Gai (Migration)
[2022] AATA 2708
•30 June 2022
Gai (Migration) [2022] AATA 2708 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Ms Yunyan Gai
VISA APPLICANTS: Ms Dandan Hou
Miss Zhihan HouREPRESENTATIVE: Ms Amy Lee (MARN: 0215803)
CASE NUMBER: 2015222
HOME AFFAIRS REFERENCE(S): OSF2014/079688
MEMBER:Mila Foster
DATE:30 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 115 (Remaining Relative) visas:
·Public Interest Criterion 4020 for the purposes of cl 115.223 of Schedule 2 to the Regulations
Statement made on 30 June 2022 at 6:54pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –115(Remaining Relative visa)– provided false information in connection with visa application – first named visa applicant had not provided false information about her marital status – Public Interest Criterion 4020
– they never lived together, were never in a de facto relationship nor had they ever had a boyfriend-girlfriend relationship ––decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.12, Schedule 2, cl 115.223
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 September 2020 to refuse to grant the applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named visa applicant applied for the visa on 1 April 2014 on the basis that she was the remaining relative of her sister who was her sponsor at the time. On 7 December 2018 the first named visa applicant added the second named visa applicant, her daughter, to the visa application and changed sponsors. Her mother, the review applicant, became the sponsor. The second named visa applicant was added to the visa application on the basis that she was a member of the first named visa applicant’s family unit.
The delegate refused to grant the visas on the basis that the first named visa applicant did not satisfy the requirements of cl 115.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not meet Public Interest Criterion 4020 (PIC 4020) having provided false information in connection with her visa application. Specifically, the delegate found that the first named visa applicant had stated in the visa application that she had never been married or in a de facto relationship when she was in a relationship with Ming Zhang at the time of application. The second named visa applicant was refused the visa because the first named visa applicant did not meet the primary criteria for the visa.
The review applicant appeared before the Tribunal in person on 24 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the first named visa applicant. The Tribunal was conducted with the assistance of an interpreter accredited in the English and Mandarin languages.
The review applicant was represented in relation to the review. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department of Home Affairs file relating to the visa application.[1] The Department file includes the following documents which the first named visa applicant submitted in support of the visa application:
[1] File number OSF2014/079688 (DF).
a.The first named visa applicant’s passports and birth certificate.
b.The second named visa applicant’s passports and birth certificate.
c.Vanuatu residence visas issued to the first named visa applicant and the second named visa applicant.
d.A declaration the first named visa applicant made on 6 April 2010 that she had not married as at that date.
e.A declaration notarised by the Consular Section of the Chinese Embassy in Vanuatu in which the first named visa applicant declared that she had never married as at 27 November 2018.
f.An undated statutory declaration submitted on 14 June 2019 in which the first named visa applicant stated that the second named visa applicant had been under her sole care financially, emotionally, psychologically and physically since birth.
g.A letter dated 23 March 2015 from a solicitor addressed to Mr Zhang. The solicitor stated that the first named visa applicant had instructed that he had physically and verbally threatened to take the second named visa applicant with him to China and that it was understood that he was due to travel on 25 March 2015. The letter put Mr Zhang on notice that as the child’s mother and the sole provider and custodian, the first named visa applicant had every right over the child until she reached the age of maturity. The letter stated that the child could only travel abroad with her mother or with her consent. The letter concluded that if Mr Zhang denied what was stated in the letter, court proceedings would be issued against him and he would be arrested by the police.
h.Two ‘Consent to grant an Australian visa to a child under the age of 18 years’ Form 1229) forms (completed in relation to the second named visa applicant – one completed in 2018 and the other in 2019. The form must be signed by the parent(s) or person with parental responsibility of the child for whom they give permission to migrate.
i.Letter dated 30 November 2019 from a Swim & Arts Academy in Vanuatu stating that the first named visa applicant brought the second named visa applicant to her lessons, paid for her lesson and was the only contact for the second named visa applicant.
j.Letter dated 2 December 2019 from a kindergarten stating that the first named visa applicant brought the second named visa applicant to school and collected her, no one else had permission to collect the second named visa applicant and as far as the kindergarten knew, the first named visa applicant paid the fees.
k.A letter dated 3 December 2019 from a dance trainer stating that the first named visa applicant dropped off the second named visa applicant for lessons and collected her afterwards.
