Aen16 v Minister for Immigration
[2016] FCCA 2039
•23 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEN16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2039 |
| Catchwords: MIGRATION – Protection visa – “Information” for the purpose of ss.424AA and 424A of the Migration Act 1958 (Cth) – whether information put on social media can constitute “information” – breach of s.424A because no particulars given – invalidity of Tribunal decision. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 424A, 425 |
| Cases cited: Minister for Immigration v SZLFX (2009) 238 CLR 507 Minister for Immigration v You [2008] FCA 241 SAAP v Minister for Immigration (2005) 228 CLR 294 SZBYR v Minister for Immigration (2007) 235 ALR 609 |
| Applicant: | AEN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 170 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 27 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco of Counsel. |
| Solicitors for the Applicant: | Australian Business Underwriter. |
| Counsel for the Respondents: | Ms C Hillary. |
| Solicitors for the Respondents: | DLA Piper. |
ORDERS OF THE COURT
Order that a writ of certiorari issue quashing the decision of the Second Respondent made on 24 December 2015.
Order that a writ of mandamus issue ordering that the Second Respondent consider and determine according to law the Applicant’s application for review dated 5 August 2014 of the decision of the Delegate of the First Respondent made on 22 July 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 170 of 2016
| AEN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Bangladesh aged 36 years, having been born on 14 July 1980.
By Amended Application filed in this Court on 20 July 2016 he seeks to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 24 December 2015 affirming a decision of a Delegate (the Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 22 July 2014 refusing to grant him a Protection (Class XA) visa (Protection visa). The Applicant also seeks a writ of mandamus directed to the Tribunal requiring it to determine the Applicant’s application for review according to law.
Mr P Bodisco of Counsel appeared on behalf of the Applicant and Ms C Hillary appeared for the Minister.
General background
The Applicant arrived in Australia on 12 October 2013 as the holder of a Subclass FA-600 Visitor (Tourist) visa. On 8 November 2013 he applied for a Protection visa. In his Protection visa application the Applicant claimed to have an ongoing fear for his life in Bangladesh because, before he left Bangladesh to come to Australia, he had converted from Islam to Christianity. He said that he had been baptised on 17 September 2013 in Dhaka Baptist Church and baptised again on Sunday, 20 October 2013 after arriving in Australia. He provided a certificate of baptism to that effect from the Hillsong Church at Baulkham Hills, Sydney.
Decision of Delegate
The Delegate in his decision of 22 July 2014 recorded that the Applicant asserted that he feared he would be harmed should he return to Bangladesh because he had converted to Christianity. In the result the Delegate found that the Applicant had not substantiated his claimed conversion to Christianity in Bangladesh and that this claim was not credible. The Delegate found that the Applicant had fabricated this claim in order to provide a basis for his Protection visa application but did accept that he had been baptised at the Hillsong Church on 20 October 2013. Otherwise the Delegate was not satisfied that there was either a real chance of the Applicant being persecuted for a Refugees Convention reason in Bangladesh or that he would face a real risk of significant harm if he returned to Bangladesh and the Delegate refused to grant the Applicant a Protection visa.
I record at this point that it appears from the Decision Record of the Tribunal referred to below that in the interview which the Applicant attended with the Delegate on 17 March 2014, the Delegate raised with the Applicant the fact that the Applicant had a Facebook page which said on it that he was a Muslim, and the Delegate wondered why on the Facebook page the Applicant would say that he was a Muslim and not a Christian. I note that it was common ground that the Delegate made no reference in his decision of 22 July 2014 to the Facebook page. The Facebook page and its contents (the Facebook page) and its significance to this case will be more fully referred to below.
Decision of Tribunal
The Applicant applied to the Tribunal (Refugee Review Tribunal as it was then called) for review of the Delegate’s decision on 5 August 2014 and attended a hearing before the Tribunal on 23 December 2015 together with his migration agent and a Bengali interpreter. The Tribunal by its Decision Record of 24 December 2015 affirmed the Delegate’s decision not to grant the applicant a Protection visa.
