2008556 (Refugee)
[2024] AATA 3661
•30 May 2024
2008556 (Refugee) [2024] AATA 3661 (30 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2008556
COUNTRY OF REFERENCE: Fiji
MEMBER:Jessica Edis
DATE:30 May 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 30 May 2024 at 3:25pm
CATCHWORDS
REFUGEE – protection visa – Fiji – no ‘refugee nexus’ – complementary protection – ‘cruel treatment’ – police brutality – wrongful suspect in a criminal investigation – past harm and fear – prospect of future harm – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2Any 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 dependant.
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 Home Affairs on 6 May 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are Fijian citizens who applied for the visa as a family unit on 12 September 2019.
The primary applicant is a [age]-year-old well-educated [Occupation 1], who is a mother and wife. The dependent applicants are her husband and three sons.
The primary applicant last arrived in Australia [in] August 2019 and claimed that she feared returning to Fiji because of a risk of physical harm at the hands of the police. She travelled to Australia with her sons; her husband was already visiting in Australia at the time.
The delegate refused to grant the visas on the basis that the applicants failed to meet the prescribed criteria. The applicants sought review of that decision and applied to this Tribunal on 21 May 2020.
The applicants were invited to attend a hearing scheduled before me on 15 May 2024.
The hearing was conducted in the English language. There were no communication issues. The applicants were self-represented.
The primary applicant gave evidence in support of her case. The dependent applicants declined the opportunity to do so.
The primary applicant presented to me as an honest and intelligent woman who had genuine reasons for applying for the visa. However, for the reasons that follow, I am not satisfied that the applicants meet the criteria for protection, and I affirm the decision under view.
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). A full extract of the provisions is attached to this decision.
The applicants must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, they must be a person in respect of whom Australia has protection obligations either:
·under the ‘refugee’ criterion; or
·on other ‘complementary protection’ grounds;
or be a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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) of the Act.
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: s 5J(1)(a); and
·there is a real chance they would be persecuted for one or more of those reasons: s 5J(1)(b); and
·the real chance of persecution relates to all areas of the relevant country: s 5J(1)(c).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), then the reason(s) must be the essential and significant reason(s) for the persecution: s 5J(4)(a).[1] Further, the persecution must involve:
·serious harm to the person: s 5J(4)(b); and
·systematic and discriminatory conduct: s 5J(4)(c).[2]
[1] That is: race, religion, nationality, membership of a particular social group, or political opinion.
[2] Additional requirements relating to a ‘well-founded fear of persecution’ and the 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.
Complementary protection criterion
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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).[3]
[3] The definition of ‘significant harm’ under s 36(2A) is exhaustive, per s 5(1) of the Act.
Pursuant to s 36(2A), a person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.[4]
[4] ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.
Pursuant to s 36(2B), there is taken not to be a real risk that an applicant will suffer significant harm in a country if:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; or
·the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or
·the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
Mandatory considerations
Section 499 of the Act empowers the Minister to give directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Relevantly, Ministerial Direction No.84 (MD 84), made under s 499 of the Act, concerns the consideration of protection visa applications.
In accordance with MD 84, I am required to take account of the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’, prepared by the Department. I am also required to consider country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes.
BACKGROUND
The applicants travelled to Australia on visitor visas. They have several family members who are Australian citizens or permanent residents, including the primary applicant’s mother and brothers, who they had visited on multiple occasions.
The application for a protection visa was lodged electronically, via the ImmiAccount system, on 12 September 2019. The primary applicant provided the following documents in support:
·a detailed personal statement signed by her and dated 6 September 2019;
·medical reports (including an X-ray) for her and one of her sons dated 16 July 2019; and
·Fijian passports for her and the other applicants.
The primary applicant claimed that she and her [age]-year-old son had a run-in with 2 police officers [in] July 2019. They were shouted at, shoved around, forcibly grabbed, and ultimately injured by the police. During the incident, the officers gave the impression to the primary applicant that she was a suspect in relation to a fraudulent scheme involving a superannuation fund. But she knew nothing whatsoever about the allegations.
