, Schedule 2, cls 050.211, 050.212, 050.221, 050.223, Schedule 8, Conditions 8101, 8401, 8506CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
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 to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 28 August 2018. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria for a Subclass 050 visa include cl.050.212 which provides 17 separate criteria, each of which provides a ground for the grant of a Subclass 050 visa. The primary criteria for the grant of a Subclass 051 visa include cl.051.211 which provides five separate criteria, each of which provides a ground for the grant of a Subclass 051 visa.
The decision to refuse to grant the visa was made on 31 August 2018 on the basis that the delegate was not satisfied that the applicant met any of the criteria in cl. 050.212 or in cl.051.211 for the grant of a Subclass 050 or Subclass 051 visa respectively.
The Tribunal notes that on 20 July 2018 the applicant applied for a Subclass 820 Partner visa on the basis of his relationship with [Ms A]. This application is yet to be determined by the Department.
The applicant appeared before the Tribunal on 7 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s ‘wife’ and [Ms B], the applicant’s mother-in-law.
The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. An Arabic interpreter present during the majority of the hearing but the applicant indicated to the Tribunal that he did not require her assistance and she left after the applicant had completed his evidence, at the suggestion of his representative. The applicant spoke to the Tribunal in English and the Turkish interpreter assisted [Ms B] (by telephone) when she gave her evidence to the Tribunal.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues the Tribunal has to decide are:
·Whether the applicant is eligible to be granted a Bridging E visa;
·If the applicant is eligible to be granted a Bridging E visa, what conditions should reasonably be imposed on that visa in addition to any mandatory conditions;
·If conditions are imposed on any Bridging E visa that may be granted to the applicant, will he comply with those conditions; and
Background
The applicant is [age] years and is a National of Lebanon. He arrived in Australia in 2011 on a Student visa but ceased the course after two semesters. The Department cancelled his Student visa on 30 May 2013 under s.116 of the Act as he was found not to be a genuine student. Between 30 May 2013 and 12 June 2014 he was residing in the community as an unlawful non-citizen.
On 12 June 2014 the applicant lodged an application for a protection visa and was granted a Bridging C visa. This application was refused on 10 November 2016 and he sought a review with the Tribunal on 18 November 2016. This review is yet to be determined. On 28 November 2016 the Department granted the applicant work rights in association with his Bridging visa.
On 11 July 2018 the applicant was issued with a Notice of Intention to Consider Cancellation of his Bridging visa under s.116 of the Act. After considering the applicant’s response to this notice, the applicant’s visa was cancelled on 11 July 2018 and he was placed in immigration detention. On 13 July 2018 the applicant lodged an application with the Tribunal for review of the Department’s decision to cancel his visa. On 25 July 2018 the Tribunal affirmed the cancellation decision and the applicant is seeking judicial review of that decision. That review is yet to be determined.
The delegate of the Minister in his decision to refuse the applicant a Bridging E visa found that he was not satisfied that he would comply with the conditions imposed on the visa. This was based on the following:
·the applicant’s immigration history;
·the applicant’s conviction in 2014 for urging a dog to attack a person;
·the applicant’s conviction [in] August 2018 for trafficking cannabis, cultivating cannabis and using cannabis;
·the finding by a court in early 2018 that the applicant was guilty (without conviction) of unlawful assault and fail to answer bail, for which he was ordered to undertake a [rehabilitation program].
·the applicant’s use of cannabis since the age of 15 years; and
·the applicant lack of employment in Australia.
The Tribunal hearing
At the hearing, the Tribunal informed the applicant:
·The Tribunal was reviewing the decision by the delegate of the Minister to refuse his application for a Bridging E visa;
·The delegate of the Minister had raised a concern that the applicant would not comply with the discretionary conditions 8101, 8207, 8401, 8506 and 8564 such that consideration of these conditions is an issue before the Tribunal, if the Tribunal considers the imposition of such conditions necessary.
