CCD15 v Minister for Immigration
[2017] FCCA 1883
•10 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCD15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1883 |
| Catchwords: MIGRATION – Application for review of a decision of the Tribunal – where Tribunal found the Applicant was not credible – where Applicant claims Tribunal failed to make an obvious enquiry about a critical fact – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa),425. |
| Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51. |
| Applicant: | CCD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2295 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 15 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondents: | Ms Latif |
| 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 $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2295 of 2015
| CCD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings involve an application for judicial review of a decision of the Refugee Review Tribunal, now the Migration and Review Division of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 September 2015 which affirmed a decision of a delegate of the Minister (‘the Delegate’) not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The Applicant relied upon an amended application filed 31 January 2017; an affidavit sworn/affirmed by the Applicant on 12 October 2015; and an affidavit sworn/affirmed on 31 January 2017 by Mylvaganam Wilmaleswaran, lawyer for the Applicant, to which is annexed a transcript of the Tribunal hearings on 30 April 2015 and on 28 May 2015. The Applicant also relied upon submissions filed 31 January 2017.
The Applicant seeks that the decision of the Tribunal be quashed; that a writ of mandamus issue directed to the Tribunal or Minister; and that an injunction be ordered restraining the Minister, by himself or his Department, officers, delegates or agents, from relying upon the recommendation of the Tribunal. The Applicant also seeks costs.
The First Respondent seeks the application filed on 13 October 2015 be dismissed and that the Applicant pay the costs of the First Respondent.
The First Respondent relied upon an amended response dated 25 July 2016; the First Respondent’s contentions of fact and law filed 18 May 2016 and further contentions of fact and law filed 3 March 2017 (which respond to the amended grounds of the application). The First Respondent filed a Court Book and its contents are evidence in the proceedings.
The grounds of the amended application are as follows:-
“1. The Tribunal's refusal to contact the Member of Parliament, Sivagnanam Shritharan, or the Australian High Commission in Colombo to verify the existence of the LTTE satellite communications centre:
(a) was an unreasonable exercise of its discretion; or alternatively,
(b) constituted a failure to provide a hearing in the manner required by section 425 of the Migration Act.
2. The Tribunal's finding at [89] that ‘the existence of the satellite communications centre could not be readily ascertained by contacting MP Sivagnanam Shritaran due to my concerns about the Applicant's credibility’ was irrational.”
Background
The Applicant is a citizen of Sri Lanka. He is a Tamil Hindu from Kilinochchi, a province in the north of Sri Lanka. The Applicant legally departed Sri Lanka for Malaysia, where he remained between January 2011 and March 2012, before travelling to Indonesia. The Applicant remained in Indonesia for four months. He departed Indonesia illegally by boat, arriving (having been intercepted by Australian authorities) at Christmas Island on 22 July 2012.
On 26 September 2012, the Applicant was interviewed by Australian immigration officials and made claims for asylum. During his “Irregular Maritime Arrival Entry Interview”, the Applicant made no claim to have worked as a satellite operator for the Liberation Tigers of Tamil Eelam (‘LTTE’).
On 15 January 2013, the Minister for Immigration and Citizenship (‘the Minister’) allowed the Applicant to lodge a visa application.
On 5 February 2013, with the assistance of a migration agent, the Applicant lodged the visa application. In the provision of his employment details, the Applicant claimed to have been employed relevantly from December 2006 to June 2008 in construction in Sri Lanka with his position description being ‘electrical wiring’; from June 2008 to January 2009 in telecommunications as an ‘Admin/Cashier’ in Vani and Vaani Firm Jeeva, Kilinochchi, Sri Lanka; from January 2009 to January 2011 the Applicant was not employed and from January 2011 to March 2012 employed in construction in Malaysia with his position description being ‘electrical wiring’. The Applicant provided a statement in support of his visa application and made no claim to have worked as a telecommunications operator for the LTTE.
On 27 August 2013, the Delegate interviewed the Applicant in connection with his visa application. On 30 August 2013, the Applicant was notified that the Delegate had refused the visa application and given reasons for the decision. The Delegate found the Applicant to have been vague and evasive during the interview, and did not accept the Applicant was suspected of having any connection with the LTTE or was of any adverse interest to the Sri Lankan authorities. The Delegate consequently did not consider the Applicant was entitled to the visa claimed.
