KUMAR v Minister for Immigration
[2020] FCCA 1345
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1345 |
| Catchwords: MIGRATION – Medical Treatment (Visitor) (Class UB) visa – application for reinstatement – where substantive application has no merit – application for reinstatement dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06, 13.03C, 16.05, 44.12, 44.13 Migration Regulations 1994 (Cth), cls.602.211, 602.212, 602.215 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 EII17 v Minister for Immigration & Border Protection [2018] FCA 1863 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | DEEPAK KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 504 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 27 May 2020 |
| Date of Last Submission: | 27 May 2020 |
| Delivered at: | Perth |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr A Gerrard |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application in a case filed 6 May 2020 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 504 of 2018
| DEEPAK KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter was listed for show cause hearing on 31 January 2020. On that occasion the applicant did not make an appearance. The Court dismissed the substantive application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) and ordered the applicant to pay the Minister’s costs.
On 6 May 2020, the applicant filed an application in a case with a supporting affidavit seeking to have the orders made on 31 January 2020 set aside.
On 27 May 2020, the Court heard submissions from the parties about whether the application should be reinstated. The parties appeared by telephone.
The Court had before it the application for judicial review, a Court Book (“CB”) numbering 76 substantive pages (marked as Exhibit 1), correspondence concerning the service of the Court Book (marked as Exhibit 2), an affidavit of Marie Therese Azar dated 26 May 2020, an outline of written submissions from the Minister dated 19 November 2019 and the application in a case and an affidavit from the applicant dated 5 May 2020 (though filed on 6 May 2020).
Background
By application filed in this Court on 26 September 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) made 6 September 2018. The Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) to not grant the applicant a Medical Treatment (Visitor) (Class UB) visa (the “visa”).
The Minister’s submissions dated 19 November 2019 (at [2]-[8]) accurately set out the factual background to this matter. The Court adopts that summary as its own. It provides, with some additions, as follows.
The applicant is a citizen of India who first arrived in Australia on 13 May 2008 as the holder of a Student visa (subclass 573) (CB 42). That visa was valid for a stay in Australia until 2 September 2010. In early 2009, the applicant withdrew from his course of study (CB 42).
On 30 September 2010, the applicant was granted a Student visa (subclass 572) onshore. On 6 October 2011, that visa was cancelled (CB 42). The applicant appealed that decision to the then Migration Review Tribunal. The decision to cancel that visa was ultimately affirmed on 28 November 2012 (CB 42)
Between 2013 and 2017, the applicant unsuccessfully applied for various other visas and requested Ministerial Intervention on two occasions (CB 42).
On 25 August 2017, the applicant applied for the visa the subject of this application (CB 1-12). The applicant applied on the basis that he was suffering from anxiety and depression and required medical treatment in Australia (CB 4 and 16). A number of supporting documents were provided. These included a medical certificate and a Psychological Assessment and Treatment Plan (CB 16-23).
On 31 August 2017, a Ministerial delegate refused to grant the visa. The delegate found that the applicant did not meet the requirements in cl.602.215 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 40-45).
On 31 August 2017, the applicant sought review of the delegate’s decision at the Tribunal (CB 46-47).
On 20 July 2018, the Tribunal sent a letter to the applicant by email inviting him to appear before the Tribunal on 22 August 2018 (CB 52-53). On 21 August 2018, the applicant emailed the Tribunal to advise that he was unable to attend the hearing as he was in Adelaide for work (CB 54). The Tribunal invited the applicant to attend the scheduled hearing by telephone. This offer was accepted (CB 58).
The applicant appeared before the Tribunal by telephone on 22 August 2018 (CB 55-57). The applicant was provided an additional seven days following the hearing to provide any further information (CB 57). No further material was provided.
On 6 September 2018, the Tribunal affirmed the delegate’s decision (CB 62-71).
