BAH16 v Minister for Immigration
[2018] FCCA 3700
•18 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAH16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3700 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 |
| Applicant: | BAH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 893 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 7 August 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondents: | Mr Rogers |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application for judicial review filed 2 May 2016 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 893 of 2016
| BAH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in this court on 2 May 2016 under the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks judicial review against the decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on
29 March 2016. In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and
Border Protection (“the Minister”) made on 6 December 2013 refusing to grant the applicant’s protection (class XA) visa (“the visa”).
The tribunal’s decision is found in the court book at pages 350 to 368.
Summary
For the reasons that follow, this application for judicial review fails.
I make orders dismissing the proceedings and order the applicant to pay the first respondent’s costs.
Background
The applicant is a 24 year old male national from Sri Lanka who arrived in Australia as an irregular maritime arrival on 16 July 2012.[1]
[1] Court book page 186.
During his irregular maritime arrival entry interview, the applicant set out the reasons why he left his country of nationality in some detail.[2]
[2] Court book pages 19 to 21.
Relevantly, the following exchange is recorded:
Are there any other reasons why you left Sri Lanka? There is a problem with ethnicity. From our village, about 16 or 17 kilometres away is a place called Kanthagkudi (it is on both sides of our village). Even if we go to that village in an auto there is no safety for our lives. There may be cutting by swords and things.
Is this a Sinhalese village? Muslim.
How would they know if you’re not a Muslim? They would know their own ethnicity. If there is any trouble in that village they will ask for your ID.[3]
[3] Court book page 21.
On 31 October 2012, the applicant applied for the visa.[4]
[4] Court book pages 28 to 102.
On 6 December 2013, a delegate of the Minister refused the application.[5]
[5] Court book pages 185 to 200.
On 12 December 2013, the applicant applied for a review of the delegate’s decision to the Refugee Review Tribunal (as it was then known).[6]
[6] Court book pages 201 to 207.
On 22 October 2015, the applicant, assisted by his registered migration agent and an interpreter, appeared before the tribunal to give evidence and present arguments in support of his application for review.[7]
[7] Court book pages 341 to 344.
The applicant was represented throughout all stages of his application for the visa. His representatives have provided various documents on his behalf throughout the process including, relevantly:
a)a statutory declaration by the applicant dated 30 October 2012;[8]
b)a detailed submission in support of the applicant’s application for review of the delegate’s decision to refuse the protection visa dated 15 January 2014;[9]
c)a further detailed pre-hearing submission in support of the applicant’s application for review;[10] and
d)a post hearing submission dated 29 October 2015.[11]
[8] Court book pages 64 to 66.
[9] Court book pages 214 to 278.
[10] Court book pages 290 to 340.
[11] Court book page 346.
The applicant’s claims for protection were expanded upon and further clarified on his behalf in this further correspondence.
On 29 March 2016, the tribunal affirmed the decision not to grant the applicant the visa.[12]
[12] Court book pages 350 to 368.
The applicant’s claims
As summarised in the tribunal decision record, the applicant claims:
a)he assisted a 'Tamil Politician' in 2010 by putting up notices and pamphlets. The opposition Tamil People Freedom Tigers (“TMVP”) approached him about why he was not supporting them. When he refused to join their party, they took his motorbike, beat him and threatened to shoot him if he did not join. Out of fear, he handed out notices for their campaign. The Criminal Investigation Department (“CID”) and Sri Lankan army (“SLA”) came to his house and questioned him about why he was helping the TMVP. The TMVP then officially asked him to join and work for them. To avoid the TMVP he went to his sister's in Puttalam.
b)In 2011, the applicant returned home to Batticoloa. His mother received an unknown call asking for money or else the applicant would be killed because he escaped and returned to work. Two Tamil males 'from the political party' approached him on a beach and threatened him with a pistol. The next day people called his home saying his family had to give them money and threatening the applicant. His family did not pay. This is when he decided to come to Australia.
c)The applicant alleged to fear harm from the TMVP, armed groups, the SLA and the CID. He said that he will be considered a spy by political parties because he came to Australia and he defied their orders. The applicant also made claims to fear harm from Muslims in his protection interview.[13]
[13] Court book page 353 at paragraph [19].