Two supporting documents were presented on review. The first document was a letter from the review applicant explaining that the first named visa applicant had not provided false information about her marital status as the delegate had found. The second document issued on 22 June 2022 by the Registrar General of the Department of Civil Registration and Identity Management in Vanuatu stated that based on the registry’s information, the first named visa applicant and Mr Zhang had never been married.
The review applicant did not present as a good witness at the hearing. Her evidence was often vague and hard to elicit. It seemed that was due in part because she had some difficulty understanding the Tribunal’s questions or was not aware of certain details and hence suggested that the Tribunal ask the first named visa applicant. Nevertheless, there were no significant inconsistencies between the review applicant’s evidence and the documentary evidence and the oral evidence of the first named visa applicant. She stated that the first named visa applicant and Mr Zhang had never lived together as a couple nor been married let alone divorced. She also stated that they had never been in a de facto relationship. The Tribunal found the first named visa applicant a forthright witness. She gave her evidence in a direct and detailed manner. Her oral evidence is referred to in detail below.
The issue in this review is whether the first named visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 115.223 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Background
Based on information provided in connection with the visa application, the first named visa applicant is a 41-year-old Chinese citizen who has been residing in Vanuatu since December 2004.[2]
[2] DF, f.48.
The second named visa applicant is her 7-year-old daughter. Her daughter is a Chinese national, was born in Vanuatu and has been residing in Vanuatu with her mother since birth. The second named visa applicant’s biological father is Ming Zhang, a Chinese citizen.[3]
[3] DF, f.124
The first named visa applicant’s other family members consist of her widowed mother, the review applicant, and her sister. Her mother and sister are Chinese nationals who were granted Australian permanent residence, in 2013 and 2008 respectively. The review applicant was living with the visa applicants in Vanuatu when the second named visa applicant was added to the visa application and became their sponsor,[4] had lived in Vanuatu since 2005[5] and spent most of her time there.[6] The first named visa applicant’s sister resided in Australia.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
[4] DF, f.136.
[5] DF, f.39. The review applicant confirmed at the hearing that she had lived in Vanuatu with the first named visa applicant since 2005 (and the second named visa applicant after her birth) where she had a business, a shop. Documents presented to the Department confirm the review applicant’s residence and business in Vanuatu: DF, ff.111-109. The review applicant said that since being granted permanent residence in Australia she visited her daughter in Australia once or twice a year.
[6] DF, f.146.
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
On 29 July 2020 the Department wrote to the first named visa applicant inviting her to comment on the following:
a.In response to Question 21 on the visa application form regarding ‘Relationship status’ which the first named visa applicant lodged on 1 April 2014, she ticked the box 'Never married or been in a De facto relationship’.
b.In the second visa application form she submitted on 7 December 2018, the first named visa applicant also ticked ‘Never married or been in a De facto relationship’ in response to Question 21.
c.The Department had received information that she married Mr Zhang in Vanuatu in 2014, she divorced Mr Zhang in 2016 and she had lived with him before they married. Hence the information the first named visa applicant had provided in her visa application appeared misleading.
The first named visa applicant provided a written response dated 25 August 2020 to this invitation in which she stated:
a.Mr Zhang had just been a general acquaintance. They had never had a boyfriend-girlfriend relationship, they had never been in a de facto relationship, and they had never married so there was no divorce.
b.She met Mr Zhang in September 2013.
c.Her daughter was conceived as a result of what she referred to as a one-night stand with Mr Zhang on the day they met.
d.She and Mr Zhang did not have contact after that and went on with their lives.
e.She discovered she was pregnant with her daughter in December 2013.
f.After Mr Zhang learned that she had a child he came to see her. He wanted to develop a boyfriend-girlfriend relationship with her but she rejected him.
g.She heard that he returned to China in about March 2015. She did not have contact with him after that and did not try her best to find him until after an immigration officer asked him to sign her daughter’s’ immigration papers.
h.Mr Zhang hated her after she rejected him. And when he was contacted by the immigration officer he fabricated a lie and said they had lived together, were married and divorced.
i.She has always raise her daughter herself.
The Tribunal notes that the delegate placed significant weight on the ‘Department’s integrity checks and information in Department systems’ because the delegate regarded them as a credible source of information. The ‘integrity checks’ relate to the information put to the applicant in the invitation of 29 July 2020 and is contained on the Department file.[7]
[7] DF, ff.216, 215.