Tribunal’s Decision
The Tribunal’s decision is 11 pages long and spans 53 paragraphs. Two pages extract in full cl.602.212 of the Regulations.
The Minister’s submissions at [11]-[14] accurately summarise the Tribunal’s decision. The Court adopts this summary as its own. With some additions, that summary provides as follows.
At [1]-[7], the Tribunal summarised the background to the application.
The Tribunal noted that the visa the applicant had applied for is for persons seeking to remain in Australia temporarily for medical treatment or related purposes (CB 63 at [8]).
The Tribunal then stated that the issue in this matter was whether the applicant genuinely intended to stay temporarily in Australia in accordance with the purpose for which the visa was granted (CB 63 at [9]).
At [10]-[19], the Tribunal summarised the evidence it had before it. This included documents provided with the visa application and evidence the applicant had given during the course of the Tribunal hearing.
At [20]-[22], the Tribunal detailed the applicant’s migration history and indicated that it had put this history to the applicant for comment. The applicant confirmed that the history as summarised by the Tribunal was correct.
The Tribunal then considered whether the applicant was “unfit to depart Australia” in accordance with cl.602.212(6).
The Tribunal concluded as follows:
a)for cl.602.212(6) to be met, the applicant must meet all requirements of cl.602.212(6)(a)-(f) (CB 66 at [24]);
b)the applicant was 30 years old and did not meet cl.602.212(6)(b) (CB 66 at [25]);
c)there was no evidence that the applicant had applied for a permanent visa in Australia and met all criteria for the visa other than the health criteria but has been refused the visa. Accordingly, the applicant did not meet cl.602.212(6)(c)-(e) (CB 66 at [25]);
d)there was no evidence that the applicant was medically unfit to depart due to permanent or deteriorating disease (as required by cl.602.212(6)(f)) (CB 66 at [25]); and
e)consequently, the requirements in cl.602.212(6) were not met (CB 66 at [26]).
The Tribunal then considered whether the applicant held “a genuine intention to stay temporarily” in accordance with cl.602.215.
Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. This is not a requirement if the applicant is medically unfit to depart Australia as described in cl.602.212(6). However, as the applicant did not meet the requirements of cl.602.212(6), the Tribunal considered that cl.602.215 applied and considered it accordingly (CB 66-67 at [27]-[28]).
When assessing whether the applicant met cl.602.215, the Tribunal noted that it must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which this visa would be subject and any other relevant matter (CB 67 at [29]).
The Tribunal reasoned and found as follows:
a)the Tribunal did not have any information before it to suggest that the applicant was not meeting the conditions of the current bridging visa he held and, on that basis, found that the applicant was meeting the conditions of his current bridging visa. The Tribunal placed some weight on this (CB 67 at [30]);
b)the Tribunal was concerned that the applicant did not appear to be aware that he could not work if he was granted the visa as the applicant indicated that he had applied for the visa so that he could work to support his family. While the applicant indicated that he would comply with the visa conditions and would be supported by his partner, the Tribunal found this to be inconsistent with the applicant’s evidence that the reason he applied for the bridging visa that he presently held was because he needed to work to support his family and there were difficulties when he could not work (CB 67 at [31]-[32]);
c)after having put a number of matters to the applicant about his visa history, the Tribunal found that the applicant had an extensive visa history of non-compliance with visa conditions. It noted that the applicant’s last substantive visa was a student visa granted on 3 September 2010 and that that visa was cancelled on 6 October 2011 due to non-compliance with visa conditions. It was noted that the applicant had routinely overstayed his visas, breached conditions and stayed unlawfully in Australia and disengaged with the Department on multiple occasions (CB 68-69 at [42]-[45]). The Tribunal placed weight on these matters;
d)having referred in detail to the applicant’s evidence (at [35]-[36]), the Tribunal noted that the applicant had no current plans to see his GP or treating psychologist and that he had formed the view he could treat himself. Hence, the Tribunal was not satisfied the applicant intended to undertake any medical treatment while on the visa (CB 68 at [37]-[38]); and
e)the Tribunal than considered the applicant’s evidence in relation to any personal circumstances that would encourage him to stay temporarily. The Tribunal noted that the applicant’s evidence did not indicate that he had any intention to leave Australia. Rather, he wished to remain in Australia with his family. For the Tribunal this weighed against a finding that the applicant intended to stay temporarily (CB 68 at [39]-[41] and [46]).