The tribunal’s reasons
The tribunal found that the applicant’s key claims for protection were not credible; in fact, the tribunal found much of the applicant’s evidence in relation to his alleged political involvement to be generalised, vague and inconsistent.[14] In particular, the tribunal found that:
a)the applicant’s evidence about his claims of being forced to put up posters for the TMVP was vague, confused and lacked detail about where he did this, how and whether he was alone or accompanied;[15]
b)the applicant’s evidence about his involvement with a TNA campaign also lacked detail as the applicant was unable to describe anything he did for the campaign apart from putting up posters and being with the candidate;[16] and
c)the applicant’s evidence about being threatened and approached by the CID lacked credibility, as the applicant was unable to explain why the CID would be interested in threatening him given his young age and low level of involvement with the TMVP.[17]
[14] Court book page 358 at paragraph [57].
[15] Court book page 359 at paragraph [61].
[16] Court book page 359 at paragraph [62].
[17] Court book page 360 at paragraph [66].
The tribunal gave little weight to the letters of support provided by the applicant as the claims in the letters were inconsistent with the applicant’s own evidence about his political involvement.[18]
[18] Court book page 359 at paragraphs [63] to [64].
The tribunal did not accept:
a)that the applicant has ever been involved in any election campaigning or other political activities in the past, either for the Tamil National Alliance (“TNA”) or TMVP[19]; or
b)that the applicant had faced extortion in the past.[20]
[19] Court book page 362 at paragraph [72].
[20] Court book page 362 at paragraph [73].
The tribunal found the applicant’s evidence regarding threats he faced from Muslims to be vague and generalised and did not accept that the applicant faced a risk of serious or significant harm from Muslims in surrounding villages.[21]
[21] Court book page 362 at paragraph [74].
In relation to the applicant’s claim to face harm as a Tamil or perceived Liberation Tigers of Tamil Eelam (“LTTE”) supporter, the tribunal referred to country information and did not accept that the applicant faced a real chance of harm in this regard.[22]
[22] Court book pages 362 at paragraph [75] to page 364 at paragraph [80].
As a failed asylum seeker, the tribunal accepted that the applicant would be subject to standard questioning and security checks upon his return to Sri Lanka but this did not amount to serious or significant harm.[23] The tribunal found that due to the applicant’s illegal departure, he would likely be held in remand for a short period if charged with an offence but would be granted bail and, if required, his parents or siblings would be able to act as guarantors.[24] Further, the tribunal found that the applicant would likely be fined but could afford to pay the fine if he was convicted.[25]
[23] Court book pages 364 at paragraph [81] to page 365 at paragraph [86].
[24] Court book pages 365 at paragraph [87] to page 366 at paragraph [91].
[25] Court book page 366 at paragraphs [92] to [94].
Having considered the applicant’s claims separately and cumulatively, the tribunal did not accept that the applicant faced a real chance of serious harm from the TMVP, other armed groups, Sri Lankan authorities or anyone else due to his Tamil ethnicity or for any other reason alleged by him.[26] The tribunal was therefore not satisfied that the applicant held a well-founded fear of persecution or that there was a real risk the applicant would face significant harm should he be removed from Australia.[27]. The tribunal therefore found that the applicant does not satisfy the criteria in either section 36(2)(a) or 36(2)(aa) of the Act and affirmed the decision under review.[28]
[26] Court book page 367 at paragraph [99].
[27] Court book page 367 at paragraphs [99] to [100].
[28] Court book page 368 at paragraphs [101] to [104].
Proceedings in this court
The applicant represented himself in this court and was assisted by an interpreter. The matter first came before me for determination on 26 June 2018. At that time, the applicant sought an adjournment to allow him to file further material. The adjournment was granted and orders were made for the applicant to file any amended application and submissions 21 days prior to the adjourned date.
Notwithstanding that order, the applicant did not file any amended application or written submissions. When asked why, he replied:
So I have been going to various solicitors and they were all talking about engaging barristers… for that they need a lot of money and I was not in a position to give that amount of money… so I went to… the Asylum Seeker Resources Centre at Footscray and they prepared this document for me and they told me to give it at the court.[29]
[29] Transcript page 3 at lines 4 to 9.
