Khaja v Minister for Immigration
[2018] FCCA 2971
•24 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAJA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2971 |
| Catchwords: PRACTICE AND PROCEDURE – Application for reinstatement of proceeding –matters to be considered on the hearing of a reinstatement application – applicants failed to provide a reasonable excuse for absence at hearing – applicants’ prospects of success in substantive proceeding poor – application for reinstatement refused. |
| Legislation: Federal Circuit Court Rules2001, rr.13.03C(1)(c), 16.05(2)(a) |
| Cases cited: Attorney-General (NSW)v Quin (1990) 170 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Avery (No 2) v Public Service Appeals Board [1973] 2 NZLR 86 Burns v Grigg [1967] VR 871 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Craig v State of South Australia (1995) 184 CLR 163 Gallo v Dawson [1990] HCA 30 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 Jackamarra v Krakouer (1998) 195 CLR 516 Jess v Scott (1986) 12 FCR 187 Kirk & Anor v Industrial Court of New South Wales & Anor (2010) 239 CLR 531 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Mitchelson v Mitchelson (1979) 37 FLR 289 MZAKQ v Minister for Immigration and Broder Protection [2016] FCA 1392 MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 Ratnam v Cumarasamy [1964] 3 All ER 933 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 Vilenius v Heinegar (1962) 108 CLR 671 Wu v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 294 Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 |
| First Applicant: | RAZIUDDIN SABRI KHAJA |
| Second Applicant: | RAYEESA BEGUM |
| Third Applicant: | ALIUDDIN SABRI KHAJA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2874 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 7 September 2018 |
| Date of Last Submission: | 7 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2018 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Second Applicant: | No appearance |
| Solicitors for the Second Applicant: | None |
| Third Applicant: | No appearance |
| Solicitors for the Third Applicant: | None |
| Counsel for the First Respondent: | Ms Campbell |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application in a case filed on 8 August 2018 is dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $3 737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2874 of 2015
| RAZIUDDIN SABRI KHAJA |
First Applicant
And
| RAYEESA BEGUM |
Second Applicant
And
| ALIUDDIN SABRI KHAJA |
Third Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 7 August 2018 at or about 2:15pm the applicant’s application for judicial review was dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules (“rules”) on the basis that the applicant did not attend at the hearing. At 7:52pm on 8 August 2018 the applicants applied to “re-open” this proceeding (that was the gravamen of his application in a case) and give them “hearing time”. The first applicant said in evidence to support the reinstatement application that he attended at the wrong court on 7 August 2018.
The minister opposed the reinstatement application, contending that no useful purpose would be served in reinstating the proceeding as the applicants do not possess arguable prospects of success on the substantive application. The minister urged me to dismiss the reinstatement application and order costs against the applicant.
Synopsis
The reasons that follow I am of the view this application for reinstatement must be dismissed as no useful purpose would be served in granting it as the application for judicial review is without merit.
Matters to be considered on the hearing of reinstatement application
On behalf of the minister, Ms Campbell of counsel advanced a collection of propositions applicable to the exercise of the discretionary power to reinstate a proceeding. They may be synthesised in the manner set out below.
First, no automatic right of reinstatement exists. Any order for the reinstatement of the proceeding involves the exercise of discretion, as the High Court held in Gallo v Dawson[1] and such discretion is conferred for the sole purpose of enabling the court to do justice between the parties. That proposition is heavily laden with authority including Hughes v National Trustees Executors and Agency Co of Australasia Ltd,[2] Avery (No 2) v Public Service Appeals Board,[3] Jess v Scott,[4] Burns v Grigg,[5] Mitchelson v Mitchelson,[6] Vilenius v Heinegar[7] and Ratnam v Cumarasamy.[8]
[1] [1990] HCA 30
[2] [1978] VR 257
[3] [1973] 2 NZLR 86
[4] (1986) 12 FCR 187
[5] [1967] VR 871
[6] (1979) 37 FLR 289
[7] (1962) 108 CLR 671
[8] [1964] 3 All ER 933
Second, inherent in the conferral of a discretionary power is an acknowledgement that some applications for the exercise of that power may be refused. The High Court’s decision in Jackamarra v Krakouer[9] stands for that proposition.
