BZAAA v Minister for Immigration
[2017] FCCA 1714
•14 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAAA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1714 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal affirming a decision to refuse to grant the Applicant a protection visa – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.48A |
| Cases cited: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 |
| Applicant: | BZAAA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 61 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 14 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2017 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 61 of 2016
| BZAAA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 December 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of China, first made an application for a protection visa in August 2009. The application was refused in October 2009. The Applicant sought review. In April 2010, the Refugee Review Tribunal (the RRT) affirmed the delegate’s decision. Subsequent judicial review proceedings were unsuccessful. A special leave application to the High Court was deemed abandoned.
On 11 March 2014, after the introduction of the complementary protection criterion and the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71, the Applicant made the protection visa application the subject of the Tribunal’s decision of 18 December 2015. After that application was refused, the Applicant sought review by the Tribunal. He attended Tribunal hearings in October and November 2015. As indicated, the Tribunal affirmed the delegate’s decision.
In support of his second protection visa application, the Applicant provided a personal statement setting out claims which related in essence to consequences of his wife’s involvement in a traffic accident in September 2012. He claimed that while riding a bicycle she was hit by a private car. While her view was that the car driver was responsible, the police had investigated and told his wife that it was her fault, that she had run a red light and that she was required to pay compensation to the driver, whom she discovered was Secretary of the City Party Committee.
The Applicant claimed that subsequently the police continued to require his wife to pay compensation and other expenses to the driver; that lawyers were not prepared to take her case; that she petitioned a higher level of government; and that she subsequently received a threatening telephone call. The Applicant claimed that in April 2013 the police again sought compensation and that his wife paid an amount but argued with the police when they visited. According to the Applicant, a struggle occurred, the police said his wife had assaulted them, and she was detained for seven days until she paid a fine and was released.
The Applicant claimed that his wife had told him that if he went back to China, the police would send him to jail without any charges. He claimed he was also scared when he recalled the memory of being arrested for what he described as underground meetings. He said he had to earn money for his wife to pay the compensation and that the Chinese officials and the police were corrupt.
The reference to “underground meetings” reflects the Applicant’s claims in his first protection visa application that he feared persecution for reason of what was initially described as a belief in Christianity, and subsequently said to be a claim that the Applicant was a member of the Shouters sect in China.
In its reasons for decision the Tribunal outlined the background to the application before it and the delegate’s decision, which had addressed both the Applicant’s claims in relation to practising his Christian faith and his claim that he would be harmed on account of his wife being involved in a traffic accident.
The Tribunal acknowledged that s.48A of the Migration Act 1958 (Cth) (the Act) imposed a bar on a further protection visa application where a previous application had been refused, but also had regard to the effect of the decision of the Full Court of the Federal Court in SZGIZ that the operation of s.48A, at the time of the visa application, was confined to a further application raising the same criterion. The Tribunal found that it did not have power to consider the Refugees Convention criterion which had been the basis for the Applicant’s first protection visa application. It confined its consideration to the Applicant’s claims under the complementary protection provisions.
The Tribunal described the Applicant’s personal statement. It referred to the fact that no supporting documentation had been provided with the application. It described the Applicant’s participation in a departmental interview and the two Tribunal hearings.
The Tribunal summarised the Applicant’s claims as claims that the police would be “after him” and would detain him because of the “family religious gatherings about which he made his previous claims for protection”. He claimed to still be a practising Christian; that he attended a Mandarin-speaking church service every Sunday in Auburn; and that as a Christian he would hold gatherings in his home in China if he returned and then would be detained by the authorities, as was said to have happened in April 2008.
In addition, the Tribunal recorded that the Applicant claimed that in September 2012 his wife had been involved in an accident with a car driven by a powerful person who insisted the accident was her fault and demanded compensation. He claimed that when his wife argued with the police, she was detained and forced to pay compensation, and that she had advised him not to return to China, as he would be involved in the claim for compensation and charges relating to her and possibly sentenced. He claimed that he feared he may be asked to pay the compensation and that as police and government officials were corrupt, they would take every opportunity to take money from them and it would not be possible to go to the courts about this matter.
The Tribunal addressed these claims as claims that there was a real risk the Applicant would suffer “significant harm” in terms of the complementary protection criterion if he returned to China, due to his Christian beliefs and practice and/or because he would be involved in his wife’s dispute with local authorities.