At [47]-[49], the Tribunal stated as follows:
47. The Tribunal indicated to the applicant that it was concerned that the applicant had applied for the medical visa with an intention to stay in Australia. The applicant did not offer any response to this. The Tribunal also put to the applicant that he did not appear to be receiving ongoing treatment or have any plan for future treatment which would support an assertion that he genuinely intended to stay in Australia temporarily for the purpose for which the visa was granted. The applicant did not have any response. The Tribunal also put to the applicant that it was concerned that he did not genuinely intend to stay in Australia temporarily. The applicant did not have any further response to this.
48. As noted above the applicant’s own evidence was that he does not have any current plans to see either his GP or treating psychologist. The applicant told the Tribunal that he and his partner had formed the view that he could treat himself based on the exercises given to him by his psychologist. He has no appointments to see either his GP or psychologist in the future though he indicated he could if he needed to. Further, while the applicant indicated he could travel to New Zealand in the future he had no current plans to travel to New Zealand or India and had indicated that he wishes to stay in Australia with his family. Further, the applicant’s visa history includes numerous occasions where he has failed to comply with visa conditions.
49. In addition, the applicant stressed repeatedly in the hearing his desire to remain in Australia with his family and the difficulties which they would suffer if he were to leave. On the applicant’s evidence it was the risk of removal from Australia which had given rise to the depression which had caused him to seek medical treatment and it is staying with his family in Australia which is the treatment he is seeking through applying for the medical visa. Based on his evidence and his visa history, the Tribunal has formed the view that the applicant does not intend to engage in medical treatment in Australia and does not intend to remain in Australia temporarily.
On the evidence provided, the Tribunal was not satisfied the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted and did not meet cl.602.215 or the requirements for the visa (CB 69 at [50]-[52]).
On the basis of the above, the Tribunal affirmed the decision not to grant the visa.
Proceedings in this Court
As indicated above, the applicant made no appearance on 31 January 2020 when this matter was listed for show cause hearing.
The applicant is now seeking that the orders made 31 January 2020 be set aside pursuant to r.16.05(2)(a) of the Rules. The applicant refers to the orders being “quashed”. Nonetheless, the Court will treat this as a reinstatement application. The applicant did not object when the Court explained that it would proceed on that basis.
In his affidavit dated 5 May 2020, the applicant explains that the reason for his non-appearance was that he had not updated his address for service. He explained that he had moved and was unaware of the hearing date and time. He also explained that he was suffering from poor mental health at the time as he had “broken up with his girlfriend”.
The applicant appeared before the Court without representation when the matter came on for hearing of the application for reinstatement on 27 May 2020. He appeared from Yongah Hill Immigration Detention centre.
The Court explained that the purpose of the hearing was to determine whether the Court should set aside the orders that it had made on 31 January 2020.
The Court then explained that the matters it generally considers in a reinstatement application include, but are not limited to:
a)whether there is a reasonable excuse for the party’s absence from the hearing in which the substantive application was dismissed;
b)the length of any delay in seeking reinstatement and the existence and nature of any prejudice which might flow to the Minister from reinstatement. To the extent there is any prejudice, the Court will consider the extent to which that prejudice can be mitigated by other relief such as costs; and
c)whether the applicant has a reasonably arguable prospect of success in relation to the substantive application.
(MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530)
The Court will outline the applicant’s submissions, and the Minister’s submissions in response, below.
