Chen and Minister for Immigration and Border Protection (Migration)
[2016] AATA 620
•19 August 2016
Chen and Minister for Immigration and Border Protection (Migration) [2016] AATA 620 (19 August 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1391
Re
Ke Chen
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mrs J C Kelly, Senior Member
Date 19 August 2016 Place Sydney The Tribunal affirms the decision made by the delegate of the Minister for Immigration and Border Protection on 29 February 2016 not to exercise the power pursuant to section 501CA(4) of the Migration Act 1958 to revoke the mandatory cancellation
........................[sgd].................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation on character grounds – applicant requested revocation – decision not to revoke the visa cancellation – substantial criminal record – prison term of more than 12 months – whether the discretion should be exercised to revoke the cancellation – protection of Australian community – expectation of Australian community – applicant maintains ties with China – decision affirmed
LEGISLATION
Migration Act 1958, s 501(3A), s 501(7), s 501CA(4)
SECONDARY MATERIALS
Direction no. 65 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
19 August 2016
INTRODUCTION
On 6 February 2015, the applicant was issued with a notice by the respondent that his five year resident return BB155 visa had been cancelled under section 501(3A) of the Migration Act 1958 (the mandatory cancellation decision). The applicant lodged a request for revocation of the mandatory cancellation decision.
The applicant seeks the review of the decision made by the delegate of the Minister for Immigration and Border Protection on 29 February 2016. The delegate decided not to exercise the power pursuant to section 501CA(4) of the Migration Act 1958 (the Act) to revoke the mandatory cancellation decision.
STATUTORY CONTEXT
The mandatory cancellation provision is section 501(3A). Section 501(3A)(a)(i) provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of “paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)” and “the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory” (section 501(3A)(b)).
Relevantly, section 501(7)(c) provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.
Section 501CA(4) provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The applicant failed the character test
The applicant made representations and provided several references in support of his representations in accordance with s 501CA(4)(a). The delegate decided not to revoke the decision because the delegate found that the applicant did not pass the character test and the delegate was not satisfied that there was another reason why the original decision should be revoked.
Before the Tribunal, the applicant conceded that he failed the character test. He failed the character test because on 16 December 2014 he was convicted in the NSW District Court of the following offences:
- Deal with identity information to commit etc indictable offence (4 counts);
- Make, possess etc, equipment etc to make false documents (2 counts);
- Possess false document to obtain financial advantage (2 counts)
He was sentenced to an aggregate three year term of imprisonment with a non-parole period of 18 months.
He was also convicted of the following offences on the same occasion, but no additional sentence was imposed in respect of them:
- Possess prohibited drugs (1 count);
- Deal with identity information to commit indictable offences.
The issue in this case
It follows that the issue before the Tribunal is whether it is satisfied that there is another reason why the original decision should be revoked.
The power to revoke the mandatory cancellation of the visa is discretionary and must be carried out in accordance with any written direction under the Act (section 499(2A)). The relevant direction is Direction no. 65, “Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA”.
Direction No. 65 (“the Direction”)
Definitions appear in Annexure B to the Direction. Clause 6.1 sets out the objectives of the Direction, cl. 6.2 provides general guidance for decision-makers, and cl. 6.3 sets out the following principles “that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion … to revoke a mandatory cancellation under section 501CA”[1]:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[1] Direction no. 65, clause 6.2(3).
Part C of the Direction “identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa”.[2]
[2] Direction no. 65, clause 5.
The primary considerations are:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Other considerations that must be taken into account, where relevant, include but are not limited to:
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
The Direction sets out detailed guidance in respect of each the primary and other considerations.
THE EVIDENCE BEFORE THE TRIBUNAL
The documentary evidence before the Tribunal included the G-documents, two written statements made by the applicant in April 2016, a statement made by his brother in April 2016, a statement made by his former employer in April 2016, a statement made by his employer’s daughter in May 2016 and a psychologist’s report prepared in April 2016. He also provided a copy of his driver licence which expired on 16 November 2013 and a document from Roads & Maritime about renewing or replacing a driver licence.
Oral evidence was given by the applicant, his brother, his former employer, his former employer’s daughter, and by a psychologist.
BACKGROUND
The following findings are not contentious.