On 6 September 2013, the Applicant applied to the Tribunal for merits review of the Delegate's decision. On 10 February 2015, the Applicant's agent filed submissions and other material with the Tribunal. This included a letter dated 10 December 2014, purporting to be a letter from a Sri Lankan Member of Parliament (‘MP’). The MP's letter relevantly states:-
“When the Vanni region was control of LTTE he [the Applicant] was working in one of the telecommunication centre which was controlled by the LTTE”
On 30 April 2015 and at a further hearing on 28 May 2015, the Applicant appeared before the Tribunal with the assistance of an interpreter in the Tamil and English languages, and his migration agent. On 21 May 2015, after the first Tribunal hearing but before the further hearing, the Applicant's agent filed further submissions with the Tribunal. The agent sought the Tribunal contact the MP referred to in paragraph 12 herein. The agent said:-
“It is accepted that generally forged documents can be obtained in SL for a fee. But however this letter is from a Parliamentarian whose phone contact details are given and as requested by the applicant at the hearing, he may please be contact to verify the authenticity of his letter and clarification of doubts.”
On 4 June 2015, after the further Tribunal hearing, the Applicant's agent filed further submissions. The agent wrote relevantly as follows:-
“…We are instructed by our client that truly there existed a satellite telecommunication centre of the LTTE at the place specified by the Applicant, in Kilinochchi, although information or details regarding it are not available on the internet and websites. We too have searched in the internet.
We are instructed that this centre was popularly used by the people in Kilinochchi and any resident of Kilinochchi (past or present) will vouch for it. Even the Tamil employees of the NGOs and INGOs ... frequently use it whenever they have problems with their office communication systems.
The applicant respectfully and earnestly requests that inquiries regarding the existence, during the relevant period, be made through the Australian High Commission in Colombo. In particular, inquiries may please be made from the Hon. Member of Parliament, Mr S. Shritharan whose letter has already been submitted…”
The Applicant’s claims
The Applicant claimed a well-founded fear of persecution because of his actual or imputed political opinion, namely an imputed association with the LTTE and/or a pro-LTTE opinion, as well as his Tamil ethnicity and his membership of a particular social group, being young men of Tamil ethnicity from a formerly LTTE controlled area, and his membership of the particular social group of returning failed asylum seekers who have left Sri Lanka illegally and are suspected of having links with the LTTE.
Specifically, the Applicant claimed, as set out in the First Respondent’s contentions of fact and law (‘the contentions’) in paragraphs 20 to 21, to fear persecution by the Sri Lankan authorities. In his entry interview, the Applicant claimed that in 2009 he was “in Vanni camp” and interrogated approximately three times, questioned and beaten. When the Applicant left the army camp, members of the Criminal Investigation Department (‘CID’) came to see his family, but he was living with his Aunt in Vavuniya. He claimed also to have worked for the LTTE as a bookkeeper for about six months.
As further accurately stated by the First Respondent in the contentions, in a statement accompanying his visa application, the Applicant claimed:-
a)before he came to Australia, he was working in electrical wiring;
b)in 2009, he was living with his family in the Ramanathan Refugee Camp in Vavuniya. He claimed he was arrested and interrogated by CID officers three times over the next two months, the interrogations were directed at establishing his connection with the LTTE, the periods of detention described were short;
c)after being released from the refugee camp, he was spotted by the CID in Vavuniya town. He was taken to the CID's office, but released to his father about 40 minutes later;
d)in July 2010, two CID officers went to his family home asking about the Applicant. The Applicant came to the realisation the CID would not leave him alone and engaged an agent to get him out of Sri Lanka.
Relevant to the amended application, the Applicant was interviewed by the Delegate in connection with his visa application. During the interview he claimed:-
“that he worked as a payed (sic) worker for the LTTE as a book-keeper for a Telecommunication Centre in Kilinochchi for six months. ... I put to the applicant that everyone who at the time lived in Vanni area which was LTTE controlled territory, worked for the LTTE and that the Sri Lankan authorities were very well aware of that, however that does not mean that they were members of the LTTE. The Applicant appeared to agree with my statement and also added that his father worked for them as an agricultural expert for improvement of agriculture in their area.”