At the hearing before me on 7 August 2018, the applicant sought leave to tender the document referred to as written submissions. Counsel for the minister did not object and the applicant’s written submissions were marked Exhibit A.
After explaining the role of the court in these proceedings, namely that it is limited to considering whether the tribunal has engaged in a jurisdictional error and is not permitted to review the merits of the tribunal’s decision, the applicant confirmed that there was nothing further he wished to say in support of his application, other than what was contained in his written submissions.[30]
[30] Transcript page 4 at lines 8 to 33.
I will now turn to deal with the applicant’s grounds of review.
Grounds one and two
The applicant’s first ground of review is:
The Tribunal has not assessed the applicant’s claims cumulatively being a Young Tamil of Hindu faith from the East of Sri Lanka with a perceived association and political opinion of the political party TNA.[31]
[31] Page 3 of the applicant’s application filed 2 May 2016.
The applicant’s second ground of review is:
The Tribunal has not assessed the applicant’s integer claim of being a Hindu by faith.[32]
[32] Page 3 of the applicant’s application filed 2 May 2016.
These two grounds are related and I will deal with them collectively.
It was submitted on behalf of the applicant that:
Nowhere in the decision demonstrates that the tribunal assessed his claim of being a supporter of the TNA or his social status as a Young Hindu Tamil from the east of Sri Lanka.[33]
[33] Exhibit A.
The applicant referred to Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136; 194 ALR 244 in which it was relevantly held that the tribunal had erred by failing to properly consider all of the applicant’s claims.
It was submitted on behalf of the Minister that the tribunal had in fact thoroughly considered each of the applicant’s claims to fear harm and found individually, that he did not face a real chance of serious harm from anyone on the basis of:
a)his Tamil ethnicity;
b)imputed LTTE political opinion;
c)actual/imputed political opinion in support of the TNA and/or TMVP;
d)as a failed asylum seeker/returnee from a western country; or
e)for having left Sri Lanka illegally.
The tribunal also considered the applicant’s claims cumulatively at paragraph [99] of its decision record. The Minister submitted that the tribunal’s assessment of the applicant’s claims, both individually and cumulatively, discharged the tribunal’s obligation to consider the case before it.
It was also submitted on behalf of the Minister that no claim arose on the basis of the applicant’s status as a Hindu.[34]
[34] Paragraph 19 of the first respondent’s written submissions filed 12 June 2018.
As noted by the Minister, the tribunal is required not only to consider claims expressly made by an applicant, but also claims which clearly arise on the materials before it.[35]
[35] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1.
The tribunal acknowledged that the applicant was a Tamil Hindu.[36] Having regard to the material filed by the applicant and on his behalf by his migration agent throughout this process, there is no basis on which it can be said that he made a claim based on his religion as a Hindu. The claims made by the applicant principally related to:
a)being forced to put up posters for the TMVP;
b)his involvement with a TNA campaign; and
c)being threatened and approached by the CID.
[36] Court book page 354 at paragraph [23].
To the extent that the applicant also claimed of a fear as a result of neighbouring Muslim villages, it is not clear that this was a claim of fear because he was a Hindu such that this claim could be said to clearly arise from the material before the tribunal in the NABE sense.
In any event, even if I am wrong on that assessment, it is clear that the only claim which could even arguably be said to amount to a claim on the basis of his religious status is the one relating to his fear arising from living near neighbouring Muslim villages. That claim was clearly considered and addressed by the tribunal at paragraphs [49] and [74] of the decision record.
For those reasons, grounds one and two are not made out.
Grounds three and four
The applicant’s third ground of review is:
The Tribunal misconstrued the threat to the applicant by the CID without realising the applicant was not privy to the motive of the CID towards him and applied the wrong test in rejecting this piece of evidence.[37]
[37] Page 3 of the applicant’s application filed 2 May 2016.
The applicant’s fourth ground of review is:
The Tribunal’s finding that the TMVP or an unknown group would not have had (sic) made phone calls demanding money and threatened the applicant with death was not supported by evidence.[38]
[38] Page 3 of the applicant’s application filed 2 May 2016.
The applicant further submitted that although the tribunal accepted that the TMVP engaged in extortion,[39] the distinction made that such extortion was only directed at business people had no logical, rational or probative basis.[40] Consequently, the tribunal’s conclusion that the applicant was not targeted by the TMVP was not open to it.