The applicant’s older brother has lived in Australia since 1989 and is an Australian citizen. He has worked in security screen businesses since 1994. He started his current business in 2007.
The applicant was born in Shanghai, China, on 15 April 1966. He was awarded an Advanced Diploma in Accounting in 1989 and then worked for the government as a broker in the Futures Exchange in Shanghai and later in sales and marketing for a construction company. In January and April 1997 he visited Australia looking for business opportunities. He was unsuccessful. In October or November of that year he returned to Australia and applied for and was granted a sub-class 457 visa. He worked at a company that made security doors and windows from then until 2002. His older brother worked at the same company. The applicant has not attempted to obtain an Australian accounting qualification because his English language ability it not good enough.
He married for the first time in 2002. The marriage lasted a year. He was granted a spouse visa on the basis of domestic violence after the Federal Court remitted the matter to the Migration Review Tribunal which then set aside the Department’s decision.
After his marriage ended, the applicant lived in shared accommodation in an apartment, then until about 2006 in a house, and then in a room above a shop. The applicant’s employment included working for about one and a half years as a kitchen hand at the TAFE cooking school in Oxford Street, as well as working for a taxi company. He has worked for five different taxi companies, undertaking various duties such as drawing up rosters, reporting breakdowns and inspections, and driving standby cabs to any cab which had broken down and staying with that vehicle until it was repaired or towed away. The applicant met his former employer when he was the manager at the first taxi company for which the applicant worked. The applicant claimed that he was employed by the taxi companies because he knew drivers he could get to work for them. However, in about 2006 or 2007 the rules changed to allow overseas students and temporary residents to drive taxis which resulted in there being more drivers than taxis.
In about 2006, the applicant began working for his former employer who then owned a smash repair business, a mechanics workshop and ran more than twenty taxis. From 2006 until 2009, the applicant stayed in a room in his former employer’s business premises. From 2006 until about the middle of 2013 the applicant worked full-time for his former employer, earning about $500 a week after tax. Later he was paid about $300 a week because his former employer wanted to reduce costs.
From 2009 the applicant moved to a share house in Burwood, paying rent of about $100 per week.
He married for the second time in 2011. Again, the marriage only lasted about a year and his wife returned to China. She had spent most of that year in China because it was more comfortable. In Australia, they lived in a share house.
Between 2009 and 2013, the applicant was meeting his brother more often for coffee and sometimes for dinner because they both lived in the Burwood area. His brother was very busy because he had established a business. They talked about many things but the applicant did not mention that he had money problems.
The applicant was arrested on 10 September 2013 and released from criminal custody directly into immigration detention on 9 March 2015. His father died in December 2013 and his mother was then placed in a nursing home.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
It is not in dispute that the following considerations are not relevant in this case: the best interests of minor children, Australia’s non-refoulement obligations, and the effect of the applicant’s removal on Australian business interests.
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction requires decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It states that: “Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community”.
The paragraph requires decision-makers to give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraphs 13.1.1 and 13.1.2 set out matters to take into account in relation to those considerations.
The applicant claimed that he got drawn in to the criminal activity for which he was imprisoned, six or nine months after meeting Mr Stephen Zhong, because the applicant was poor, and depressed because of his failed second marriage. People who had copied details of other people’s credit and Medicare cards and driver licences, would see the applicant, give him money and the information, often including photocopies of cards, which he in turn would give to Mr Zhong. Later, he would give the cards produced by Mr Zhong back to the customer. The applicant received $50 or $100 a time. He was one of many people doing that for Mr Zhong.
The applicant claimed that a Hong Kong student came to his room one night and asked to leave a locked handbag with him. Two days later, the police came to his room, unlocked the bag, and found equipment used to scan credit cards.
The criminal conduct extended over a period of about three months from June to September 2013.
The applicant stated that he was ashamed of committing those offences. He hated his time in gaol. His father in China passed away during that time, on 7 December 2013. The applicant was not able to see or speak to his father before he died. The applicant said that if his visa is returned, he will not offend again. He has nothing in China except his 88 year old mother who is in a nursing home.
The applicant stated that Mr Zhong told him that people and banks that lost money would be covered by insurance. He stated that he now realises that what he did would have hurt many ordinary people who would have suddenly found that they owed a lot of money because others had impersonated them.