These events occurred on a public street when the primary applicant was collecting her son from school. The police left the scene after their interaction caught the attention and interest of nearby school parents, when the primary applicant’s son was on the ground screaming and crying. The primary applicant and her son immediately sought medical treatment. The primary applicant suffered from bruising and pain on her right arm, elbow, and hand. Her son suffered from a fractured shoulder.
The primary applicant was too scared to lodge a complaint with the police, about the police themselves. In the ensuing days, a neighbour recounted to her that the police had visited her house and asked the neighbour as to her whereabouts. This caused her to become fearful of returning home. Her older sons were away at boarding school, and her husband was visiting family in Australia. So, she and her son temporarily moved to her in-laws’ house.
On 6 August 2019 the primary applicant learned via a news article that there was an ongoing investigation into the fraud matters which the police sought to question her about [in] July. Multiple individuals had been charged and other suspects were being pursued by police. She panicked, now thinking the police wanted to connect her with that offending. She did not feel safe. She decided she and her sons needed to leave Fiji as soon as possible and made immediate arrangements. They departed on a flight for Sydney the next day. The primary applicant left behind her job as a [Occupation 1] at a [workplace]. The family left behind all their belongings and their home in the town of [Town 1].
The applicants were not invited to attend an interview with a Departmental officer about the protection visa application. On 6 May 2020 the delegate refused the application based on the material before the Department.
The delegate accepted the police incident took place as described by the primary applicant in her statement but rejected the claim for protection under the refugee criterion on the grounds that there was no ‘refugee nexus’.[5] The delegate considered whether Australia’s obligations were engaged under the complementary protection criterion but rejected the claim because he was not satisfied there was a real risk of the applicants suffering significant harm. The delegate found that even if the primary applicant was investigated and questioned by the police on her return to Fiji, there are measures that she could take to protect herself from rough treatment by the police (including hiring a lawyer in Fiji).
[5] That is, the primary applicant did not fear persecution for one of the s 5J(1)(a) reasons.
OUTLINE OF EVIDENCE
Prior to the scheduled hearing, the applicants were requested to submit any further evidence or information in support of their application. The only documents provided to the Tribunal were the applicants’ qualifications, employment contracts, and resumés. I have reviewed these materials and find that they are not relevant to the protection claims.
The primary applicant gave forthright and candid evidence at the hearing. She recounted to me what happened to her and her son [in] July 2019, and during the ensuing 3 weeks, before they travelled to Australia [in] August 2019. Her oral testimony was consistent with the statement that had accompanied the visa application.
I accept the primary applicant left Fiji because she and her son had been assaulted by the police, and she was genuinely fearful that she was the subject of a criminal investigation, and there was a risk that she would be subjected to further police harassment at that time.
The primary applicant told me that she did not trust the Fijian police, and they were renowned for their brutality and for not treating suspects fairly. The fact that the officers had been so brazen [in] July 2019 by confronting her and her son on a public street outside of a school, and later visited her house and asked her neighbour where she was, caused her to feel especially scared and vulnerable. She believed her life was in danger.
The primary applicant’s fears about potential police misconduct in Fiji accords with the information recorded in the DFAT Country Information Reports dated 27 September 2017[6] and 20 May 2022.[7] Police violence is often reported in the media in Fiji, and DFAT is told that assaults in custody occur, and monitoring and accountability systems to prevent such conduct are either not implemented or not implemented effectively.
[6] See paragraphs 4.12 and 5.9.
[7] See paragraphs 5.11 to 5.16 under the heading “Police violence”.
However, the primary applicant also told me that the superannuation fraud case has since ‘ended’ (because the offenders were all caught) and she is not the subject of an ongoing police investigation. When I asked if she thought the police would be interested in her in any way if she returned to Fiji now or in future, she replied: ‘I doubt it’. She said she has not made any enquiries or received any current information about whether the authorities are looking for her or she might otherwise be a target of police attention in Fiji.
At the conclusion of the hearing, I gave the applicants the opportunity to provide any additional information that they wished to be considered by me in determining their case within the next 14 days. No further documents were supplied.
CONSIDERATION
The applicants’ case relies entirely on the primary applicant’s protection claims which are based on the incidents that took place in July and early August 2019, and her associated fears about being the victim of police brutality again, as outlined above. The dependent applicants have not made any separate claims of their own.