·The Tribunal was satisfied the applicant had made a valid application for a Bridging E visa as he had made an application for a substantive visa that can be granted in Australia, being a partner visa, and that application had not yet been decided, which meets the requirements of cl.050.212(3) of Schedule 2 to the Regulations; and
·The only issue before the Tribunal therefore, was whether [the applicant] would comply with any conditions the Tribunal considers reasonable to impose if [the applicant] were granted a Bridging E visa.
Evidence of the applicant
The applicant told the Tribunal that he came to Australia in 2011 on a Student visa. He was enrolled in a Batchelor’s degree in [a particular discipline]. He ceased attending this course after two semesters and remained on his Student visa until May 2013 when the visa was cancelled by the Department.
The applicant then remained an unlawful non-citizen for approximately 12 ½ months until he contacted the Department in 2014. The Tribunal questioned the applicant about this. He told the Tribunal that he was not aware that his visa had ended until a friend suggested that he check his visa status with the Department. Upon doing this, he was advised by Departmental staff that his visa had been cancelled. In answer to questioning by the Tribunal, the applicant said that he had not realised that he was required to keep the Department informed of his contact details in Australia and had changed addresses without informing the Department. The Tribunal does not find the applicant’s explanation regarding the cancellation of his Student visa and the period in which he was an unlawful non-citizen to be credible and does not accept that he would have been unaware of the conditions of his Student visa including the requirement to keep the Department advised of his contact details or the requirement to continue his studies whilst subject to the Student visa.
After being advised by the Department that his Student visa had been cancelled, the applicant lodged an application for a Protection visa. That application was refused and the applicant has sought review of that decision. That application is yet to be heard by the Tribunal.
[In] 2014 the applicant was found guilty of wilfully urging a dog to attack a person and [fined] without conviction.
The applicant met his wife, [Ms A] in early 2015. The couple have been together since and in March 2016 married in a religious ceremony in a Mosque. Although they have not had a civil marriage ceremony, they consider themselves to be husband and wife. The couple’s children (twins) were born in August 2017. Approximately two years ago the family moved to [Town 1] where they live in private rental accommodation.
The Tribunal questioned the applicant about his employment history in Australia. He told the Tribunal that he had never held employment in Australia because he had been unable to find the right employment. The applicant said that he had searched (unsuccessfully) for work as [an occupation] and now realised that he should have been prepared to accept other forms of work. He has been supported in Australia by payments from community organisations to cover his living expenses. His wife is in receipt of Centrelink benefits to support her and their two children.
In 2016 the applicant committed an act of violence against his wife, during an argument between the couple. The applicant threw [an object] at his wife, which hit her in the chest, causing a small bruise. [Ms A] subsequently went to her mother’s house and when the applicant followed her there her mother telephoned the police. They attended and removed the applicant who was charged with unlawful assault and bailed to appear at court on a later date. The applicant told the Tribunal that he regreted his actions in assaulting his wife.
The applicant and his wife attended Court on the first occasion the assault charge was listed. [Ms A] told the police prosecutor that she and the applicant had reconciled after the assault and she wanted the charge to be withdrawn. The applicant understood that the matter would not proceed any further, given his wife’s attitude and her conversation with the prosecutor. He left court with some papers (the contents of which he could not recall) and was not aware that there was an outstanding warrant for his arrest until early 2018 when he visited [Town 1] Police station to make an enquiry about an unrelated matter. He was then informed that he had failed to attend court on [date] December 2017 in relation to the assault charge. On [date] April 2018, the charges of assault and fail to answer bail were heard in the Magistrate’s Court where the applicant pleaded guilty and was required to give an undertaking without conviction. A condition of that undertaking required the applicant to participate in a [rehabilitation program]. The applicant told the Tribunal that he has contacted the organisation providing this program and was advised that he can complete the program upon his release from detention.
The Tribunal does not find the applicant’s explanation for failing to answer bail in relation to the unlawful assault charge, to be credible or convincing. The Tribunal considers that the applicant would have been aware that the charge had not been withdrawn and does not accept that he would not have read the papers which he took from the Court.
On 13 June 2018 police executed a search warrant on the applicant’s home and as a result of items found there, charged the applicant with possession, cultivation and trafficking in cannabis. Of the five original charges, two were subsequently withdrawn by police. Accordingly the Tribunal has not taken the charges which were withdrawn, into account in making its decision. Upon being charged, the applicant was granted bail, the conditions of which included requirements that he report to police weekly; reside at his home address and abstain from using drugs of dependence.