The Tribunal set out in some detail the oral evidence of the Applicant in relation to his claims. It recorded that it had raised various issues with him, including why he had not included his daughter (who came to Australia with him) in his protection visa application. It also recorded in detail a discussion with the Applicant about his claimed practice of Christianity through the Shouter sect in China and in Australia as well as his claims for protection as a result of his wife’s accident.
In addressing the Applicant’s credibility, the Tribunal stated that it had raised concerns with the Applicant in relation to his credibility, noting a number of inconsistencies between his oral evidence at the two hearings and compared to his previous evidence. It gave examples, such as differences between the Applicant’s evidence in relation to whether his parents and brother were arrested and detained with him in April 2008 as a result of their involvement in a gathering of Shouters. The Tribunal was not satisfied by the explanation that the Applicant had forgotten what he said. It was of the view that it would be reasonable to expect that the Applicant would remember whether his parents and brother were arrested and detained with him.
The Tribunal also recorded that it had raised concerns about the vagueness of the Applicant’s understanding of basic Christian tenets, such as the meaning of the resurrection, given his evidence that he had attended church regularly since arriving in Australia in 2008; his inability to recall in any detail the subject of a sermon he had heard only a few days prior to the hearing; and the lack of credible reasons for not being baptised in the past six years, given his assertion in 2010 that it was his intention to do so.
The Tribunal also expressed concern about the supporting evidence provided in relation to the accident and compensation claim involving the Applicant’s wife. It recorded that it had given the Applicant additional time after the hearing to provide relevant documents supporting his claims that he would be at risk of arrest due to the traffic accident and the resulting demand for compensation from a corrupt official. It had regard to a petition document he provided, but noted that it stated that his wife had initially claimed, immediately after the accident, compensation for “car loss” (although she was said by the Applicant to have been riding an electric bicycle) and also that the claims of the other person said to have been involved in the accident were framed in exactly the same terms as the claims the wife made against him.
The Tribunal found, based on concerns which it elaborated on, that the Applicant was not a witness of truth. It was not satisfied he had told the truth in relation to critical aspects of his claims.
The Tribunal did not find the Applicant’s evidence relating to his history of being a member of the Shouter sect in China to be credible. First, it did not find to be credible his evidence that one of the reasons he did not include his daughter (who came to Australia with him) on his protection visa application was because he did not want her to find out what had happened to him in China when he was detained in April 2008. The Tribunal noted that this incident was said to have occurred only a few days before the Applicant departed China, at a time when his daughter was living in his household, and in circumstances where he was allegedly detained for three days and needed medical treatment the day after he was released, three days before he and his daughter left China. The Tribunal found it somewhat implausible that the Applicant’s daughter was unaware that something had happened to the Applicant in the week prior to their departure.
The Tribunal was not satisfied the Applicant was or is a member of the “shouter” sect of Christianity. It had regard to his inability to give any details about the differences between “shouters” and other denominations or about any of the practices unique to “shouters”.
It did not find credible the Applicant’s evidence that his parents and brother had been detained at the same time as himself as a result of attending a family church gathering. It had regard to his failure to give such evidence to the Department in either the application for protection or to the RRT. It observed that there was no explanation for why there was no record of the Applicant mentioning the involvement of his parents and brother at an earlier time (except his assertion that he thought he had told the Department and the previous Tribunal). It had regard to the fact that the Applicant had then changed his story at the second Tribunal hearing (in November 2015) and said that he was the only member of his family who was detained.
The Tribunal addressed the Applicant’s evidence that his family members continued to hold Christian beliefs and to attend gatherings of Christians in private homes in China. However it had regard to the fact that his evidence was also that none of them had been detained, harmed or otherwise persecuted as a result of their Christian beliefs or practices since the Applicant departed China and that while the Applicant stated they had been warned not to attend Christian gatherings, that was the extent of the authorities’ concerns.
On balance, the Tribunal was not satisfied that the Applicant was a practising Shouter or detained by Chinese authorities as a result of his attendance at a family or Shouter church gathering before his departure from China. There is an obvious mistake in the date referred to by the Tribunal in this part of its reasons (“April 2013”) as it clearly intended to refer to the date of April 2008 as described elsewhere in the reasons.
The Tribunal was not satisfied there were substantial reasons for believing that the Applicant met the complementary protection criterion as a result of any real or perceived involvement in gatherings of Shouters or for his imputed beliefs or engagement in Shouter practices if he returned to China now or in the reasonably foreseeable future.