[9] (1998) 195 CLR 516
Third, in any consideration of whether the discretion should be exercised in favour of an applicant, at least one relevant consideration is the scarcity of court resources, a point made by Logan J in MZAKQ v Ministerfor Immigration and Broder Protection.[10]
[10] [2016] FCA 1392
Fourth, when a court assesses whether to exercise the discretion, it weighs up whether the discretion should be exercised in favour of an applicant, having regard to whether or not –
a)the party applying has given a reasonable excuse for his or her absence at the hearing when the proceeding was dismissed;
b)the respondent to the reinstatement application would suffer prejudice by a reinstatement order that could not be cured by adjournment, an order for costs or other relief within the court’s power to grant; and
c)the applicant has reasonably arguable prospects to obtain the relief he or she seeks if the proceeding is reinstated.
For the reasons that follow, in my judgment the applicants in this application for reinstatement failed for two reasons. First, the first applicant did not provide a reasonable excuse for the applicants’ absence on 7 August 2018. Next, the applicants’ prospects of success to obtain orders for the issue of constitutional writs on the basis of the Administrative Appeals Tribunal fell into jurisdictional error were poor.
In essence, the first applicant said he failed to appear before me on 7 August 2018 because, so he said, the court list of cases in this court on that day showed his case listed before another judge of this court so he sat outside of that other judge’s court on the day and at the time he should have been before me. He produced a photocopy of the daily list of cases for 7 August 2018 and endeavour to argue that his case was listed before her Honour Judge Mercuri. That was wrong. His case was properly listed before me in court 2K on level two at 2:15pm on 7 August 2018. If he went to the wrong court, that was his error. Moreover, in accordance with my invariable practice, if a litigant is not in court on the date and at the time his or her case is listed, I direct my associate call that litigant outside my court three times. That was done in this case. Such a call can be heard throughout the court building as the call is made at shouting pitch, in accordance with my direction. I find it impossible to accept that the litigant, here the first applicant, did not hear his case being called in court 2K on level two at 2:15pm on 7 August 2018. In my view, the first applicant’s reason for non-attendance should be rejected.
So far as prejudice was concerned, the minister did not seriously contended that the minister was prejudiced by this application.
That left the applicants’ prospects of success. In my view, they were poor. As was held in MZKAJ v Ministerfor Immigration and Multicultural and Indigenous Affairs,[11] unless an applicant has reasonably arguable prospects of success in the substantive application there is no purpose in making an order for the reinstatement of this proceeding.
[11] [2005] FCA 1066
Relevant factual setting
The applicants sought judicial review of a decision of the Administrative Appeals Tribunal made on 9 December 2015 pursuant to which the tribunal affirmed a decision of the delegate of the minister not to grant the applicants student (temporary) (class TU) visas.
The applicants applied to this court on 29 December 2015. They were ordered to file any amended application by 13 July 2016. They failed to comply with that order. In their application made 29 December 2015 the applicants advanced 20 separate paragraphs, allegedly “grounds”, by which they sought to invoke the jurisdiction of this court to review the tribunal’s decision. Many of the grounds were discursive and narrative in nature. None set out propositions of fact or law by which it was possible to distil whether and if so on what basis the tribunal fell into jurisdictional error along the lines canvassed in Craig v State of South Australia[12] or Minister for Immigration and Multicultural Affairs v Yusuf.[13]
[12] (1995) 184 CLR 163
[13] (2001) 206 CLR 323
In the passages below I have addressed each of the paragraphs, described as “grounds of application”, doing the best that I could to understand them to represent the applicants’ contentions that somehow the tribunal fell into jurisdictional error.
Before turning to them in detail, on the hearing of the application before me the first applicant appeared in person. As is my usual practice, I invited him to tell me in his own words what he said the tribunal did wrong in this case. He said the following, with errors in the original –
THE WITNESS: When the tribunal have investigated the funds, the funds has been taken out one day before that what the tribunal says. And they said to me my – the one which I said before, that my mother is a housewife and she doesn’t know about the banking work and this and that. So my – I don’t have my father – is also expire in 2014, I give that certificate of my father as well. So my – it’s my neighbours who help her to take to the bank and do this processing and everything. I don’t know what’s wrong on there. So when the investigation comes it says the funds not genuine and there was no funds ..... one day it was taken out. So I asked to my mum, the mum says, “I don’t have what that one”, the neighbours, I went with them and they have done whatever they want – they have done, I don’t know exactly what is there. I said leave it. I will find out what is going on here because they will have the copy here, what’s wrong with that one. So that’s why that what they said to the tribunal they said to me.
HIS HONOUR: Anything else you would like to tell me?