The Applicant tendered as evidence in this Court a transcript of the hearing in the Tribunal on 23 December 2015 during which the following exchange took place concerning the Facebook page:-
Q. You were interviewed by a delegate of the Immigration Department. This was back in March last year, and the delegate said that you had a Facebook page and it said on your Facebook page that you are a Muslim, and the delegate was wondering why, on your Facebook page, you would say that you're a Muslim and not a Christian.
A. INTERPRETER: That Facebook was - page was very old, and at that time I was Muslim.
Q. Sorry. That Facebook page was very?
A. INTERPRETER: Very old.
Q. Very old.
A. INTERPRETER: And at that time I was a Muslim.
Q. "I was a Muslim". Right, yes.
A. INTERPRETER: And when I got into trouble, so it didn't stuck in my mind that I have to change the status.
Q. But your interview with the delegate was in March 2014. Why would your Facebook page at that stage still say that you're a Muslim?
A. INTERPRETER: All right. I have told you before, I didn't saw it, what is written on the Facebook and I have pretended. And I didn't understand that I had to change it and it was that important.
Q. Well, do you still have the Facebook page?
A. INTERPRETER: Yes.
Q. And does it say you're a Muslim or a Christian?
A. INTERPRETER: There is no mention of religion there. It was there before, but I have cancelled it afterwards.
Q. So did you ever say on your Facebook page that you are a Christian?
A. WITNESS: No.
A. INTERPRETER: No. Maybe some time ago I have posted a picture, I am in a church.
Q. You're not sure?
A. INTERPRETER: Yes, I'm sure. Yes, I have posted a picture of me in the church.
Q. Why did you do that?
A. INTERPRETER: Without any reason, I just took the picture. I just put it on the Facebook.
Q. When did you change your Facebook page to say - when did you delete the reference to being a Muslim?
A. INTERPRETER: The Facebook status that I am a Muslim, I didn't bother about it, but some time ago I saw it and I just deleted it.
Q. When was that?
A. INTERPRETER: I don't remember.
Q. Was it just last week?
A. WITNESS: No.
A. INTERPRETER: No.
Q. Well, when was it?
A. INTERPRETER: It didn't happen - not long ago, but I don't remember the exact date.
Q. Because when you were interviewed by Immigration in March last year, it seems that you had not fixed it at that time. It still said you're a Muslim.
A. INTERPRETER: Yes, still it was in the Facebook. I didn't recall like that, that it is there, and I didn't ever think about it, that I had to change it.
Q. I'm surprised, though, that you would say you never thought about it and it didn't really matter to you, because you took such huge risks in your life in Bangladesh to become a Christian. It just seems inconsistent with that, that your Facebook page, after you get here, says you're a Muslim and you said, "I'm not really worried about it".
A. INTERPRETER: All right. I put the status in the Facebook when I was Muslim, so after what's - what happened, whatever happened to me, and for this reason, I have to change this or I have to remember this, and I didn't understand that I have to change it.
Q. Well, you don't have to. You don't have to change it. That's not the point. The point is that surely, as someone who took such huge risks to be a Christian, you would actually want your Facebook page, which is all about you, to actually say you're a Christian, not a Muslim.
A. INTERPRETER: All right. I don't use the Facebook in that way, that much.
Q. Why do you have a Facebook? Why did you have a Facebook page?
A. INTERPRETER: All right. Yeah. Everyone opens a Facebook. When I open the - the Facebook, I use it afterwards.
Q. Why?
A. INTERPRETER: I didn't think about that in that way, but I have to change that in the Facebook, and I didn't even notice what is there, written there.
Q. Did you tell the delegate at your interview with Immigration that you put up some photographs of yourself in Sydney? You put that onto your Facebook page?
A. INTERPRETER: Yes. I have told you before that I - yes, I have put some pictures on Facebook page, but what is written on the Facebook page, I didn't notice. And I have to change that thing, I didn't think in - in that way.