The Tribunal considered the claims related to the Applicant’s current Christian beliefs and practices based on his claim that he regularly attended church services at a Mandarin-speaking church in Auburn. In this context the Tribunal considered whether the Applicant had become a practising Christian since arriving in Australia. It had regard to the fact that the Applicant was unable to provide the name or address of the church, which he claimed was because he could not speak English. He was also unable to tell the Tribunal any details about the last sermon he had heard only a few days before the hearing. The Tribunal was not satisfied that the Applicant’s illiteracy or poor education explained why he was unable to remember the content of such a sermon.
The Tribunal also had regard to the extent of the Applicant’s understanding of Christian beliefs and his inability to tell the Tribunal anything about the significance of the resurrection (which was allegedly the topic of the last sermon he had heard), or to give a coherent reason why he had yet to be baptised, despite his stated intention in that respect over six years earlier, his acknowledgement of the importance of baptism as a part of Christian belief and his claim that God would not accept him if he was not baptised. It also recorded that the Applicant acknowledged he was not a leader in the church and had never been identified as having a leading role.
The Tribunal considered that the level of the Applicant’s knowledge of Christianity was less than could be expected of someone who had been attending a Christian church reasonably regularly since 2008 as claimed and that his failure to be baptised, despite his claim as to the importance of baptism, reflected poorly on his credibility and the reliability of his evidence about his current belief in and practice of Christianity.
The Tribunal also had regard to the absence of any supporting evidence as to the Applicant’s attendance at the Auburn church or his involvement in any church activities and his inability to identify the name of the church.
The Tribunal was not satisfied that the Applicant was currently a practising Christian or that he had ever been a practising Christian. It was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to China there was a real risk he would suffer significant harm (as defined in the Act) on the basis of any real or perceived involvement in Christian gatherings in private homes in Fujian province or for his imputed beliefs or practice of Christianity, now or in the reasonably foreseeable future.
The Tribunal also considered the claims relating to the Applicant’s wife’s dispute with a Chinese official. The Tribunal accepted that the Applicant’s wife was involved in a road accident in September 2012 and that she was asked to pay compensation for the alleged damages. It accepted that his wife petitioned the People’s Court of Fuqing City in February 2013. It accepted the Applicant’s evidence that his wife was detained for some days in May 2013 as a result of her protests and petition about the injustice of being asked to pay compensation for the accident (which she believed was not her fault) and as a result of a struggle she had with the police. The Tribunal also accepted that the wife was released from detention after she paid a fine.
However, the Tribunal had regard to the Applicant’s evidence that his wife had not been detained, harmed or threatened with harm since the May 2013 incident and had not made any further payments in respect of the demand for compensation. It was of the view that even if it accepted that local authorities occasionally visited the wife’s house to ask for money, neither the local authorities nor police had taken any further action to pressure her to borrow money or to provide compensation.
Given the absence of any threat of harm to his wife in the past two and a half years, the Tribunal was not satisfied that the Applicant would be detained by authorities on return to China in respect of the wife’s compensation claim simply because they were a couple as claimed.
The Tribunal had regard to the Migration Act definitions of concepts amounting to significant harm for the purposes of the complementary protection criteria. It did accept that the local authorities may perceive the Applicant to be wealthier than he actually was because of his long-term residence in Australia and therefore may make demands that he pay the compensation demanded of his wife. However it observed that the Applicant had not made any claim that he would be arbitrarily deprived of his life, sentenced to a death penalty, subjected to torture or to cruel or inhuman treatment or to punishment or degrading treatment or punishment.
The Tribunal also had regard to the extent and nature of the evidence about the Applicant’s wife being detained in May 2013 after a struggle with police and her protest. It acknowledged that the Applicant claimed that she was beaten, but found there was an absence of details, other than a reference to bruising on her arm, and that she had not required medical attention. It also had regard to the fact that the Applicant stated that his wife had not suffered any harm or threat of harm as a consequence of not making further payments over the past two and a half years. The Tribunal was not satisfied there were substantial grounds for believing there was a real risk the Applicant would suffer significant harm now or in the foreseeable future as a result of compensation claims made against his wife over three years earlier if he returned to China.
The Tribunal considered all the evidence both individually and cumulatively. It repeated that it was not satisfied that the Applicant was a “shouter” in China or currently a genuine practising Christian. It was not satisfied the Applicant was or is of any adverse interest to the Chinese authorities due to imputed or actual religious beliefs or practices. It was not satisfied there were substantial grounds for believing there was a real risk that, as a consequence of being his wife’s husband, the Applicant would be held responsible for compensation payment as a result of her accident or that he would be detained or suffer significant harm if he returned to China, now or in the foreseeable future.
