Romha (Migration)
[2021] AATA 132
•12 January 2021
Romha (Migration) [2021] AATA 132 (12 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Eden Meressa Romha
CASE NUMBER: 2011613
HOME AFFAIRS REFERENCE(S): BCC2016/3635221
MEMBER:Kira Raif
DATE:12 January 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.
Statement made on 12 January 2021 at 5:26pm
CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – Federal Circuit Court remittal – incorrect information in visa application – member of family unit of primary visa applicant parents – partner and child not declared – applicant later sponsored partner and child for partner visa – not necessary to determine de facto relationship – applicant did not tell family about partner and child – application prepared by uncle and signed by application without ensuring correct information – discretion to cancel visa – now married to permanent resident with Australian citizen child – best interests of child – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1), 127
Migration Regulations 1994 (Cth), r 2.41CASE
MIAC v Khadgi (2010) 190 FCR 248STATEMENT OF DECISION AND REASONS
Application for review
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant was granted a Partner visa in January 2014 as a secondary applicant and a member of the family unit of the primary visa applicant. On 21 March 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC, the Notice) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided her response and her visa was cancelled in June 2017. The Tribunal (differently constituted) affirmed the decision under review in September 2019. The applicant sought judicial review of the Tribunal’s decision and in July 2010 the matter was remitted to the Tribunal for reconsideration.
The applicant claimed before the previous Tribunal that the delegate had not complied with the Notification requirements of s. 127. The Tribunal is mindful that the applicant did make a valid application for review which is under consideration by the Tribunal. The Tribunal finds that any deficiency of notification, even if it occurred (it makes no finding on the issue) does not invalidate the decision to cancel the applicant’s visa and the validity of this application for review.
The applicant appeared before the Tribunal on 12 January 2021 to give evidence and present arguments. The applicant invited the Tribunal to receive oral evidence from her spouse and aunt and uncle but the Tribunal determined it was not necessary to do so. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.
Did the notice comply with the requirements in s.107?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.
The applicant made the application for the Partner visa on 5 October 2010. In response to Question 38 of the Application form 47SP, the applicant stated that she had never been married or in de facto relationship. In response to Question 39 of the form, the applicant did not provide details of any children. The applicant also completed form 47A in which she stated that she had never been married or in de facto relationship. In response to Question 27 the applicant did not provide details of any children. The applicant claimed in her application that she had been dependent on the primary visa applicant, Etalem Salvatory.
The applicant’s application was refused because the delegate was not satisfied the applicant was a member of the family unit of the primary visa applicant. In September 2012 the Tribunal remitted the matter and the applicant was granted the Partner visa as a member of the family unit on 21 January 2014.
In September 2014 the applicant sponsored Mr Noad Elyas Gebremariam and her child Noh Noad Elyas (born on 13 September 2010) for a Prospective Marriage visa. It is stated in the primary decision that Mr Gebremariam declared the same residential address in his Prospective Marriage visa application as was declared by the visa applicant during the processing of her own visa application.
The delegate wrote to the applicant seeking her comments on adverse information. The visa applicant stated in her submission to the delegate dated 29 January 2016 that she met Noad Gebremariam in 2014 and they became close. After she found out about her pregnancy, she ran away from home and they lived together for about three months. After the baby’s birth, they lived with Mr Gebremariam’s mother for about a month before she returned home. In her response to the NOICC the applicant concedes that she gave incorrect answers with respect to the birth of her child.
In her response to the NOICC the applicant denies having a de facto relationship with Noad Gebremaniam, stating that he was still dependent on his parents and she only stayed with him to avoid living at home. In her evidence to the previous Tribunal the applicant states that her relationship with Mr Gebremaniam would not have met the definition of de facto, was not of 12 months duration and any migration agent would not have made the application on the available evidence.
The applicant told the Tribunal that she met Noad when they were living in the same compound and were neighbours. They started going out together, would go out for drinks and dinners and had an intimate relationship. They would see each other every month or two. After she realised she was pregnant and her pregnancy became more visible, she went to stay with Noad’s mother and lived there for about four months. The applicant states that during this period Noad’s family was helping her financially and she also received money from her aunt. After her parents migrated to Australia, she moved to different part of the city to live closer to Noad and her child.
The Tribunal does not accept the applicant’s evidence about the nature of her relationship with Noad Gebremaniam. The Tribunal is mindful that the applicant and Noad had a child together and in the Tribunal’s view, the conception of that child implies that the relationship was more than that of flat-mates or close friends. The applicant’s evidence is that she lived with Noad’s mother after her pregnancy progressed and his family supported her financially during the pregnancy. The Tribunal also notes the applicant’s evidence that after her parents left for Australia and before she was granted the visa, she moved to a different area of the city where Noad lived, suggesting there was more to their relationship than mere friendship. The Tribunal also places weight on the fact that very soon after being granted a permanent visa, the applicant sponsored Noad Gebremaniam for a Prospective Marriage visa, claiming that they intended to marry and live together as spouses. That supports the Tribunal’s view that the applicant formed a commitment to a relationship before the applicant’s migration and that the applicant and Noad did have a relationship, rather than a mere friendship, previously.