There is no evidence before the Tribunal to suggest that the applicant failed to comply with the conditions of his bail, prior to being placed in immigration detention on 11 July 2018.
[In] August 2018 the applicant pleased to and was found guilty of cultivation, use and trafficking in cannabis. The amount of cannabis involved was [number] kilograms of dried cannabis. He was convicted and placed on a Community Corrections Order for 12 months.
The applicant told the Tribunal that prior to being arrested and charged by police on 13 June 2018 he was using cannabis on a daily basis and considered himself be to a ‘heavy user’ of cannabis. He said that since being charged by police he had ceased using cannabis and had approached a local community health centre for drug treatment. He participated in an assessment with a drug and alcohol counsellor and had attended one counselling session before his visa was cancelled and he was placed in detention. He said that he intended to participate in further drug counselling sessions when released from detention and was committed to complying with all of the conditions of his Community Corrections Order. He was also prepared to report to the Department if required by the Tribunal. The applicant’s future plans include obtaining employment and resuming care of his children.
On 11 July 2018 the applicant’s Bridging visa was cancelled and he was placed in immigration detention. This has caused him and his partner distress and hardship as he has been separated from his wife and young children and his wife has been forced to care for their children on her own.
The Tribunal notes that the applicant is not subject to any intervention order and has no pending criminal charges. There is no evidence before the Tribunal to refute his claim that he has complied to the extent possible (given his detention) with the conditions of his Community Corrections Order. Given his detention, he has also been substance free since being in detention. The applicant told the Tribunal that he intends to continue with his drug counselling upon his release from detention. Likewise, he intends to comply with the conditions of his Community Corrections Order, which includes reporting conditions, counselling, drug testing and 200 hours of unpaid community work. However, the Tribunal notes that apart from his recent compliance with bail conditions, his history of compliance with visa and bail conditions over the seven years he has been in Australia has been poor.
Evidence of [Ms A]
[Ms A] met the applicant at the home of a friend in 2015. The applicant didn’t initially say anything to her about his immigration status but after a month or two together he told her that he was studying. She subsequently discovered that this was not true and that he had already ceased his studies when he met her.
[Ms A] said that initially she didn’t think much about the applicant’s visa and thought he was in Australia on a permanent basis. After approximately eight months together the applicant explained his position more fully to her and told her that he held a Bridging visa.
Throughout their relationship the applicant has not had any employment. [Ms A] said that the despite looking for all types of jobs, the applicant had been unable to secure employment. This evidence was different from the account given by the applicant in his oral evidence to the Tribunal.
The couple moved to [Town 1] approximately two years ago because [Ms A] wanted to raise their children in the country.
[Ms A] acknowledged that there had been one incident of family violence between the couple. This occurred in 2016 when she and the applicant argued. He threw a telephone at her, which although it hit her in the chest, did not cause any bruising. She confirmed that she attended court on one occasion with the applicant, after he was charged with assault. She told the police prosecutor that she had reconciled with the applicant and wanted the charge withdrawn.
[Ms A] told the Tribunal that prior to being charged by police with offences in June 2018, the applicant was using cannabis on a daily basis. Towards the end the applicant was trying to quit by cutting down on the amount he used. He had tried to quit before being charged by police. [Ms A] said she and the applicant fought constantly about his cannabis use as [Ms A] was worried that he would be deported if caught by police and they risked losing the care of their children. [Ms A] said that she was upset at herself for not doing more to stop the applicant using cannabis.
[Ms A] explained that it was difficult for her to care for the children without the applicant’s assistance. She only has a learner’s permit and cannot drive her car without another driver present in the car. This makes shopping and attending medical appointments difficult. [Ms A] said that as her mother lives in [City 1], she can only provide limited support to her and she has no other family or friends to assist her with the care of the children. She misses the applicant and their children are also distressed at the absence of their father at home.