In addition, for the sake of completeness the Tribunal considered the Applicant’s concerns that he may be harmed as a failed asylum seeker. It found that this was contrary to cited country information.
The Tribunal was not satisfied the Applicant met the complementary protection criteria. It affirmed the decision under review.
The Applicant sought review by application filed in this court on 13 January 2016. There are three grounds in the application. The Applicant did not file written submissions and, when given the opportunity to elaborate on the grounds in oral submissions, he said that he had nothing to add.
However in submissions in reply, the Applicant claimed he had a fear of returning to China. He referred to the fact that he had provided evidence of his wife’s car accident. He submitted generally that the Tribunal, or possibly the Department, could investigate or, indeed, go to China if necessary.
Contrary to the Applicant’s contention, the Tribunal accepted the Applicant’s factual claims and evidence about his wife’s involvement in a car accident and the consequences for her, including the petition, detention and payment of compensation and a fine. Beyond this, he seeks impermissible merits review. Insofar as he claimed that the Tribunal was under a duty to inquire, there is no general duty on the Tribunal to make enquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [43] per Gummow and Hayne JJ). This is not a case in which there has been shown to be any failure to make an obvious enquiry about a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25].
The First Respondent addressed the grounds in the application in both written and oral submissions. The first ground addresses three issues. It is as follows (errors in original):
1. In concluding that the Applicant did not have a well-founded fear of persecution on any of the Convention grounds, the Tribunal,
a) arrived at conclusions rejecting the Applicant’s claim of being detained and beaten in 2008 by reason of religion that was irrational, illogical, and not based on findings or inferences of fact supported on logical grounds in that:
i. the Applicant evidenced before he departed China he had gatherings of members of the “shouters” religious in his own home about every 2-3 months;
ii. the Applicant evidenced his parents and brother were warned not to practice Christianity; and
iii. the Applicant evidenced further that other Brothers and Sisters had been arrested in China.
b) failed to enunciate and apply any clear or coherent question of law for the determination of the “shouter” religious, if any, of persons in China who attend underground Church gatherings; and
c) ignored relevant material evidencing that:
i. shouters, among other minority religion groups in China, are disproportionately targeted for arbitrary arrest, prolonged detention and physical abuse; and
ii. shouters residing in China, including Fujian province, are identified as threats to the society stability of the state and are therefore targeted by authorities.
This ground is expressed generally by reference to a finding by the Tribunal that the Applicant did not have a well-founded fear of persecution on any of the Convention grounds. This misstates the Tribunal decision. The Tribunal did not make its decision on the basis of consideration of the Refugees Convention criterion. Rather, it properly confined itself to the complementary protection criterion. I have considered this ground in that context.
First, it was contended that in rejecting the Applicant’s claims of having been detained and beaten in 2008 by reason of his religion, the Tribunal was irrational, illogical and arrived at conclusions not based on findings or inferences of fact supported on logical grounds. Reference is made to the Applicant’s evidence about holding gatherings of “shouters” in his own home, his evidence that his brother and parents were warned not to practise Christianity, and his claim that other “Brothers” and “Sisters” had been arrested in China.
The material before the Court is not such as to support this ground. In particular, there is nothing in the material before the Court to establish irrationality and/or illogicality such as to constitute jurisdictional error. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135], Crennan and Bell JJ made the point that a decision may be illogical or irrational if only one conclusion is open on the evidence and the decision-maker does not come to that conclusion, if the decision to which the decision-maker came was simply not open on the evidence, or if there was no logical connection between the evidence and the inferences or conclusions drawn. However, as their Honours pointed out (at [135]), a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker.
In this case it was not irrational or illogical for the Tribunal to reject the Applicant’s claims based on the adverse credibility finding which it justified in detail and which was reasonably open to it on the material before it for the reasons which it gave. Its findings were based on findings or inferences of fact supported on logical grounds. The fact that the Tribunal did not accept the claims made by the Applicant does not in itself establish irrational or illogical reasoning.
The Tribunal considered all the claims and evidence before it, but found that the Applicant was not and had not been a Shouter or otherwise a Christian. It considered, but did not accept, his claim that he had been detained in 2008. It made those findings for detailed reasons, as set out above, having regard to matters such as the Applicant’s lack of knowledge about the “shouter” religion, the implausibility of his explanation for not including his daughter in his protection visa application, and inconsistencies in his evidence about past events. The Tribunal also had regard to the fact that the Applicant’s family had not been harmed in any respect since he departed China in 2008 for any asserted practice of Christianity. In addition, the Tribunal considered, but rejected, the Applicant’s claims to be a practising Christian based on matters such as his poor knowledge of Christianity, his failure to be baptised, his lack of knowledge about his church or a recent sermon, and lack of supporting evidence in that respect. Such findings were reasonably open to the Tribunal on the material before it for the reasons which it gave.