The delegate placed weight on the inconsistency between the statement the first named visa applicant made in her response of 25 August 2020 that she did not contact Mr Zhang after he returned to China in March 2015 and the Form 1229 forms and similar forms the delegate said she would have had to submit when she and the second named visa applicant applied for visitor visas to Australia which required Mr Zhang’s consent for the second named visa applicant to travel or migrate. The delegate thus concluded the first named visa applicant must have had contact with Mr Zhang.
The delegate placed weight on the fact the solicitor’s letter of 23 March 2015 was addressed to Mr Zhang at the same post office box address as the first named visa applicant’s post office box on her Vanuatu residence permit. The delegate stated that this confirmed the Department’s integrity check information that the first named visa applicant and Mr Zhang had lived together.
The delegate noted that the first named visa applicant had declared the information on the second named visa applicant’s birth certificate which listed the names of Mr Zhang’s parents. The delegate concluded that this demonstrated that the first named visa applicant had an extensive knowledge of Mr Zhang’s family and hence he was more than a general acquaintance, and the first named visa applicant’s claims that he was a one-night stand and had no further contact with him appeared false and misleading.
Having had the opportunity to discuss the above and other matters with the first named visa applicant at hearing, the Tribunal has formed a different view to the delegate.
The Tribunal does not regard the ‘integrity checks’ information to be credible either on its face or when considered in light of all the evidence. Firstly, the information is vague. According to the information the first named visa applicant and Mr Zhang lived together but the address could not be provided, the first named visa applicant and Mr Zhang married in 2014 but neither the precise date nor the marriage certificate could be provided, the first named visa applicant and Mr Zhang divorced in 2016 but neither the precise date nor the divorce certificate could be provided, the first named visa applicant and Mr Zhang had a child together but the child’s date of birth could not be provided. If it was true that the first named visa applicant and Mr Zhang had lived together, were married, had a child together while in a relationship, and later divorced the Tribunal expects that at least some of those details could have been provided. Further, the Tribunal expects that if the first named visa applicant and Mr Zhang were married and divorced that a copy of the marriage and divorce certificates could have been provided or at least a plausible explanation for why they could not be provided. Without those details, without a marriage certificate and without a divorce certificate the information ultimately amounts to no more than mere assertion. In contrast to the lack of documentary evidence of a marriage between the first named visa applicant and Mr Zhang, the first named visa applicant has now provided a letter from the Vanuatu Department of Civil Registration which states that there is no record of them marrying in Vanuatu. The Tribunal has given this document significant weight.
Further, the solicitor’s letter of 23 March 2015 is contemporaneous documentary evidence which undermines the assertion that the first named visa applicant and Mr Zhang were married between 2014 and 2016 given that it states that the first named visa applicant had had sole custody, care and control of the second named visa applicant since birth. The Tribunal gives weight to this document as well.
At the hearing the first named visa applicant detailed and clarified the nature of her contact with Mr Zhang after they met in September 2013. She stated that they did not have any contact the night after they met until about January 2014 when Mr Zhang became aware that she was pregnant. It was then that he came to see her in person to discuss the future of their child and to ask the first named visa applicant about having a boyfriend-girlfriend relationship which she refused. She stated that after she rejected Mr Zhang’s proposal in January 2014, they had contact a few times by QQ and telephone only. She said that when she gave birth she needed to fill in certain forms for the second named visa applicant so she asked Mr Zhang to come to the hospital. It was then that he provided the names of his parents. The first named visa applicant stated that after that her contact with Mr Zhang was again limited to a few QQ interactions and telephone calls. She said that communication during that time was largely in regard to obtaining a passport for the second named visa applicant. The Tribunal notes that this is consistent with the fact the second named visa applicant was issued a passport in January 2015. The first named visa applicant’s evidence about her contact with Mr Zhang was detailed and given in a forthright manner. The Tribunal found the evidence credible.
Asked why Mr Zhang threatened to take the second named visa applicant to China, the first named visa applicant replied that he did it to try to extort money from her. She said that was why she went to the solicitor and the letter was sent to Mr Zhang. The first named visa applicant said Mr Zhang had never had any interest in the second named visa applicant at all - he never did anything a father should do. He told the first named visa applicant he did not want her to contact him again about any paperwork and that she could sign anything on his behalf in relation to the second named visa applicant. The first named visa applicant confirmed as she has stated in her response of 25 August 2020 that she had no further direct contact with Mr Zhang after he left Vanuatu in March 2015. She said that as she had sole care and custody of the second named visa applicant and Mr Zhang had given her authority to sign any documentation on his behalf in relation to the second named visa applicant, that is what she did whenever she needed to get the second named visa applicant a passport and visa. She also stated that she therefore signed for Mr Zhang on the Form 1229 forms. She stated that she obtained Mr Zhang’s contact details for the forms from his cousin.