THE WITNESS: After that my mother gone and I – operation ..... operation and everything so that after that she was not feeling well and this and that. So because she couldn’t be able to go to the bank and do the processing work so I couldn’t able to get further information from the bank and ..... that’s what I want to say.
The applicants were at all relevant times citizens of India. The first and second applicants were married. The third applicant is their son. On 28 November 2014 they applied for the visas in issue in this case. The first applicant listed the second and third applicants as members of the family unit of the first applicant.
On 1 December 2014 a delegate of the minister wrote to the first applicant asking him to provide evidence that he had sufficient funds to support himself and his family unit members. Specifically, the delegate requested the first applicant to demonstrate that the first applicant had access to $37 566.50 in order to meet expenses including course fees, living costs, school costs and travel costs.
On 24 December 2014 the representative then representing the applicant provided material to the delegate in response to the delegate’s request. It included an affidavit from the first applicant’s mother. In that affidavit Ms Hameeda Sultana stated that she had “secured demand loan against deposits of Rs.21 00 000/- (AUD 38 200) respectively from Central Bank of India” and she stated that she would provide financial assistance to her son to enable his studies. In addition, three term deposit receipts from the Central Bank of India were supplied recording receipts from the first applicant’s mother of Rs 8 00 000, Rs 6 00 000 and Rs 7 00 000. Further, a letter from Central Bank of India was provided to the first applicant’s mother dated 17 December 2014 certifying that the bank had “sanctioned Loan of Rs.18 90 000”.
On 6 January 2015 the delegate wrote to the first applicant pointing out the requirements of PIC 4020. In that letter the delegate stated that the majority of the loan had been withdrawn and was no longer accessible to the applicant. The delegate invited the first applicant to comment on information and to identify whether any compassionate or compelling circumstances justify the waiver of the requirements of PIC 4020 so as to justify the grant of the visa. The delegate gave the first applicant 21 days within which to respond
On 8 January 2015 the delegate wrote to the first applicant, again giving him 28 days within which to respond, about information obtained from the department to the effect that funds had been withdrawn and were no longer available to the applicant.
On 3 February 2015 the applicant’s representative provided a response to the delegate that included the letter from the first applicant giving reasons for the withdrawal of funds and detailing new deposits into the first applicant’s bank account.
On 5 February 2015 the minister’s delegate refused the application on the basis of the first applicant had not met the requirements of cl 572.232(2) of sch 2 to the Migration Regulations (“regulations”) and specifically, that the delegate was not satisfied that the first applicant would have access to funds identified in cl 572.232(2)(c) of the regulations. The delegate refused to grant the second and third applicants visas as they did not satisfy the requirements of cl 572.232(2) of the regulations or the primary criteria of other subclasses in class TU.
On 17 February 2015 the applicants applied to the tribunal for a merits review.
On 6 May 2015 the tribunal invited the applicants to appear before the tribunal on 5 June 2015 to give evidence and present arguments in relation to the decision under review. The tribunal requested the applicant to provide the documents that demonstrated that the applicant had sufficient funds or access to funds to pay course fees, living costs, school costs and travel costs.
On 3 June 2015 the applicants’ representative provided a collection of documents including written submissions and documents relating to the financial capacity.
On 5 June 2015 the hearing was duly convened by the tribunal, attended by the first applicant and the applicants’ representative. At the end of the hearing the tribunal adjourned the matter to allow the applicant to provide further documentation.
On 10 June 2015 the tribunal invited the applicants to appear before the tribunal on 3 July 2015 and resumed the hearing to discuss the issue raised in the previous hearing. Specifically, the tribunal alerted the first applicant to its concern that the first applicant may have provided information that was false or misleading in a material particular with the consequence that the first applicant may not satisfy cl 572.224 of the regulations because he did not satisfy PIC 4020.
On a date not identified, the applicants changed representation and the new representative wrote to the tribunal on 2 July 2015 attaching certain documents and requesting an extension of time. The tribunal acceded to the request and rescheduled its hearing on 24 July 2015. The tribunal notified the applicants that it wished to speak with them about issues raised at the earlier hearing, especially that the first applicant may have given or caused to be given a bogus document or information that was false and misleading in a material particular.
On 24 July 2015 the tribunal duly convened the further hearing before it in the presence of the first applicant and the applicants’ representative. At that hearing the first applicant provided bank statements from his mother’s bank account.
On 31 August 2015 the tribunal sent an email to the first applicant’s representative to inform him that the agreed date for submissions of further information in part and that the tribunal would proceed to make a decision the following week on the material.