Evidence of [Ms B]
[Ms B] is the mother of [Ms A], the applicant’s wife. She lives in [City 1]. [Ms B] told the Tribunal that she was not aware of the details of the applicant’s immigration status. Prior to his detention she thought the applicant had a temporary visa and the reason for him not working was that he wasn’t granted a work permit. [Ms B] acknowledged one incident of family violence between the applicant and her daughter which she described as not physical but verbal. She said that although she telephoned the police on that occasion it was because she didn’t know the applicant very well at that stage. She has since changed her opinion about the applicant because she has seen his love for her daughter.
[Ms B] told the Tribunal that prior to his being charged by police with offences in June 2018, she was aware that the applicant was using drugs. She said that when he came to her house, she asked him to go outside when he was using drugs because she didn’t want drugs in her home.
[Ms B] further told the Tribunal that it was very difficult for her to help her daughter since she lived in [City 1] and the trip to [Town 1] took two hours. She said that she was worried about her daughter’s emotional and physical health in being required to care for the couple’s children without the assistance of the applicant. As a consequence she spoke to her daughter daily to offer support and advice.
Submissions
The submissions by the applicant’s representative may be summarised as follows:
·The applicant’s recent positive engagement with the Department should be given more weight than his previous period of unlawfulness.
·The applicant has been proactive with respect to his rehabilitation, has been drug free since being detained and has reported by telephone to the Office of Corrections since being detained.
·The applicant had previously attempted to find work but could not find suitable employment.
·If a Bridging visa is granted, the applicant intends to care for his family and find employment.
·The applicant’s continued detention was causing hardship to his family, particularly as his partner was forced to care for the children without assistance.
The applicant’s representative further submitted that it was not the role of the Tribunal to review the Court’s findings and sentence in relation to the applicant’s recent criminal charges. The Tribunal accepts that the applicant pleaded to and was found guilty of possession, cultivation and trafficking of a substantial amount of cannabis, which is an illicit substance. The applicant’s representative submitted that the non-custodial sentence imposed on the applicant reflected an offence at the lower end of the sentencing scale and the charge was based solely on the quantity of cannabis involved and not on a proven intent to traffic. She further submitted that these were relevant factors for the Tribunal to take into consideration in making its decision.
The Tribunal accepts that the imposition of a non-custodial sentence is likely to reflect the applicant’s plea of guilty, his prior history of offending, and his personal circumstances in addition to the nature of the offences and their degree of seriousness. However, trafficking in an illicit substance such as cannabis is a serious offence and the amount [involved] is a considerable amount. The fact that conviction was based on a ‘deemed’ trafficable amount does not alter either the applicant’s plea or the Magistrate’s conviction for that offence. The Tribunal also takes into consideration the fact that the applicant was assessed as suitable for the imposition of a Community Corrections Order.
The Tribunal accepts that the applicant’s detention has caused his partner distress and a measure of hardship. The applicant’s representative submitted that the definition of hardship in the Act and Regulations is not limited to one of a financial nature. The Tribunal accepts that the hardship caused by the applicant’s continued detention is not limited to financial privation and that it has been difficult for [Ms A] to care for the couple’s children without the support and assistance of the applicant.
Is the applicant eligible to be granted a Bridging E visa?
At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.
In this case, the applicant is seeking to meet cl.050.212(3). The applicant does not claim to meet any of the other alternative criteria in cl.050.212. For the reasons below, the applicant meets cl.050.212.
Substantive visa application
Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.
‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.
The Tribunal is satisfied that the applicant made an application for a Subclass 820 Partner visa on 20 July 2018. Accordingly, the applicant meets cl.050.212(3).
Whether the applicant continues to satisfy the time of application criteria - cl.050.221
An applicant for a Bridging E visa must, at the time of application, satisfy cl.050.211 and cl.050.212. The Tribunal has already stated it is satisfied that the applicant satisfies the requirements of cl.050.212.
The Tribunal is also satisfied that the applicant satisfies the requirements of cl.050.211 because at the time of application, the applicant:
·Was an unlawful non-citizen as required by cl.050.211(1)(a); and
·Was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17) as required by cl.050.211(2).