In its Decision Record the Tribunal summarised its reasons for affirming the Delegate’s decision under review, saying in paragraph [7] as follows:-
[7]According to his evidence to the department and the Tribunal, the applicant claimed protection on the ground that he converted from Islam to Christianity when he lived in Bangladesh and, for doing so, various people there wish to harm him. At the Tribunal hearing, the applicant displayed an insincere and artificial demeanour as a witness. His evidence was often oblique and confused requiring the Tribunal to have to frequently clarify what his evidence actually was. He did not convey the impression of a person who had truly undergone a significant event in his life, namely, conversion to another religion, and who, as a result, suffered having to abandon his business, the loss of his marriage, rejection from family and society and threats to his life. Apart from his unimpressive demeanour, the Tribunal holds the following concerns about the applicant’s credibility.
The Tribunal then recorded in paragraphs [8] to [34] of the Decision Record various matters which it had put to the Applicant and which caused it concern about the Applicant’s credibility.
Then in paragraphs [43] to [45] it dealt with the Facebook page under the heading of Concerns about the applicant’s willingness to become a Christian.
Paragraphs [43] to [45] were as follows:-
[43]Again, this overall impression of untruthfulness on the applicant’s part with respect to his claims to be a committed Christian was enhanced by evidence he gave at his interview with the delegate held in March 2014 that he had a Facebook page on which he declared that he was a Moslem (referred to in this decision as ‘the social media website’). At the hearing the Tribunal reminded the applicant of this evidence and he said that it was true that, as at that time, his page on the social media website contained that information. He said that it was some time ago that he declared on the social media website that he was a Moslem and simply did not think to change that even though he had subsequently become a Christian and encountered difficulties because of that. He told the Tribunal that, at present, his page on the social media website does not declare that he follows any religion. He could not remember when he deleted the reference to him being a Moslem (although it was after his interview with the delegate). He has on one occasion posted a picture to that page showing him in a church, but, when the Tribunal asked him why he did that, he just said there was no reason.
[44]The Tribunal put to the applicant that it was surprised at his evidence that he would have on the social media website, information about himself to the effect that he was a Moslem as at March 2014 when, well before then, he had, so he claimed, become a Christian and suffered much for doing so. In response, the applicant glibly said that he did not think about changing that information nor did he know he had to. The Tribunal put to the applicant that he would have surely wanted information about himself he was willingly making public to, at the least, not indicate he was a Muslim when he had gone through so much to leave that religion and adopt a new one. In response, the applicant said that he did not use his page on the social media website that way, but, when asked why he had that page, he said it was something that everybody did. He then just went back to saying he was not aware that he had to say something on it about religion and did not notice anything about religion. This was the case, even though, he confirmed to the Tribunal, evidence he gave to the delegate that, by the time of that interview, he had posted photographs on his page on the social media website showing himself at locations in Sydney.
[45]To the delegate, the applicant claimed that he had not deleted the reference to him being a Moslem media website because he was using somebody else’s computer. His representative submitted to the delegate that the reference had not been deleted because the applicant thought he was safe in Australia and so he just did not think about it. The Tribunal rejects all of those explanations and finds that the failure of the applicant to delete from his page on the social media website a statement that he is Moslem by as late as March 2014, when he had been in Australia for some months, to be inconsistent with his claim to be an intensely committed Christian who sacrificed much in Bangladesh to pursue that religion.
Application in this Court
In this context the Amended Application contained only one ground, being:-
1.The Tribunal breached section 424A of the Migration Act 1958
Particulars:
By failing to put the Applicant evidence of the Applicant’s Facebook page on pages 24-25 visa the procedures mandated by Section 424A or 424AA of the Act, the tribunal breached section 424A of the Act.