By letter dated 18 November 2015, the tribunal invited the applicants to appear before it on 9 December 2015. The letter requested the provision of additional documents or information by 2 December 2015.
On 9 December 2015 the tribunal conducted its third hearing, again attended by the first applicant. At the hearing the first applicant provided to the tribunal documents relating to his mother’s cataract surgery. The tribunal made its decision on that day, providing verbal reasons. On the same day the tribunal wrote to the applicants confirming that a verbal decision had been made and that the tribunal affirmed the delegate’s decision to refuse to grant the applicants the visas they sought.
By letter dated 22 December 2015 the tribunal supplied the applicants with a written statement of its decision and reasons.
The tribunal identified the issue on the review as whether the visa applicant met PIC 4020 as required by cl 572.224 for the grant of the visa.
The tribunal set out the background regarding the provision of the documents in relation to financial capacity and the claims raised by the first applicant in relation to those documents.
The tribunal stated it was greatly concerned by movement of funds back and forth from the first applicant’s mother’s account, and it gave considerable weight to the finding of the investigation into documents provided by the applicants that the arrangement was non genuine.
The tribunal recorded it had repeatedly expressed its concerns to the applicants and that it had not ever received a clear explanation for the transaction on the first applicant’s mother’s account.
The tribunal did not accept the first applicant’s explanation for the movement of money in and out of his mother's account and stated[14] –
There are too many unexplained factors to make his explanation, that the money was withdrawn by a neighbour who was helping his mother so that the money could be sent to him via Western Union. The applicant has not explained the timing of this event, why the money remained out of his mother’s account, but was not sent to him via western union for some considerable period, who M Dharmanand was, and why, if he was a trusted third party, the applicant appeared to know almost nothing about him, or the other people named on the statement of account.
[14] Court book (filed on 9 June 2016) 371 [41]
The tribunal found that the first applicant and his family had engaged in a contrived arrangement to provide false and misleading evidence that the applicants had access to funds.
The tribunal did not accept the first applicant's explanation that his brother was too young to assist his mother.
The tribunal accepted that the first applicant's mother had cataract surgery on 14 November 2015. However, the tribunal recorded that the first applicant had undertaken to provide information by 21 August 2015. The tribunal did not accept that prior to her surgery the first applicant’s mother was not able to attend the bank to get information. The tribunal found that the applicants had attempted to delay and prolong the process.
The tribunal found that there was an element of fraud and that there had been a contrived arrangement engaged in by the first applicant and his family to falsely represent that the applicants had access to money which was not the first applicant or his mother’s funds but were provided by an unrelated third party for the specific purpose of providing the false and misleading impression that the funds were available to the applicants.
The tribunal found that at the time the first applicant declared in his student visa application process that he had access to funds required the information was false and misleading. The tribunal found that the false and misleading information related to a material particular, the requirement that the applicants give evidence of funds in accordance with the criteria. On this basis the tribunal found that the applicants did not meet cl 4020(1).
In accordance with PIC 4020(4), the tribunal then considered whether there were compelling circumstances affecting the interests of Australia or whether there were compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, which justified the granting of the visa.
The tribunal noted the first applicant’s evidence that there were no compelling circumstances, no family who were Australian or permanent residents and that he had said he did not wish to say anything further. The tribunal concluded that the requirements of PIC 4020(1) should not be waived.
The tribunal found that the criteria for the grant of a subclass 572 visa were not met and noted that the other subclasses of the class of visa sought all contained a provision requiring the satisfaction of PIC 4020 and so the first applicant was not eligible for the grant of a student visa of another subclass. The tribunal was not satisfied that the second and third applicants satisfied the primary criteria for the grant of any subclass of student visa and was not satisfied that they were members of the family unit of a person who held a student or other relevant class of visa. The tribunal affirmed the decision under review.
The applicants’ grounds
Many of the applicants’ “grounds” were not grounds properly so-called. That was because they did not set out propositions of fact or law by which it was ascertainable on what basis the applicants complained about the tribunal’s reasons. Many were narrative of historical matters, such as grounds one, seven, eight, or they posed rhetorical questions such as grounds 15 and 19.
That said, in grounds two and 16 the applicants alleged that the tribunal somehow failed to provide them with procedural fairness.