Accordingly, I will assess the primary applicant’s claims against each of ss 36(2)(a) and (aa). If she meets either one of those criteria, then she is entitled to the visa – and, in turn, the dependent applicants’ eligibility will be met as members of the same family unit. But if she does not meet either of the criteria, then none of the applicants can be granted the visa.
For the avoidance of doubt, it is not in dispute that the applicants are Fijian citizens. They are to be assessed against Fiji as the country of ‘nationality’ and the ‘receiving country’.[8]
[8] Noting these terms are used within the visa criteria within ss 36(2)(a) and (aa), respectively.
Section 36(2)(a): Refugee criterion
The primary applicant has never asserted, and there is no evidence to suggest, that her claims are linked to her race, religion, nationality, membership of a social group, or political opinion.[9] She was not targeted by the police for any other reason than she was a (wrongful) suspect in a criminal investigation.
[9] These being the grounds prescribed by s 5J(1)(a) of the Act, as part of the “meaning of refugee” per s 5H of the Act.
On this basis, I find the primary applicant is not a ‘refugee’ as defined by s 5H(1)(a) of the Act. Accordingly, she cannot satisfy s 36(2)(a) of the Act.
Section 36(2)(aa): Complementary protection
In order to be entitled to complementary protection, there has to be substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.[10]
[10] See above and attached for the exhaustive definition of “significant harm”.
As stated in the Complementary Protection Guidelines:
·One of the key elements in identifying whether an applicant warrants Australia’s complementary protection is that the applicant will be personally at risk of one of the forms of significant harm outlined in s36(2A).
·A decision maker should consider whether there is evidence showing the risk to be reasonably foreseeable in the personal circumstances of the individual, and that the level of danger is personal and present for the non-citizen, such that there is a real risk of significant harm on their return to the receiving country.
·As with s36(2)(a) assessments, complementary protection assessments may be based on past events, but are forward-looking. The issue to be determined is whether events related by the applicant, together with all the other evidence (including country conditions at the time of the decision), show that the applicant would be subjected to significant harm as a result of being returned to the receiving country.[11]
[11] See section 3.5.2 under the heading ‘Real risk – Personal risk’ and section 3.5.4 under the heading ‘Real risk – Forward looking test’.
In this case, I have accepted the primary applicant and her son suffered physical harm at the hands of the Fijian police [in] July 2019. That harm arguably amounts to ‘cruel treatment’.
I also accept the police visited the primary applicant’s house and spoke to her neighbour, in the days that followed the incident, and the primary applicant was thereafter genuinely fearful and mistrusting of the police, to the extent that she fled to Australia.
However, the past harm and fear that the primary applicant has experienced does not give rise to a presumption of future harm. I must consider if the prospect of it reoccurring is realistic. The primary applicant’s own evidence in that regard is that the specific criminal matters the police confronted her about in July 2019 have ended and she doubts the police would still be interested in her if she were to return to Fiji. Furthermore, she could not provide me with current information about her personal risk situation insofar as the Fijian police are concerned. Rather, she expressed a persistent generalised fear of the police based on the trauma associated with the July 2019 incident.
The reality is that almost 5 years have passed since the events which formed the basis of the primary applicant’s claims took place. What is more, the reason why she was the target of police attention in the first place no longer exists. And there is no evidence to suggest that the police remain interested in the primary applicant for any other reason, or at all. In these circumstances, whereas I accept the country information to the effect that police violence does indeed still occur in Fiji, I cannot be satisfied that the risk faced by the primary applicant is a personal risk as opposed to one faced by the population of the country generally – such that I cannot be satisfied that it is a risk of harm which is a necessary and foreseeable consequence of being removed from Australia to Fiji.
In summary, what happened to the primary applicant and her youngest son in 2019 was dreadful and frightening. I can well understand her decision to travel to Australia with her sons in the circumstances that she did and apply for a protection visa. But I must make my decision about the primary applicant’s eligibility for the visa as at today’s date. Having regard to the material presently before me, I determine there is no real risk the primary applicant will face significant harm if she returns to Fiji.
On this basis, I find the primary applicant is not owed complementary protection under s 36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, I conclude that none of the applicants are persons in respect of whom Australia has protection obligations under s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Jessica Edis
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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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Natural Justice
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