Sections 424AA and 424A of the Act provided at the relevant time as follows:-
424AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
The argument put by Mr Bodisco in support of the Applicant’s ground for judicial review was to the following effect:-
a)The Applicant’s core claim before both the Delegate and the Tribunal was that he was a Christian and that as such he would suffer harm and persecution if returned to Bangladesh, and that whether or not the Applicant was in truth a Christian would be the reason or part of the reason for the Tribunal to affirm the Delegate’s decision;
b)The Facebook page raised by the Tribunal with the Applicant during the Tribunal hearing was “information” for the purposes of s.424A of the Act, for which particulars were required to be given in writing to the Applicant by force of s.424A(1)(a);
c)The Tribunal failed to comply with s.424A of the Act because the particulars of the “information” comprising and relating to the Facebook page were not given in writing as required by s.424A, and this failure was not otherwise cured or rendered irrelevant or harmless by any other sub-sections of s.424A or s.424AA.
d)Failure by the Tribunal to comply with s.424A was a breach which gave rise to jurisdictional error on the part of the Tribunal with the result that the decision of the Tribunal was invalid: SAAP v Minister for Immigration (2005) 228 CLR 294.
e)The temporal effect of s.424A of the Act was not limited to the pre-hearing stage of a review before the Tribunal but operated throughout the review conducted by the Tribunal and was not exhausted once the Tribunal had invited an Applicant to appear before it to give evidence and present arguments pursuant to s.425 of the Act: SAAP v Minister for Immigration (supra).
At the hearing the issues before me were simplified because the Minister took the position that the proceeding should be determined upon the sole basis of whether or not the Facebook page constituted “information” for the purposes of s.424A of the Act. That is to say, the Minister did not argue that if the Facebook page was “information” for the purposes of s.424A some other provision of s424AA or s424A meant that the Applicant could not succeed. The Minister did not seek to argue, for example, that compliance by the Tribunal with s.424A(1) and (2) was unnecessary because, for the purposes of s424A(3)(b), the Facebook page was “information” that the Applicant “gave” to the Tribunal as that term was explained in the cases reviewed by Sundberg J in Minister for Immigration v You [2008] FCA 241 at [13]-[22] and the Full Court of the Federal Court in SZTGV v Minister for Immigration (2015) 229 FCR 90. Rather, the Minister submitted that the Facebook page was not “information” under s.424A(1)(a) and no breach of that section had occurred. This, it was said, was because the Facebook page went only to the Applicant’s credit and was not of itself “information” that constituted a rejection, denial or undermining of the Applicant’s claims.
The Minister in particular relied upon paragraphs [52] and [53] of the decision of Griffiths J in the Federal Court of Australia in SZTNL v Minister for Immigration [2015] 231 FCR 204 at 220, which were as follows:-
[52] Neither of the two relevant pieces of information constituted “information” for the purposes of s 424A(1). Neither Mr X’s letter nor the appellant’s evidence in relation to it given to the delegate comprised a rejection, denial or undermining of the appellant’s claim to be a person to whom Australia owed protection obligations. The relevant information was not, of itself, of “dispositive relevance” to the appellant’s claims for protection, nor did that information, by itself, undermine his claims. Rather, the information, when viewed against other statements made by the appellant, cast doubt on the appellant’s credibility. I accept the Minister’s submission that information merely going to credibility does not fall within s 424A. As Heerey J observed in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [29]:
[29] It can also be noted that the section speaks of information that “would” be the reason etc, not “could” or “might”. This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant's claims.
[53]The relevant two pieces of information became material only because the Tribunal relied upon them in finding inconsistencies in the appellant’s evidence, which lead to the conclusion that he was not a truthful witness. I accept the Minister’s submission that it was these inconsistencies (or the process of comparison between the appellant’s evidence and the factual statements with which the evidence was compared) that counted against him, however, neither inconsistency nor such a comparative process constitutes “information” for the purposes of s 424A(1) (see SZBYR at [18] and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [104] per Buchanan J, with whom Perram J agreed).
Ms Hillary submitted for the Minister that the Facebook page in its context only went to the Applicant’s credibility and therefore could not be “information” under s.424A, and the Applicant’s failure to change his claimed religion on the Facebook page as at the date of the Delegate’s decision did not in its terms undermine, deny or reject the Applicant’s claims.