The submissions made on behalf of the applicant made the following points in relation to the protection of the Australian community:
·The offences were not violent and did not involve sexual abuse;
·The harm done was economic and no victim is actually known, although they could be expected to be affronted, humiliated and financially affected depending on insurance and arrangements with financial institutions, which would certainly suffer financial loss;
·The applicant was not a principle or organiser, but a bit player, or as Madgwick J said, the applicant was a little higher than a mere conduit;
·He did not negotiate what he was paid and did not profit substantially;
·He did not seek out the opportunity;
·The offences were not one-off but were confined to a period of about three months and took place in the context of a single criminal enterprise;
·The offences were not at the lowest level of seriousness but were at the lower range of seriousness as reflected in the three year sentence with an 18 month non-parole period, the maximum sentence for such offences being 10 years;
·At the time of the offences, the applicant was 48 years old and had been in Australia for 16 years with an unremarkable if not unblemished history; he is not an habitual criminal;
·There was a confluence of circumstances including his second marriage breakdown and his reduction in pay to $300 per week;
·The applicant’s brother and former employer have offered him jobs which would alleviate his financial distress and so reduce the risk of reoffending;
·A psychologist, whose opinion should be given great weight, the pre-sentence report and the sentencing judge assessed the applicant’s risk of re-offending as low;
·The psychologist expressed the opinion that the applicant was vulnerable due to his depression and was influenced into his offending by a co-accused who preyed upon him at a time of weakness;
·There is no evidence that the applicant had the knowledge, motivation or skill to initiate such a criminal enterprise and no indication that he will become involved in any other fraudulent activity;
The sentencing Judge described the fraud scheme as “elaborate and effective”. In my view, not only would ordinary people have been hurt by the criminal enterprise in which the applicant participated, including possibly vulnerable individuals such as the elderly or disabled, but the Medicare card aspect of his criminal activity was a fraud on the Australian taxpayer and undermined the integrity of that system. In my view, taking into account all the matters put on behalf of the applicant, I find that the applicant’s criminal conduct was serious.
I take into account that the applicant’s sentence was three years when the maximum sentence for such offences was ten years. However, it is relevant that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more” (section 501(7)(c)).
I have taken into account the evidence of the applicant’s brother and former employer about the jobs they will offer him. They expressed good intentions but whether those good intentions will be realised is speculative in my opinion.
One of the principal reasons the applicant claims he got involved in the criminal activity was the fact that his former employer reduced his pay to $300 a week in 2013. His former employer told the Tribunal that in 2013 he found another worker to manage and clean at night. He acknowledged that the taxi business is having a very hard time. He said that he has reduced his drivers from 28 to 17 because of Uber and does not have drivers out at night very much. He claimed that he can pay the applicant because the applicant works very hard and knows lots of drivers. He claimed that he would employ the applicant in his old job and pay him $800, which is more than he was paying him before he reduced his pay in 2013. He also said that he has paid the applicant’s legal fees and is worried that he will be not be repaid if the applicant returns to China. He will deduct $200 a week from the applicant’s pay to repay the debt. Given the difficulties in the taxi business, I am not confident that the employment for the applicant at the nominated salary will eventuate.
The applicant’s brother has sold his factory to a developer. He claimed in his written statement that he was planning with other people to set up a franchise business for the production of security fly-screens within the next two years. He said that he will need to train people and will train the applicant if he is allowed to stay in Australia. He no longer plans to close his business and go to China if the applicant returns because of his own family circumstances.
At the hearing, the applicant’s brother said that he envisaged paying the applicant $700 to $800, probably after tax. He could only afford to give the applicant a one off sum of $5,000 if the applicant had to return to China. He said that he has to leave his business premises by March 2017. He denied that he was planning to retire and said that he planned to move to new premises. He denied that he would be just selling a business model rather than running a business. He claimed that he would have a job for the applicant. I find that the plans the applicant’s brother talked about are vague. I do not accept that there will be a job as the applicant’s brother described at the nominated salary for the applicant in the immediate future.