[39] Court book page 362 at paragraph [73].
[40] Exhibit A.
The applicant relied on the case of DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (“DAO16”) in support of the distinction between credibility findings and a finding which was not logical or rational or otherwise lacked a probative basis.
In DAO16, the Court summarised the relevant principles, including:
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review … The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae … In each case it is necessary to analyse in detail what the decision-maker has decided …
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis. In this regard, Crennan Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 … that:
135… A decision might be said to illogical or irrational if only one conclusion is open on the evidence and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. (emphasis added)
(3)…
(4)…
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review…. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question to be one on which reasonable minds may come to different emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality.[41]
[41] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] (omitting cases referred to).
Ultimately in DAO16, the Full Court of the Federal Court of Australia found that the tribunal’s decision was infected with jurisdictional error on the basis that it was legally unreasonable.
In response to this ground of review raised by the applicant, the Minister submitted that credibility findings are matters for the tribunal citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajuasingham (2000) 58 ALD 609.
It was further submitted that the findings of fact made by the tribunal were open to it, as were the credibility findings made by the tribunal which in turn informed those findings of fact.
In setting out its findings and reasoning,[42] the tribunal comprehensively analyses the evidence before it and sets out its various findings. It relevantly states:
The tribunal found much of the applicant’s evidence in relation to his alleged political campaign involvement generalised, vague and inconsistent. Furthermore, the applicant’s evidence about the nature, motivation and timing of various threats he received in Sri Lanka was convoluted, confused and inconsistent.[43]
[42] Court book pages 358 at paragraph [55] to page 367 at paragraph [98].
[43] Court book page 358 at paragraph [57].
These findings and conclusions were made in the context as set out above whereby the applicant not only made various written submissions prepared on his behalf by his migration agent, but also participated in a hearing before the member with the benefit of an interpreter. It is noted that the hearing record indicates that the hearing lasted for some three hours[44] during which the member put to the applicant various concerns they held about his evidence, as evidenced in the tribunal decision record.
[44] Court book page 341.
In addition, the applicant’s representative wrote to the tribunal member after the hearing and as well as providing further clarification on a couple of issues, wrote:
Our client notes that he was young at the time and further, much time has passed since the various elections took place. We submit that these matters should be considered when assessing his credibility.[45]
[45] Court book page 346.
Upon considering the post-hearing submissions made on behalf of the applicant, the tribunal relevantly said:
The tribunal has taken account of the applicant’s age in its assessment of his credibility but is not satisfied that the inconsistencies, confusion and discrepancies identified in the applicant’s evidence, including in relation to threats received approximately two years after his alleged campaigning for the TNA and TMVP, can be simply explained due to his youth at the time of certain events.[46]
[46] Court book page 258 at paragraph [58].
The tribunal went on to consider the various discrepancies in the applicant’s accounts of his interactions with the TMVP and others whom he claimed to fear. I am satisfied that the tribunal’s conclusions were open to it.
Similarly, the tribunal’s conclusions that the applicant was not approached, threatened or warned by the CID or the SLA regarding his work for or association with the TMVP was based on its assessment of his credibility. Again, this finding was open on the basis of the material before the tribunal.
It was further submitted on behalf of the Minister that insofar as ground four seeks to challenge the basis upon which the tribunal found that neither the applicant nor his family had received any threatening telephone calls, this too is a challenge to the findings of fact and credibility findings made by the tribunal.[47]
[47] Paragraph 22 of the first respondent’s written submissions filed 12 June 2018.
The Minister submitted that it was open to the tribunal to disbelieve the applicant’s evidence in relation to this matter.[48]
[48] Paragraph 22 of the first respondent’s written submissions filed 12 June 2018.
The tribunal noted that it did not:
…accept as credible that the TMVP or an unknown armed group would make phone calls to the applicant’s family demanding money from them and threatening the applicant with death.[49]
[49] Court book page 360 at paragraph [68].
The tribunal’s concerns about the applicant’s statement in this regard were put to him in the course of the hearing and he was given an opportunity to respond to those concerns. Importantly, the tribunal put to the applicant its concerns that whilst there are reports that the TMVP did engage in extortion and bribery, it was of the view that it was likely the TMVP would target people who had the capacity to pay.[50] In addition, the tribunal noted that the applicant’s version of the extortion claim varied over the course of the application process.[51]
[50] Court book pages 360 to 361 at paragraph [68].