Tribunal decision
The Tribunal accepted the Applicant was a Sri Lankan Tamil Hindu born in Jaffna, with family living in Kilinochchi. The Tribunal also accepted the Applicant's village was controlled by the LTTE during the civil war and that the Applicant was in a camp for Internally Displaced Persons (‘IDP’) immediately after the civil war.
The Tribunal was mindful of those matters required to be taken into account when assessing an Applicant’s credibility as set out in paragraph 67 of the Statement of Decision and Reasons (‘the Decision Record’) but did not accept the Applicant was a witness of truth, and was satisfied the Applicant had embellished and created his claims of being harmed after the civil war ended in 2009, in order to enhance his “claim to the visa sought”.[1] The Tribunal went on to make findings about each of the Applicant's claims for protection.
[1] Decision Record dated 25 September 2015 at paragraph 72.
The Tribunal acknowledged the letter from the MP, Mr Shritharan, and accurately summarised its contents. The Tribunal also summarised the Applicant's claim to have been a satellite operator for Vannian Telecom in Kilinochchi as put at the Tribunal hearings.
The Tribunal acknowledged the Applicant's request that inquiries be made of the Australian High Commission in Colombo and the Sri Lankan MP.
On the basis of independent country information the Tribunal found:-
“those suspected of being LTTE workers or supporters were taken to detention camps and arrested and had he worked for the LTTE, as claimed, he and his family would have been taken to a detention camp”.
As to the Applicant’s claim to have been a satellite operator, the Tribunal rejected this claim, saying in its Decision Record relevantly the following:-
“78. …at two Tribunal hearings, the applicant claimed that he worked as a satellite operator for Vanni [Varni] Telecom, which was owned by the LTTE. He told the Department he worked with a company Varni in Kilinochchi in communications as an administration cashier. When put to him that in his PVA he did not claim that he was a satellite operator, he said that ‘even though when they beat me I did not tell them the truth’. I do not accept as plausible that if the applicant worked as a satellite operator employed by the LTTE, that he did not mention this occupation in his PVA, especially as the applicant claims that the consequences for satellite operators who worked for the LTTE forms the basis of his claims to fear serious and significant harm, as an LTTE worker, if he returned to Sri Lanka.
79. Further he claims that this satellite communications centre, under the command of Arunan who was killed during air strikes in March 2009, was an LTTE satellite telecommunication centre popularly used by the people in Kilinochchi. The Tamil employees of NGOs and MON (such as the Save the Children Fund, World Vision, ICRC etc.) also used it whenever they had problems with their office communication systems. The applicant's advisor submits that there is no information available about this centre, the applicant stated that it was highly secretive and his position was to monitor calls being made. The UNHCR stated in its July 2008 to December 2008 report:-
By September [2008], Kilinochchi was within the Army’s shelling range, prompting the government to direct UN and non-governmental organisations (INGO) to relocate their international staff south to Vavuniya.
80. I am of the view that it is implausible that a satellite centre as described by the applicant, that was popularly used by Kilinochchi residents and Tamil employees of NGOs, where they operated the satellite equipment which was 'hidden from public view' would not have been referred to in any of the extensive information available on the internet and websites about the LTTE operations in 2008/2009. I am of the view that were this centre in existence some mention would have been made in the independent evidence such as the UNHCR reports that provided extensive information about operations on the ground, reports from Sri Lankan government sources on the internet and US State Department Reports, especially as it was claimed that this centre was utilised by NGOs.
81. The applicant's evidence about how long this satellite operation remained operative in Kilinochchi was also inconsistent. Initially at T1 hearing he said that he worked there until February 2009, but at T2 hearing he said that the centre remained operative until September/October 2008. The independent evidence before me is that on 1 January 2009 the LTTE vacated Kilinochchi. The Sri Lankan Army (SLA) had conducted an offensive through the months of November and December 2008 during which three attempts were made to capture the town during the month of December. On 8 October 2008 it was reported by Tamil Guardian that large numbers of civilians were fleeing Kilinochchi in the face of more air force attacks. Although Kilinochchi was the centre of the LTTE administration, most offices had fled the town along with the civilians as the infrastructure came under attack.