In ground two, the applicant said “there is no procedural fairness in the decision”. Doing the best I could to understand exactly what the applicants were arguing, it was readily apparent that they confused the outcome with the process. It seemed to me the tribunal gave them a proper opportunity to be heard and to present their case. It also seemed to me that the tribunal heard the applicants. The applicants did not specify in what way they said they were not afforded procedural fairness. They bore the onus of establishing some want of procedural fairness, as was held in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs.[15] In the absence of elaboration, I was unable to assess the veracity of the contention that the hearing was akin to “torture or abuse” as alleged.
[15] [2005] FCAFC 117
In my view, grounds two and 16 were without merit.
Ground three was a factual narration stating what the delegate did. In a judicial review application, the activity of the tribunal, not the delegate, is relevant as was held in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs,[16] Wu v Minister for Immigration & Ethnic Affairs,[17] Yilmaz v Minister for Immigration & Multicultural Affairs[18] and Minister for Immigration & Multicultural and Indigenous Affairs v Ahmed.[19] This ground was without merit.
[16] (2004) 139 FCR 344
[17] (1994) 48 FCR 294
[18] (2000) 100 FCR 495
[19] (2005) 143 FCR 314
Ground four merely stated what the applicant asserted was the issue in the case. It did not set out matters of fact or law by which it was possible to assess whether the tribunal fell into jurisdictional error of the sort canvassed classically in Craig v State of South Australia,[20] Minister for Immigration and Multicultural Affairs v Yusuf[21] or Kirk & Anor v Industrial Court of New South Wales & Anor.[22] In my view ground four was without merit.
[20] (1995) 184 CLR 163
[21] (2001) 206 CLR 323
[22] (2010) 239 CLR 531
In ground five the applicants referred to the acts of the delegate, then made reference to the case officer. The acts of the case officer were not relevant to the hearing of a judicial review application. Ground five was without merit.
In ground six the applicants agitated a factual debate about the sufficiency of the evidence in this case concerning the first applicant’s mother having transferred money. To the extent that the applicants invited me to enter the fray on the merits of the case, that was not the proper function of judicial review as has been pointed out time and again by authority at the highest level, such as Chan Yee Kin v Minister for Immigration and Ethnic Affairs,[23] Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[24] Attorney-General (NSW) v Quin[25] and Australian Broadcasting Tribunal v Bond.[26] This ground was devoid of merit.
[23] (1989) 169 CLR 379
[24] (1996) 185 CLR 259
[25] (1990) 170 CLR 1
[26] (1990) 170 CLR 321
Ground seven was a recital that the first applicant lodged his review. That was not proper ground of review
Ground eight was a recital of the preparation of submissions. It was not proper ground of review.
Ground nine contained a statement to the effect that the tribunal member canvassed aspects of PIC 4020. The first applicant said he did not know whether (I infer) he was compliant. The tribunal determined that aspect of the case, as it happened, adversely to the applicants. To the extent that ground nine sought a reconsideration of the tribunal determination in respect of the funds from the first applicant’s mother that was an invitation me to impermissibly embark on a merits review which I decline to do. Ground nine was without merit.
Ground 10 was a submission, rhetorical question or an expression of unhappiness with the outcome. On any characterisation it was not a proper ground of review.
Ground 11 made no sense. I took it to mean that the applicant contested the tribunal’s decision. That was not proper ground of review
Ground 12 addressed the mechanical aspects of international transfer of funds. In it the applicant also sought to agitate the fairness of the tribunal’s finding. It was an invitation to engage in an impermissible merits review.
Ground 13 was not proper ground of review. It was without merit.
In ground 14 the applicants asserted that the tribunal should have called a sponsor. By that I took the first applicant to contend that it fell to the tribunal to adduce or cause to be adduced evidence from a particular person. That was not the tribunal’s function, as was pointed out in Minister for Immigration and Citizenship v SZIAI[27] and in Minister for Immigration and Citizenship v SZGUR.[28] I disagree that the tribunal was required to do as the first applicant asserted.
[27] [2009] HCA 39
[28] (2011) 241 CLR 594
Ground 15 made no sense.
I have already addressed ground 16.
Ground 17 was not a statement of fact or law by which it could be ascertained that the tribunal fell into jurisdictional error. Ground 17 was bereft of merit.
In ground 18 the first applicant asserted he had exceptional circumstances. The tribunal properly examined his circumstances. I find that none existed. No basis was shown for unsettling that result.
Ground 19 was a question, not a valid ground of review.
Ground 20 was also a question.
No basis was shown for the grant of relief in this case. I dismiss this application and order the applicants to pay the minister’s costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 24 October 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Appeal
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