[51] Court book page 361 at paragraph [68].
The tribunal further noted its concerns about the plausibility of the applicant’s claims about being approached by armed men on a beach and stated:
The applicant was unable to explain why another group would seek to extort money from him and the tribunal does not consider as credible the applicant’s vague evidence that another group opposed to the TMVP or the CID would choose to threaten and extort money from him and his family simply because the applicant had helped the TMVP – allegedly against his will – for two weeks a year earlier.[52]
[52] Court book page 361 at paragraph [69].
The tribunal dealt with the applicant’s claims regarding the alleged extortion of money from his money[53] and concluded that:
The applicant’s confused and implausible evidence leads the tribunal to find that the applicant, his mother or anyone in his family did not receive any threatening phone calls from the TMVP or other unknown persons demanding money or threatening the applicant or his family ... in any way.[54]
[53] Court book page 361 at paragraph [70].
[54] Court book page 361 at paragraph [71].
It is against these findings that the comments made by the tribunal at paragraph [73] of its decision record must be read. It was open to the tribunal, having regard to the evidence before it, including having regard to its assessment of the applicant’s credit, to have reached the conclusions it did.
This case is distinguishable on its facts from DAO16 as in this case, the tribunal has not dismissed the evidence of any witness put forward by the applicant; rather, it has weighed all of the evidence but simply not believed the applicant’s claims. Such a conclusion was reasonably open to the tribunal.
For these reasons, grounds three and four are not made out.
Grounds five and six
The applicant’s fifth and sixth grounds of review are:
The Tribunal breached section 420 of the Migration Act in its conduct of operation when it rejected the applicant’s involvement in the campaign of TNA.
The Tribunal breached section 422B of the Migration Acct (sic) by not affording natural justice to the applicant and thereby fell in to (sic) jurisdictional error.[55]
[55] Page 3 of the applicant’s application filed 2 May 2016.
The applicant does not address these grounds in his written submissions and as noted above, did not make any oral submissions in support of his grounds of review.
It was submitted on behalf of the Minister that sections 420 and 422B do not, in and of themselves, provide an applicant with substantive rights. That is, they are not capable of being breached or giving rise, on their own, to a jurisdictional error.[56]
[56] See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [36]-[58].
Section 420 of the Act relevantly provides:
The Tribunal, in reviewing a Part 7-reviewable decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), the High Court considered section 353, which is an equivalent provision to section 420, but operates in the context of Part 5 reviewable decisions. In Li, French CJ observed:
Section 353(2) does not import substantive common law requirements of procedural fairness… To the extent that the Full Court of the Federal Court treated the direction in s 353 as giving rise to grounds of judicial review, it was in error.[57]
[57] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [16].
Also in Li, their Honours Hayne, Kiefel and Bell JJ stated:
Section 353 may commence with the imperative “shall”, but what follows, according to the Minister’s submission, are statements of goals rather than any identified action required to be undertaken. The adjectives “fair, just, economical, informal and quick” are apt to apply to objectives but not to enforceable requirements, not the least because each pulls the Tribunal in a different direction. It is contended that provisions of this kind do not detract from, but nor do they add to, such obligations, limits or powers as arise from the language of the statute.
… provisions such as 420 are intended to be facultative, not restrictive. Their purpose is to free tribunals, to an extent, from constraints which apply to courts…[58]
[58] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [51]–[52].
Section 422B of the Act essentially provides that the provisions in Division 4 of Part 7 of the Act are exhaustive insofar as the rules of procedural fairness are concerned.
In the absence of any alleged breach of Division 4, section 422B does not create any additional rights or obligations.
In any event, it is clear from the tribunal’s decision record and the material contained in the court book more generally, that the applicant was afforded sufficient opportunity to appear before the tribunal at a hearing to give evidence and present arguments relating to the issue arising in relation to the decision under review.
The tribunal complied with its obligations under the Act. The applicant was not denied procedural fairness or natural justice.
For these reasons, grounds five and six are not made out.
Conclusion
As none of the applicant’s grounds have been made out, this application must be dismissed with costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 18 December 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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