The Court notes that it also received an email from the applicant after the hearing had been conducted and judgment reserved. The Court cannot accept this email as evidence but notes that, in any event, the contents of that email refer to the applicant’s personal circumstances and the hardship that he is facing in detention. These matters are unfortunate and the Court is, of course, sympathetic to the concerns raised. Unfortunately, the issues raised are not relevant to the Court’s task on judicial review.
Explanation and Delay
The applicant’s explanation for his non-appearance was that he was unaware of the hearing date as he had moved address and had not updated his notice of address for service.
The Minister submits that the applicant’s explanation is not credible and that Ms Azar’s affidavit confirms that the applicant had been advised of the hearing date on multiple occasions.
It is noted that the applicant was advised of the date and time of the hearing in correspondence sent by email. The applicant’s email address is the same as it that which appears on the originating application filed on 31 September 2018. Hence, any change of postal address for service is of little bearing on whether the applicant was advised of the change of hearing date. This aspect of the applicant’s explanation is of no assistance to his case.
Nonetheless, the applicant also suggests that he was “in a poor mental state”. The applicant also indicated that being in immigration detention had been difficult. The Court does not doubt him in this regard.
The explanation provided is satisfactory.
The delay in applying for reinstatement is approximately three months. The Minister submits that this is significant.
It appears that the applicant was detained following the previous hearing. This perhaps explains why the applicant did not immediately apply for reinstatement. His mental health also appears to have been of concern. He also stated during the hearing that he was unable to obtain assistance or advice while in detention.
In the circumstances, the Court attaches little weight to the fact that the applicant’s delay in applying for reinstatement was 3 months long. The delay should not be seen as a factor in denying reinstatement.
As for prejudice to the Minister caused by the delay, the Court does not place any weight on this factor. Any prejudice can be allayed by costs if the Court considers that necessary.
Overall, these matters weigh in favour of reinstatement.
Merits
The Court will now consider the merits of the judicial review application.
In CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 at [4]-[6], Justice Mortimer (when explaining the meaning of “merit” within the context of an application for reinstatement) stated:
4. … The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
5. However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
6. The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.
The Court must assess whether any of the grounds of review in the judicial review application are arguable at a necessarily impressionistic level.
The judicial review application contains one ground of review that simply states “medical reasons”.
On 31 January 2020, this matter was listed for a show cause hearing pursuant to r.44.12 of the Rules. The Minister submitted that as the matter was listed in this way, the applicant is confined to this ground of review: Rules, r.44.13(1).
While technically correct, as this Court has noted previously, the Court has the power to dispense with the r.44.13(1) (by way of r.1.06) if it considers it in the interests of justice to do so.
The Court notes and is guided by the Federal Court’s decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], wherein the Court makes it clear that an unrepresented applicant should be given an opportunity to orally explain what they believe the Tribunal “did wrong”. Here, the Court considers the circumstances of this case to be such that the Court should exercise its powers under of r.1.06 and dispense with compliance with r.44.13(1).
In this context, in addition to allowing the applicant to clarify what he means by his sole ground of review, the Court also provided him an opportunity to explain if there was anything, generally, he thought the Tribunal “did wrong”.
To assist the applicant, the Court explained that this Court will turn its attention to the issue of jurisdictional error. The Court explained that that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. It was explained that for a migration decision of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant the visa that is sought. Rather, the role of the Court in a reinstatement application is restricted to determining if there is an arguable case that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against that background, the applicant submitted that he had, and continues to have, poor mental health and that he had explained this to the Tribunal. When asked if there was anything he thought the Tribunal “did wrong”, the applicant seemed to suggest that he did not think so.
Consideration
The sole ground of review identifies no discernible error.
To the extent that the applicant is suggesting that the Tribunal erred as it did not grant him the visa which he sought (which was a visa based on “medical reasons”), without more the ground of review as articulated simply invites the Court to engage in impermissible merits review.