The Tribunal questioned the first named visa applicant about why she and Mr Zhang shared the same post office box. The first named visa applicant stated that it was during the few exchanges she had with Mr Zhang after her daughter was born that he asked whether he could use her post office box and she agreed because post boxes need to be paid for and she already had one for her shop. Asked why she did so if they were not in a relationship, it appeared to the Tribunal that the first named visa applicant have not give it much thought, the request seemed to have been a once off casual request which was made before Mr Zhang had threatened to take the second named visa applicant to China. Given the overall credibility of the first named visa applicant’s oral evidence, the Tribunal accepts this explanation.
The Tribunal gives weight to the written and oral evidence of the first named visa applicant and the review applicant. It gives weight to the Vanuatu Department of Civil Registration letter and the solicitor’s letter. It gives no weight to the ‘integrity check’ information. On that basis the Tribunal accepts that the first named visa applicant was never married to Mr Zhang and hence they never divorced. The Tribunal accepts that they never lived together, were never in a de facto relationship nor had they ever had a boyfriend-girlfriend relationship. The Tribunal thus accepts that at the time the visa application was made the first named visa applicant had never been married or in a de facto relationship. Hence the information she provided in the visa application and in subsequent documents and forms provided in connection with the visa application are true and correct, and do not contain false or misleading information about her marital status.
The Tribunal notes that the evidence the first named visa applicant gave at the hearing that she signed Mr Zhang’s signature on the Form 1229 forms. Having discussed this in detail with the first named visa applicant at the hearing the Tribunal is satisfied that she genuinely believed that she acted with Mr Zhang’s authority when she completed the forms and wrote his signature on those forms. The Tribunal thus finds there was no purposeful falsity, nor any element of fraud or deception on the part of the first named visa applicant. Hence, the Tribunal finds the information in the Form 1229 forms was not false or misleading.
In relation to whether the Form 1229 forms are bogus documents as defined in s 5(1) of the Act because the first named visa applicant signed Mr Zhang’s signature on them, the Tribunal finds that as the documents are forms that were completed in respect of the second named visa applicant they were not documents ‘issued’ in respect of her. The Tribunal further finds that the documents were forms that were completed and signed and hence were not counterfeit documents nor were they altered. Similarly as the first named visa applicant completed and signed the forms with Mr Zhang’s authority they were not obtained because of a false or misleading statement. The Tribunal thus finds that the Form 1229 forms are not bogus documents as defined in s 5(1).
For the above reasons the Tribunal finds that there is no evidence before it that the first named visa applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’, or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made. The first named visa applicant therefore meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). In the absence of any evidence to the contrary, the Tribunal is satisfied that the first named visa applicant and each member of the family unit has not been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) is met or does not apply.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal is satisfied as to the identity of the first named visa applicant on the basis of her passports and birth certificate. The first named visa applicant therefore meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA). In the absence of any evidence to the contrary, the Tribunal is satisfied that a visa has not been refused for this reason during the relevant period. PIC 4020(2B) is therefore met or does not apply.
Conclusions
For the reasons given above, the first named visa applicant satisfies PIC 4020 for the purposes of 115.223. The appropriate course is therefore to remit her application for the visa to the Minister to consider the remaining primary criteria for a Subclass 115 visa.
On the basis of the second named visa applicant’s birth certificate the Tribunal finds that she is the first named visa applicant’s child. She is thus a ‘member of the family unit’ of the first named visa applicant as defined in reg 1.12 of the Regulations. As the Tribunal has found that the first named applicant satisfies cl 115.223 the appropriate course is to also remit the second named visa applicant’s application to the Minister for reconsideration in relation to the remaining secondary criteria.
DECISION
The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 115 (Remaining Relative) visas:
·Public Interest Criterion 4020 for the purposes of cl 115.223 of Schedule 2 to the Regulations
Mila Foster
MemberATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…
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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Natural Justice
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Remedies
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Statutory Construction
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