82. Additionally the applicant said that he was employed by the LTTE, as a satellite operator until April 2009; His evidence, as to where the satellite operations were moved after dismantling in Kilinochchi was also inconsistent. At T1 hearing the applicant said that they moved to Mullivaika in April 2009, then moved slowly to Redpana, Vishvamadu where they operated again for 1 to 1.5 months until mid-June 2009. They then went to Puthukudiyiruppu and were there for 1 month to mid-July 2009. The applicant then changed his evidence and said he went to Mullivaika in Apri1 2009 after he had been to Vishvamadu. Vanni Telecom stopped its service after moving to Redpana. He then changed his evidence again and said the service was stopped in February 2009. He then said Kilinochchi was captured in 2008, it was about September or October 2008. They went to Redpana at Vishvamadu and got to Mullivaika in April 2009. When put to him at T2 hearing that at T1 hearing he had said that they had moved to Mullivaika in April 2009, then moved slowly to Redpana, Vishvamadu for 1 to 1 ½ months until mid June and then went to Puthukudiyiruppu where they operated for 1 month to mid-July, he said that was not correct, the war ended in May 2009. Kilinochchi was captured in September 2008, and they moved to Redpana and from February 2009 they provided a service to the community in Redpana.
83. I put to the applicant that he had provided a number of inconsistent versions about working for Vanni Telecom. I said that the independent evidence before me is that on 1 January 2009 the LTTE vacated Kilinochchi. The LTTE Satellite Communications centre at Puthukudiyiruppu was captured on 27th February 2009. An underground terrorist satellite camp was captured by the Sri Lankan authorities, in Kilinochchi, on 24 January 2009. He responded that there was another satellite communication wing [of the LTTE], that had its’ own satellite operations. I reject this claim. I am of the view, as stated above, that had Kilinochchi had 2 working satellite centres it would be known to independent sources. I accept the evidence before me that the LTTE Satellite Communication Centre at Puthukudiyiruppu was captured on 27th February 2009. Therefore I reject the applicant's claim that it was moved from Kilinochchi and remained operative in July 2009.
84. In light of the applicant's inconsistent evidence about his employment with Vanni Telecom, the evidence outlining dates and places of the capture of LTTE communication locations, and the lack of any evidence regarding Vanni Telecom as described by the applicant, I reject his claim that there was another satellite communication wing that he worked for where his cousin/relative had arranged his employment. I am of the view that it is a creation made in order to obtain the visa sought.
85. I have considered the applicant's request that I contact the Australian High Commission in Colombo. DFAT provides reports that are country specific and I rely on those reports.
86. On the evidence before me I am satisfied that the applicant is not a witness of truth and he has created his claims in order to obtain the visas sought.
87. The applicant has claimed that since his arrival in Australia the authorities have gone to his home, arrested his father, harmed him beat in (sic) him and his father has complained to the Human Rights Commission. I place no weight on the letter from the Human Rights Commission, it provides no information about the complaint that was registered. I place no weight on the copy letter to the Human Rights Commission by the applicant's father in light of my findings that the applicant is not a witness of truth and has created his claims in order to obtain the visas sought. I am of the view that the letter provided by the applicant’s father is an attempt by the applicant to assist him to obtain the visa sought.
88. The applicant provided a letter from a Member of Parliament, Sivagnanam Shritharan. The independent evidence before me indicates that fraudulent documents are at times used by applicants from Sri Lanka and that they are easily available. Further the information provided in this letter contradicts the applicant's evidence as it stated the applicant “was working in one of the telecommunication centre (sic) is controlled by the LTTE. As at the end of the war he moved to the welfare centre in Vavuniya". When put to the applicant that this letter contradicted his own evidence as he did not advised the Tribunal that he worked in the welfare centre after working in the telecommunication centre, he said: “we resettled to our own place”. His advisor explained that this letter refers to the refugee camp where the family lived and his reference to the applicant encountering inquiries and fears of torture is a reference to the CID coming to the applicant's house in July 2010. The letter does not make any mention of the CID coming to the applicant's house in July 2010 and therefore the advisor's explanation is rejected. As I do not accept the applicant is a witness of truth, and as fraudulent documents are easily obtainable, I place no weight on this letter.
89. I have considered the applicant's request to contact Member of Parliament, Sivagnanam Shritharan. I am not satisfied that the existence of the satellite communications centre can be readily ascertained by contacting MP Sivagnanam Shritharan due to my concerns about the applicant's credibility and the potential delays in waiting for a response from Mr Shritharan’s office.