Ground 1(b) is that the Tribunal failed to enunciate and apply any “clear or coherent question of law” for the determination of the “shouter” religion of persons in China who attended underground church gatherings. This ground appears to be somewhat misconceived. There is no question of law identified that was supposedly not applied. It is not entirely clear what is intended. As indicated, the Tribunal considered, but rejected, the Applicant’s claims to be a practising Shouter Christian based on several factual and adverse credibility findings. The fact that there may be adverse consequences for Shouters or other persons in China who attended underground church gatherings was not something that it had to consider in circumstances where it rejected the Applicant’s claims in that respect.
Ground 1(c) is a claim that the Tribunal ignored relevant material evidencing that Shouters were disproportionately targeted for arbitrary arrest, prolonged detention and physical abuse and were identified as threats to the stability of the state and therefore targeted by the authorities. Again it was not necessary for the Tribunal to have regard to material in that respect, given that it did not accept that the Applicant was a “shouter”. Moreover, there is no evidence of any material submitted by the Applicant supporting the assertions advanced in this ground. Country information identified by the Tribunal in its decision is to the contrary. It has not been established that the Tribunal erred in ignoring relevant material in the manner contended for by the Applicant.
Ground 1 is not made out.
Ground 2 is as follows (errors in original):
2. The Tribunal did not consider, properly or at all, the distinct integer of the Applicant's claims that he feared persecution on the Convention grounds of religion belief of being persecuted to the current Chinese authorities evidenced by:
a) the police will be after the Applicant and detain him because of the family religious gatherings about which be made his previous claims fur protection;
b) the Applicant may be asked to pay the compensation of his wife's accident and as police and government officials are corrupt they take every opportunity to take money from them and it would not be possible to go to the courts about the matter; and
c) the Applicant will suffer significant harm if be returned to China due to his practice and because he would be involved in his wife's dispute with local authorities.
The Tribunal clearly considered the Applicant’s claims that he feared harm on the basis of his religion, both his claimed “shouter” activities and more generally based on the claim that he was a Christian. It considered any real or perceived involvement in gatherings of Shouters and also any imputed beliefs or engagement in Shouter practices and similarly made findings in relation to Christianity.
The subparagraphs of this ground refer to what is presumably the “distinct integer” said not to have been considered. However the Tribunal did consider the Applicant’s claims in relation to his religious practice and his family’s claimed involvement with religion and also the claims about his wife’s accident and the consequences for him. As indicated, it rejected the bases for the claims in relation to religion and did not accept that there were substantial grounds for believing there was a real risk the Applicant would suffer significant harm as a result of the compensation and other claims made against his wife. In that context, it considered the events that he said had occurred since that time. This ground is not made out.
Finally, ground 3, is as follows (errors in original):
3. The Tribunal would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. The Tribunal made an adverse credibility finding about whether the applicant's wife was affected by the car accident, but did not consider the potentially corroborative evidence that:
a) the Applicant provided a translated copy of a petition made by his spouse to the People's Court of Fuqing City. Several other untranslated documents were also provided relating to the hospital stay.
This amounts to a contention that the Tribunal refused to consider corroborative evidence after making an adverse credibility finding about whether the Applicant’s wife was affected by the car accident. In particular it is contended that the Tribunal did not consider the potentially corroborative evidence the Applicant provided, being the translated petition and several untranslated documents relating to his wife’s hospital stay.
This ground is factually misconceived. The Tribunal did not refuse or fail to consider this evidence. It considered the documents submitted by the Applicant to the Tribunal. Indeed some of its concerns about the wife’s claims were based upon those documents, in particular, the claims that were made in the petition document. Moreover, the Tribunal, as set out above, accepted that the wife had been involved in an accident, that she had been detained, that compensation had been sought from her and she had been required to pay a fine. This ground is not made out.
I note that paragraph 3 only has a subparagraph (a). The Applicant confirmed that that was the last of the grounds in his application. There is no ground 3(b) or other subsequent ground in the application.
As jurisdictional error has not been established on any of the bases contended for by the Applicant, the application should be dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 24 July 2017
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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Jurisdiction