I find that the applicant’s future if he stayed in Australia will be uncertain in terms of employment and income. Given his past vulnerability to participating in criminal activity when he was not earning very much money, I find that there is a risk that he will reoffend if he remains in Australia. His rehabilitation has not been tested because he has not been released into the community. If he does reoffend, there will be potentially significant and irreparable financial and psychological damage caused to members of the Australian community. In making those findings, I have taken into account the evidence from a number of witnesses, including the psychologist, that the applicant is remorseful and that they do not consider that he will re-offend.
The applicant has a recent history of smoking marihuana. He has an extensive adverse driving record between 2003 and 2012. That record appears at pages 123 to 125 of the G documents. His first learner licence was issued in January 1998 and his provisional licence was issued in February 2001. The applicant explained his failure to display P plates on a number of occasions. He said that he was in such a rush to get to a broken down car he forgot to fix them or they had blown off. He thought that was serious because if his licence was suspended he could not go to work. His employer often paid the fine.
I accept that he held an unrestricted licence from 16 November 2007 which expired on 16 November 2013.
The applicant said that he knew printing false credit cards was illegal. Mr Zhong told him that if he did not use the cards it would be fine. He just introduced Mr Zhong to other people.
Counsel for the applicant asked the applicant why he would not repeat his criminal behaviour. The applicant talked about not being able to see his father because he was in prison. He now believes in God and understands a lot of things that he did not understand before. He must not break the law. When he went to prison he understood that he had done something very terrible.
I conclude from the above evidence, that the applicant had little regard for abiding by the law before he was convicted of the offences in 2014.
For the above reasons, I find that the protection of the Australian community weighs significantly against revocation of the mandatory cancellation of the applicant’s visa.
Expectations of the Australian community
The submission was made on behalf of the applicant that although not homogeneous, the preponderance of the Australian community would give the applicant a second chance when aware of all the circumstances and would consider revocation of the visa cancellation appropriate.
The applicant has been convicted of offences in Australia, as described above. I have taken into account all the circumstances as put on behalf of the applicant. The Australian community expects non-citizens to obey Australian laws while in Australia. The applicant did not. I do not accept that taking all the circumstances into account, that the Australian community would give the applicant a second chance. I find that this consideration weighs against revoking the mandatory cancellation of the applicant’s visa.
Strength, nature and duration of ties
The applicant arrived in Australia when he was 31 years of age. He was in Australia for 16 years before committing the criminal offences set out above. He was in gaol for 18 months. Counsel for the applicant submitted that the applicant had made a positive contribution to Australia by working during that time, including by paying tax. While I accept that the applicant has worked hard, in the absence of taxation records I am not satisfied that he has paid tax while working in Australia.
I do not accept that the applicant has strong ties with any Australian citizen or permanent resident or person who has an indefinite right to remain in Australia, including his brother and his former employer, both of whom are Australian citizens, this is despite the fact that the applicant has resided in Australia for 19 years. He has two failed marriages and no children.
The applicant worked with his brother for a company for a few years after he arrived in Australia but had little to do with him from then until about 2009 when they saw each other more frequently. The applicant’s brother did not assist him financially at the time of his first divorce in 2003 and will provide a one-off payment of $5,000 if the applicant returns to China. The applicant’s brother did not know of the applicant’s arrest until contacted by the applicant’s lawyer. He has visited the applicant while he was in gaol and in immigration detention.
The applicant said that he was too ashamed to tell either his brother or former employer about his financial difficulties in 2013. His brother said that the applicant was reluctant to talk about what he was doing and they mainly talked about their parents in China. His brother’s explanation for not being able to give the applicant more financial support if he returned to China was unpersuasive. He said that his daughter was about to get married and have a baby and needs his support. He also said during cross-examination that his daughter and son-in-law have their own jobs and income and are not married and there is no baby due. His evidence was inconsistent.
I accept that the applicant’s brother feels more responsible for his younger brother, the applicant, since their father died in December 2013. I do not accept that they have a close relationship.
The applicant worked for his former employer from 2006 to 2013. The applicant’s former employer reduced the applicant’s wage in 2013 and replaced him with another worker with the consequence that the applicant committed the offences for which he was convicted. That action does not indicate a strong personal or social relationship between the two men, although the former employer did write in his letter to the sentencing judge dated 18 July 2014 that he felt sorry for the applicant “as one of the reasons why he committed the fraud was because I did not pay him enough for his hard work”. The applicant’s former employer has apparently paid the applicant’s legal fees and wishes to ensure the applicant remains in Australia and repays the debt. The former employer has visited the applicant while he was in gaol and in immigration detention. The former employer’s relationship with the applicant is a business relationship rather than a social relationship.