90. On the evidence before me, as discussed above, and my findings that the applicant is not a witness of truth, I reject the applicant’s claim that he was a satellite operator employed by the LTTE for Vanni [Vanniam] Telecom, that the CID detained him on a number of occasions whilst he resided at Chetikulam Ramanathan Refugee Camp, that the CID continued to be interested in him after he and his family left the refugee camp in November/December after their aunt made an application for them to stay with her at Thonikil. I also do not accept that his father operated as head of the village for the (sic) farming, distributing benefits to all farmers during the war or that his father continues to be the head of the village. I also do not accept that since his arrival in Australia the authorities have gone to his house; arrested his father, beat him (sic) and harmed him. I do not accept that the applicant has had an adverse LTTE opinion imputed to him or that he is more than likely to be on a 'wanted list'.
91. I have considered the claims of the applicant individually and cumulatively as to his circumstances prior to leaving Sri Lanka. For the above reasons, I find that the applicant faced no serious harm in the past.”
The Tribunal concluded the Applicant did not have a well-founded fear of persecution for any Convention reason, now or in the reasonably foreseeable future if he returns to Sri Lanka and further that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm in terms of s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
Consideration
Ground One
A Tribunal may make a jurisdictional error if it fails to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained.”[2] Here, as submitted by the First Respondent, the Tribunal was able to determine the claim on the basis of the material before it. That material included the Applicant's own evidence, which the Tribunal considered lacked credibility together with country information which the Tribunal found to be extensive and specific. The Tribunal considered the Applicant's request that it contact the Australian High Commission, but by reference to the DFAT reports which were country specific, declined the invitation.
[2] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 25.
The Tribunal also considered the Applicant's request that it contact the MP, but found the MP's account of the Applicant's circumstances to be inconsistent with the Applicant's own claims in a material way. The Tribunal was concerned that the MP's letter was a fraudulent document and was not satisfied the MP was a source from which the existence of the satellite centre could be “readily ascertained”. The Tribunal gave “genuine consideration” to the request by the Applicant to obtain oral evidence.[3] As submitted by the First Respondent, the Tribunal's exercise of discretion had evident and intelligible justification: there was nothing to suggest direct contact using a contact number provided in a document the Tribunal considered could be fraudulent would yield any useful result.
[3] Minister for Immigration and Multicultural Affairs v Maltsin [2005] FCAFC 118, 37-38.
The Tribunal was entitled to give the MP's letter little weight and to factor that into the assessment of the request to obtain oral evidence.[4]
[4] Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51, 24 per North and Lander JJ, 35 per Katzmann J
Ground Two
The Tribunal's election to proceed to decision without conducting an enquiry or obtaining oral evidence does not amount to a breach of s.425 of the Act. The material before the Court demonstrates the Applicant was given a meaningful opportunity to present evidence and argument in support of his claims. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 at [12]:-
“It was contended that this passage shows that the Tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.”
Ground Three
This ground refers to the section of the Decision Record extracted above and in particular paragraphs 88 and 89. The further contentions of fact and law of the First Respondent provide a complete answer to this ground and I adopt them here:-
“23. Jurisdictional error may be demonstrated where the decision-maker makes a finding of jurisdictional fact that no rational or logical decision-maker could have reached: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16; (SZMDS) at [130] per Crennan and Bell JJ. A finding of illogicality should not be made lightly; error is only made out where satisfaction of a jurisdictional fact is reached on an illogical or irrational basis or amounts to an illogical inference of fact: SZMDS at [38], [40] per Gummow ACJ and Kiefel J.
24. At [89] the Tribunal gave reasons for not attempting to obtain oral evidence from the MP: it was not satisfied the existence of the satellite communications centre could be "readily ascertained" from the MP. That finding must be understood in the context of its reasons at [88], where the Tribunal found the MP's letter was inconsistent with the Applicant's claims and gave the letter "no weight" given its assessment of the Applicant's veracity and country information indicating fraudulent documents are easily obtained. Furthermore, that the satellite operations described by the Applicant were not documented in country information the Tribunal found "extensive" was factored into the Tribunal's assessment of the claim. For these reasons…the Tribunal's assessment at [89] to refuse to obtain oral evidence was open to it and its election to do so was logical and supported by probative material.”
No jurisdictional error attends the decision of the Tribunal. The application shall be dismissed with costs following that event.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 10 August 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
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