Before turning to consideration of the competing arguments, I also need to record that it was agreed between the parties at the hearing that it was irrelevant whether the Delegate or the Applicant took the initiative in raising the Facebook page at the interview with the Delegate on 17 March 2014. I assumed this was because the Minister was not arguing that the Applicant “gave” the Facebook page to the Tribunal, as noted in paragraph [16] above.
Consideration
First, in my view, the Facebook page comprised, contained or conveyed “information” in the ordinary meaning of that word which, most appropriately for present purposes, is the second sense given by the 3rd edition of the Oxford English Dictionary, namely:
2. (a) Knowledge communicated concerning some particular fact, subject, or event; that of which one is apprised or told; intelligence, news
See also SZUMY v Minister for Immigration [2015] 296 FLR 85 at 98 ([60]) per Judge Smith.
It is also appropriate to refer to the plurality judgment in SZBYR v Minister for Immigration (2007) 235 ALR 609 where at 616 ([18]) the following was said in the context of s.424A of the Act:
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
It is next necessary to determine if this information was “information” for the purposes of s.424A. The fact that on 17 March 2014 the Applicant was asserting on his Facebook page that he was a Muslim was in stark inconsistency with his case before both the Delegate and the Tribunal that he had converted to Christianity in Bangladesh before he left and was baptised there on 17 September 2013 and again baptised by the Hillsong Church on 20 October 2013, some six months earlier.
However, whilst the Facebook page communicated an inconsistency with the Applicant’s claim to be a Christian, that was not all it did. Information and documents comprising, communicating and conveying information can serve two ends. They can speak to a person’s inconsistency and lack of credibility, as the Facebook page obviously did but also at the same time constitute information rejecting, denying or undermining an applicant’s claims to be a person to whom Australia owes protection obligations. In this case, the Facebook page contained evidentiary material that had the effect of being a rejection, denial or undermining of the Applicant’s core and essential claim to be a Christian and in my view was information for the purposes of s.424A of the Act “that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. It was much more than just merely relating to “the existence of doubts, inconsistencies or the absence of evidence”: see the reference to SZYBR recorded at paragraph [21] above.
In Minister for Immigration v SZLFX (2009) 238 CLR 507 at 514 ([25]) the following was said:
[25] As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship (27), s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.
In this case, it is clear from paragraph [43] of the Tribunal’s Decision Record (reproduced at paragraph [12] above) that the Tribunal did regard the information on the Facebook page that the Applicant claimed to be a Muslim as at 17 March 2014 as part of the reason for affirming the Delegate’s reasons under review because it “enhanced” the Tribunal’s “… overall impression of untruthfulness on the Applicant’s part with respect to his claims to be a committed Christian”.
I also consider that my view that the Facebook page constituted “information” for the purposes of s.424A of the Act is supported by the following passage from the judgment of Heerey J in MZXBQ v Minister for Immigration (2008) 166 FCR 483 at 492 ([27]), where he said as follows:-
[27] SZBYR, and in particular [17] of the majority judgment, essentially says that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa. It would “undermine” his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.
In this case, the Applicant claimed fear of persecution and harm in Bangladesh because he was a Christian and the Tribunal had and took into regard his own Facebook page statement that said, well after the time he had claimed to have become a Christian, that he was in fact a Muslim. His Facebook page accordingly, at the very least, “undermined” his claim to have a well-founded fear of persecution and a potential for harm by reason of his asserted Christian religion.
Accordingly, in my view, the Facebook page was “information” for the purposes of s.424A of the Act of which particulars needed to be given to the Applicant, but were not. Accordingly, having regard to the way this case has been conducted, the decision of the Tribunal, notwithstanding the strength of its other findings which led it not to be satisfied that the Applicant met the Refugee Convention Criterion in s.36(2)(a) or the complementary protection criterion obligations under s.36(2)(aa) were applicable, must be set aside.
I note in conclusion that there was no suggestion for the Minister that constitutional writs should not issue on any discretionary ground.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 23 August 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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