I have taken into account the evidence of the daughter of the applicant’s former employer and the applicant’s sister-in-law. Their evidence does not persuade me that either has a strong tie with the applicant.
I have also taken into account the evidence of the employee of the applicant’s brother who provided a written statement which forms part of the G documents. It was directed to the possibility that the applicant’s brother would return to China with the applicant. The applicant’s brother had decided not to do that by the time of the Tribunal hearing.
This consideration slightly favours revocation.
Extent of impediments if returned to China
The applicant, his brother, his sister-in-law, his former employer, his former employer’s daughter, all gave evidence to the effect that the applicant would face difficulties if he returned to China after living in Australia for so long. In summary, the difficulties were that his only relative is his elderly mother who is in a nursing home, that he would have nowhere to live because his family home is no longer available, and he will not be able to get a job because he is old and people of his age in China have retired. He is not entitled to any pension there.
The applicant was born in China and lived there until he was 31 years of age. He speaks the language. Although he has been in Australia for 19 years, his English language ability is limited. In Australia, he has lived and worked in a Chinese milieu.
The applicant has visited China on 11 occasions since arriving in Australia in November 1997. All those visits took place from 2007 onwards. He visited China twice in each of 2011, 2012 and 2013. In 2013 he visited China from 29 January to 18 March and from 20 April to 25 April. That chronology leads to the conclusion that the applicant’s money troubles arose very quickly.
The applicant’s evidence was that when he was in China he stayed in a motel which was paid for by a female friend who was his neighbour when he was growing up. She is a successful businesswoman who resides in Hong Kong but spends much of her time in Shanghai. He also said that in accordance with Chinese tradition, he was invited to have meals with friends when he visited. He said that that tradition does not apply to people returning to live there. He also ate meals with his parents.
During cross-examination, the applicant sought to downplay visiting friends in China, saying that he mostly visited his parents. He said that his friend would not support him if he went back to China but helped him only because he had helped her when she visited Australia in 2009 and 2011. He emphasised that in China, people his age are retired and he knows that a lot of workers in China have been laid off. He did not think he could study in China. He thought things had changed from when he had worked there.
The applicant’s brother gave evidence that their relatives are not in Shanghai. His cousins are mostly in Fujian. He knew one was a professor and another was an engineer. He had not been in contact with the engineer since 2008. He was in contact with the professor in 2014. He downplayed his business connections in China although he said that he sometimes goes to China for business. He said that his business connections cannot give his brother a job. He said that only locals gets jobs and it was impossible for someone in Shanghai to get a job.
I accept that the applicant will face some initial difficulties if he returns to China. However, I do not accept that his prospects are as dismal as was suggested by him, his brother and former employer. I find that their evidence about this matter was exaggerated to assist the applicant’s case to have the cancellation of his visa revoked. I find that the applicant does have friends in China, including the successful business woman who paid for his motel stays in China. That he has been able to live and find work in Australia for 16 years, without much assistance from anyone and without speaking English to any extent, indicates his capacity to find work and live in the country in which he spent the first 31 years of his life, speaks the language, and has friends.
This consideration slightly favours revocation of the visa cancellation.
CONCLUSION
For the above reasons, I find that the considerations favouring non-revocation of the mandatory cancellation of the applicant’s visa strongly outweigh the considerations in favour of revocation.
The decision made by the delegate of the Minister for Immigration and Border Protection on 29 February 2016 not to exercise the power pursuant to section 501CA(4) of the Migration Act 1958 to revoke the mandatory cancellation decision is affirmed.
I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
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Associate
Dated 19 August 2016
Date(s) of hearing 9 May and 10 May 2016 Counsel for the Applicant Mr L Karp Solicitors for the Applicant Mr C Kaixin, Mack CHen Migration Services Solicitors for the Respondent Ms P Blackadder, Sparke Helmore
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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Procedural Fairness
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Statutory Construction
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Natural Justice
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Remedies
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