In the Court’s duty to the self-represented litigant (see, EII17 v Minister for Immigration & Border Protection [2018] FCA 1863), the Court has considered the Tribunal’s decision with a view to identifying whether there is any arguable case of jurisdictional error on the part of the Tribunal.
The Minister’s submissions on why the Tribunal’s consideration of cls.602.212(6) and 602.215 do not contain any error are clear and helpful and the Court agrees with the conclusions provided.
As correctly pointed out by the Minister, in relation to the Tribunal’s finding that the applicant did not meet cl.602.212(6), there is no error apparent from the Tribunal’s assessment of the evidence before it.
Relevantly, clause 602.212(6) required the applicant to meet all of the following:
…
(a) the applicant is in Australia;
(b) the applicant has turned 50;
(c) the applicant has applied for a permanent visa while in Australia;
(d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e)the applicant has been refused the visa;
(f) the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
It is clear from the applicant’s own visa application that he is not over the age of 50. On that basis alone cl.602.212(6) was not met. The applicant was required to meet all of the matters. He did not.
In any event, the Tribunal went on to note that the applicant did not meet cl.602.212(6)(c)-(f). The conclusion reached that the applicant did not meet those criterion was again as there was simply no evidence that the applicant met any of these criteria.
No arguable error arises in relation to the Tribunal’s consideration of cl.602.212(6) of the Regulations.
Having found that the applicant did not meet cl.602.212(6), it was necessary for the applicant to meet cl.602.215. That clause provided as follows:
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and
(c)any other relevant matter.
The Tribunal correctly noted (at [8]) that the purpose for which the visa is granted is to enable an applicant to obtain medical treatment or related purposes: Regulations, cl.602.211. The Tribunal also correctly noted each of the matters it must have regard to (at [29]).
The Tribunal considered each of these matters and relevantly found as follows:
a)the applicant did not intend to seek or undertake any medical treatment while on the visa (at [38]). This did not support a finding that he genuinely intended to stay in Australia temporarily for the purpose for which the visa was granted (i.e. to obtain medical treatment);
b)the applicant has an extensive visa history of non-compliance with visa conditions and this weighed against finding that he intends to comply with the conditions of this visa (at [33]);
c)the applicant did not provide any evidence beyond his assertion that he would comply with the conditions of the visa (at [31]). When considered in light of the non-compliance with conditions previously, this weighed against the applicant (at [33]); and
d)the applicant’s personal circumstances (including matters that would encourage him to return to India or his plans as to when he would depart Australia) indicated that he did not have a desire to remain in Australia only temporarily (at [49]).
The Tribunal considered each of the matters that it was required to consider under the Regulations.
The Tribunal extensively referred to the applicant’s evidence and assessed that evidence against the matters it was required to have regard to. Ultimately, the Tribunal was not satisfied that the applicant’s evidence satisfied the criterion in cl.602.215. The Tribunal’s reasons were logical and reasoned. They were based on the applicant’s own evidence.
The Court is satisfied that there is no arguable error in the Tribunal’s assessment of whether the applicant met cl.602.215 of the Regulations.
The applicant’s sole ground of review, read as beneficially as the Court is able to, and the Tribunal’s reasons as considered by the Court, raise no arguable case of jurisdictional error. This weighs significantly against the application being reinstated.
Conclusion
The applicant seeks reinstatement of his substantive application. The Court accepts the explanation provided for non-appearance as satisfactory, notes that the delay in question is not significant in the circumstances and notes the lack of any prejudice should the matter be reinstated. Nonetheless, the Court finds that there is no arguable case whatsoever that the Tribunal erred in assessing the applicant’s case. The Court does not consider it to be in the interest of the administration of justice to reinstate the applications. It would be an ineffective and futile exercise of power where the application has no prospects of success whatsoever.
The application for reinstatement is, accordingly, dismissed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 28 May 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Appeal
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Standing
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