Clause 050.221 requires that an applicant for a Bridging E visa must continue to satisfy the criteria set out in cl.050.211 and cl.050.212 at the time of the Tribunal’s decision.
The Tribunal is satisfied that the applicant continues to satisfy the requirements of both clauses at the time of this decision as the applicant remains an unlawful non-citizen who is detained by the Department, he is not an eligible non-citizen in the relevant sense and his application for a substantive visa able to be granted in Australia, in this case a Partner visa, remains on foot.
The issue in this case therefore is will the applicant comply with any conditions that would be imposed on any bridging visa that may be granted to him.
Clause 050.221 requires the applicant to continue to satisfy the requirements of cl.050.211 and 050.212 at the time of decision. The Tribunal finds that at the time of decision, the applicant continues to satisfy cl.050.211 and 050.212 and therefore meets cl.050.221.
Whether the applicant will abide by conditions - cl.050.223
Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject. The Tribunal considers that conditions 8101, 8401 and 8506 are relevant to the applicant.
When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].
The Tribunal has considered the applicant’s past immigration history, including the 12 ½ months in which he was an unlawful non-citizen and his failure to advise the Department of the cessation of his studies and his contact details. As noted above, the Tribunal does find the applicant’s explanations for his failure to inform the Department that he had ceased studying and changes in his contact details as credible or convincing. Nor does it accept his explanation for being an unlawful non-citizen for over 12 months as credible. The Tribunal considers that the applicant’s behaviour in this regard was both deliberate and wilful and the breaches of the immigration laws were significant. The Tribunal accepts that the applicant approached the Department regarding his immigration status in 2016 but notes that this was done many months after his Student visa was cancelled.
The Tribunal does not accept that the applicant was unaware of the court hearing date of [date] December 2017. The Tribunal finds that the applicant deliberately and wilfully ignored both the hearing date and his bail obligations in respect of the assault charge. The Tribunal acknowledges that after being charged with further offences on 13 June 2018, the applicant complied with his bail conditions for approximately 2 months, before being placed in immigration detention. It also accepts that whilst in detention the applicant has kept in contact with his Corrections officer but notes that his compliance with the Community Corrections Order in the community is untested given he has been in detention.
The Tribunal has further considered the applicant’s recent criminal offending, including the serious offence of trafficking in cannabis.
The Tribunal acknowledges that the applicant has participated in a drug assessment and one counselling session but notes that he is yet to become well engaged in the counselling process. He has not used drugs whilst in detention but has a substantial history of cannabis use before being detained.
The Tribunal also accepts that the effect of detention on the applicant’s family is likely to provide some incentive to him to comply with conditions. However, the Tribunal has balanced this against the applicant’s offending behaviour and his heavy use of cannabis since the birth of his children and whilst they have been in his care.
Condition 8101 – Must not engage in work in Australia
Although the applicant has not worked since his arrival in Australia, he told the Tribunal that he now wished to obtain employment, to support his family. Given the applicant’s poor compliance history, the Tribunal is not satisfied that he would abide by this condition.
Condition 8401 – to report (a) at a time; and (b) at a place specified by the Minister for the purpose & Condition 8506 – to notify immigration at least 2 working days in advance of any change in the holder’s address
Given his poor compliance history, the Tribunal is not satisfied that the applicant would comply with these conditions.
Provision of security
The applicant’s representative submitted that as the applicant is in receipt of community benefits and his family are in receipt of government benefits, he is not in a financial position to provide a security if required. The Tribunal accepts this submission and finds that the applicant is not in a position to provide a security if required. However, the Tribunal is not satisfied in any event that the provision of security would secure the applicant’s compliance with conditions.
On balance the evidence before the Tribunal regarding the applicant’s history of poor compliance with visa and bail conditions outweighs the very recent indicators of more positive engagement by the applicant with the Office of Corrections and counselling services. The Tribunal is not satisfied that the applicant’s actions whilst in detention are necessarily indicative of his future conduct, given his actions whilst in the community. Accordingly, the Tribunal is not satisfied that if granted a visa and released from immigration detention, the applicant would comply with conditions 8101, 8401, or 8406.
On the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.
The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Amanda Mendes Da Costa
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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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Natural Justice
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