2302210 (Refugee)
[2024] AATA 1241
•5 April 2024
2302210 (Refugee) [2024] AATA 1241 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2302210
COUNTRY OF REFERENCE: China
MEMBER:Frank Russo
DATE:5 April 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 5 April 2024 at 10:57am
CATCHWORDS
REFUGEE – protection visa – China – homosexual male – difficult life but no harm or fear of harm – delay in applying for protection – undetailed claims and no supporting evidence – no further information provided and consent to decision without hearing – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any 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 Home Affairs on 17 February 2023 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 China, applied for the visa on 10 October 2021. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
On 13 February 2024, the Tribunal sent the applicant correspondence requesting that he complete a pre-hearing information form and return it to the Tribunal within seven days. The Tribunal received no response to this request.
On 12 March 2024, the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at an in-person hearing at 2:00pm on 4 April 2024. The applicant was advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice.
On 27 March 2024 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The applicant did so by providing a completed response to the hearing invitation, as well as a copy of the biodata page of the applicant’s Chinese passport. This matter has therefore been determined on the evidence available to the Tribunal.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
As noted above, the issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
In support of his application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record and notice of the decision from the Department. He did not provide the Tribunal with any further evidence in support of his application. On 27 March 2024, the applicant provided a response to the hearing invitation.
The Tribunal also has a copy of the Department file, which includes a system generated copy of the applicant’s Protection visa application and passport. The Tribunal has had regard to the documents on that file. The file also contains a copy of an application for a Bridging visa C, together with copies of a bank statement, electricity bill, telephone bill, lease agreement and statutory declaration from the applicant in support of the application for the Bridging visa. The Tribunal does not find these documents to be relevant to the issues before it. The Tribunal, in reaching its decision, has taken into account all of the relevant evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims made in Protection visa application
In his Protection visa application, the applicant declares that he last arrived in Australia [in] June 2009, and he has been living at an address in Sydney since then. The applicant makes the following claims:
a.He is a gay person;
b.Homosexuals are not accepted by the Chinese public; and
c.He had a very difficult life in his home country.
In response to the question, ‘Did this applicant experience harm in that country or those countries?’ the applicant responded ‘No’. In response to the question, ‘Does this applicant think they will be harmed or mistreated if they return to that country or countries?’ the applicant responded ‘No’.
The applicant claims that he did not try to move to another part of China because homosexual behaviour is not accepted in China. The applicant gave the same reason for why he claims the authorities could not, or would not, protect him. He claims there is nowhere he can relocate to in China because Chinese laws do not accept gay behaviour.
Departmental request for information and delegate’s decision
The delegate’s decision, a copy of which the applicant provided with his application for review, indicates that on 21 November 2022 the Department sent the applicant correspondence inviting him under s.56 of the Act to provide additional information to substantiate his claims. The s.56 invitation advised the applicant that his statement of claims lacked key details about his sexuality, the harm he claimed to have suffered, including details of experiences, dates and locations, and that he had not provided any evidence in support of his claims. The applicant was also invited to provide further information about documentary evidence in support of his claims and the letter set out a number of matters.
Relevantly, the applicant was asked to describe his experience of being gay in China and how he felt about being gay in China, including details of any relationships he has had in both China and Australia, whether he had told family and friends in China about his sexuality, and to describe their responses and the extent of his involvement and interactions with the LGBTI community in both China and Australia. The applicant was also asked to provide details of any discrimination or harm he faced in China because of his sexuality, including any negative interactions with the authorities, whether he attempted to hide his sexuality in China, what persons or organisations he fears from if he returns to China and the details of the harm he fears he will suffer if he returns to China. The applicant was also asked to provide reasons why he delayed lodging his Protection visa application for almost 12 years after his arrival in Australia. The applicant did not respond to the invitation to provide further information.
There is nothing on the Department file to indicate that the applicant was invited to attend a Protection visa interview.
The delegate made a decision based on the applicant’s written claims in his visa application. The delegate refused the Protection visa application on 17 February 2023. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Act.
Analysis, findings and reasons
The Tribunal is satisfied on the basis of the copy of the applicant’s passport attached to his visa application, and in the absence of information to the contrary, that he is a citizen of China. It has assessed him against that country for determining both whether he has a well-founded fear of persecution for the purposes of s.36(2)(a) of the Act and the purposes of determining his “receiving country” for the purposes of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The applicant claims in his Protection visa application that he fears harm in China because of his sexual orientation as a gay person. He claims that homosexuals are not accepted by the Chinese public and that he had a very difficult life in China. These written claims lack detail and no supporting evidence has been provided. The applicant has provided no information about his life as a gay man in China, other than making the very vague and general statement that he had a very difficult life in China. He has also provided no information about his life as a gay man in Australia. The applicant did not respond to the Department’s invitation to provide specific details and information as well as evidence to substantiate his claims for protection. He has also not provided further information or evidence to the Tribunal in support of his claims and has not availed himself of the opportunity to appear before the Tribunal to provide more detailed oral evidence about his claims for protection. Had he attended the hearing, it would have been possible for the Tribunal to explore these issues with him. However, he failed to do so, and on the very limited information currently before me I am not satisfied that he is a gay man and therefore I am not satisfied that there is a real chance that he would face serious or significant harm on return to China because of his sexual orientation.
I am therefore not satisfied that he had a very difficult life in China because homosexuality is not accepted by the Chinese public or that he left China for this reason. In his visa application, the applicant declared that he did not experience harm in China and there is no convincing evidence to indicate that the applicant experienced any harm in China, whether from the public or the authorities, because of his claimed homosexuality.
With regard to future harm the applicant might suffer if he returns to China now or in the reasonably foreseeable future, the applicant provided no evidence as to what he fears might happen to him, other than restating that China does not accept homosexual behaviour. The applicant declared that he does not think he will be harmed or mistreated if he returns to China, other than stating ‘China no accept homosexual behaviour.’ The applicant has also provided no evidence of his experiences since arriving in Australia over 14 years ago, nor how this might result in any harm upon return to China.
Furthermore, the Tribunal is concerned that the applicant first travelled to Australia [in] June 2009, and did not claim protection until 10 October 2021, over 12 years later. The applicant has provided insufficient information as to when he first identified as homosexual, other than stating that he had a very difficult life in China. Without the benefit of hearing oral evidence from the applicant, and in the absence of additional information being provided to the Department or Tribunal, there is insufficient explanation for such a lengthy delay, which raises further concerns about the applicant’s claims.
In view of the lack of any compelling or convincing evidence, and also in light of the Tribunal’s finding that it does not accept the applicant’s claim that he is homosexual, the Tribunal is not satisfied that the applicant suffered persecution in China, nor that he left China because he is homosexual. The Tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group if he returns to China in the foreseeable future. The Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to China as a homosexual, or for any other reason in s5J(1)(a) of the Act, now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied that the applicant a well-founded fear of persecution in China.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). As noted above, the applicant has provided no detail or supporting evidence regarding his claims to be a gay person, nor any evidence of past harm experienced in China or harm that he fears on the basis of his sexual orientation. He has also provided no evidence regarding his experiences in Australia. Given the findings made 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 China, there is a real risk that he will suffer significant harm as a homosexual or for any other reason. On the evidence before it, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future on the basis of his claims to be homosexual or for any other reason.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion 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).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion 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.
Frank Russo
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.
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Standing
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