As for the applicant’s claim that the relationship would not have met the statutory definition of de facto, the Tribunal is mindful that the statutory criteria must be considered in the particular circumstances of each case. For example, it may not have been possible for the couple to pool their finances if the applicant had no income at all. The applicant’s evidence to the Tribunal is that she and Noad had socialised together and Noad’s family provided her with financial support for the period she had lived away from her own family. Even if such support was not provided by Noad directly, the Tribunal is of the view that his mother would not have provided any support to the applicant, had it not been for her relationship with Noad. It appears that there was mutual commitment between the applicant and Noad, as is evidenced by their intention to be married and live together as husband and wife (hence the application for the Prospective Marriage visa shortly after the applicant’s migration). These factors may have been sufficient to find the existence of a de facto relationship and, with respect to the 12 months requirement, the Tribunal is mindful that the legislation provides for a waiver. Thus, the Tribunal does not accept the applicant’s submission that their relationship would not have met the statutory definition. The Tribunal is mindful that this assessment was never undertaken because the relationship had not been disclosed at the time of application or prior to the applicant being granted the visa.
For the purpose of establishing the breach, it is not necessary to determine whether the applicant was in a de facto relationship with Noad Gebremaniam. The applicant concedes a failure to comply with s. 101 because of the birth of her child, which took place before the applicant submitted the application forms. The Tribunal finds that the applicant’s son was born in September 2010. The Tribunal finds that the applicant gave an incorrect answer on the application forms when she stated she had no children. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s. 101 of the Act. The Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
The correct information
It is not in dispute that the applicant had a child born before her application for the visa. The Tribunal has also formed the view that the applicant had a de facto relationship with Noad before making the application for the visa.
The content of the genuine document (if any)
This is not relevant in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant made the application for the visa on the basis of being a dependent child, and a member to the family unit, of the primary visa applicant. The Tribunal differently constituted previously found the applicant met these requirements but the Tribunal was not aware of the applicant’s relationship or of the birth of her child.
The Tribunal is mindful that the relevant definition of ‘member of the family unit’ precludes a child who is in a de facto or spousal relationship. That is, if the delegate had determined that the applicant was in a de facto relationship, the applicant may not have been recognised as a member of the family unit of the primary visa applicant. The applicant claims she was not in a de facto relationship and that the statutory requirements to establish a de facto relationship were not met in her case but for the reasons set out elsewhere, the Tribunal does not accept the applicant’s arguments.
The Tribunal also notes that if the information about the birth of the child was known, the applicant would have been required to meet additional requirements, for example, the child would have to meet PIC 4017 and may have been required to meet health requirements. Further, if the information about the child was known, the delegate would have considered whether the applicant was in a married or de facto relationship with the child’s father in order to meet the definition of being a member of the family unit of the primary visa applicant.
In her submissions to the previous Tribunal dated 22 March 2018 and to the present Tribunal dated 7 January 2021 the applicant states that information about the child was immaterial to the outcome. However, that is not the issue here. It is not necessary for the Tribunal to determine whether the applicant would have been assessed as being in a de facto relationship or whether the visa would have been granted, if the correct information was known. It is sufficient that the decision was based on the incorrect information. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.
The circumstances in which the non-compliance occurred
In response to the NOICC the applicant stated that she and Noad Gebremariam were friends and she fell pregnant. She believed her family would be angry or ashamed of her and she ran away when she was 6 months pregnant to stay with Noad and the pregnancy was kept a secret from the families. The applicant states that once she returned to live with her family, she did not tell them about the baby who was cared for by Noad’s mother. Her parents instructed an agent to prepare the visa application and no reference was made to her boyfriend or the baby because she did not tell her parents about them. The applicant states that she was illiterate and did not understand the questions on the form or the answers she gave. The applicant states that she was not in de facto relationship with Noad because he was supported by his parents and she only stayed at his place to escape from home. The applicant denies living at the same address as Noad, stating that they lived in the same sub-city but streets had no numbers. In her submission to the first Tribunal, however, the applicant appears to suggest that she did live with Noad for a period of time but not for the 12 months required of a de facto relationship and her evidence to the present Tribunal is that she lived with Noad’s mother who took care of her during the late stage of pregnancy.
In her submission to the first Tribunal the applicant stated that the paperwork was prepared by the sponsor who was unaware of the birth of the baby. The applicant states that neither she nor her mother could read or understand English and were simply given direction where to sign. The applicant similarly told the present Tribunal that her uncle prepared the paperwork and she did not wish to disclose the birth of the child to her family, so the uncle was unaware of the existence of the child. The applicant states that she did not understand the law and her language skills were poor, so she simply signed. The Tribunal is of the view, however, that the applicant had the responsibility to check the content of the documents before signing these. There is no obvious reason why the applicant could not communicate with the sponsor and ask to translate the content of the forms and the applicant’s evidence to the Tribunal is that she has not done so. The applicant’s evidence appears to be that the information about the child was not provided because she was too embarrassed to inform her family about the child’s existence and not because she had no understanding of the form. That is, even if the applicant was aware of what was written on the form, she would not have provided information about the child because she did not want her family to know.
In her evidence to the present Tribunal the applicant stated that the application form was completed by her uncle and she had hidden the existence of the child from her family. The applicant states that in her culture, pregnancy before marriage is not permitted so the did not want to bring shame to the family and she did not disclose the child out of respect for her uncle. The Tribunal acknowledges the applicant’s explanation for not disclosing the birth of the child to her family but in the Tribunal’s view, that does not excuse the provision of incorrect answers in the application. Whatever the applicant’s motivations were in her interactions with her family, the Tribunal is of the view that the applicant had the obligation to be truthful in her interactions with the Department.
The applicant also told the Tribunal that she was unaware of the legal issues and her language is not good and she was unaware of the content of the application. The Tribunal does not accept that explanation. Firstly the Tribunal is mindful that the issue here does not involve any legal concepts or complex issues. The issue here relates to the birth of the child and the applicant did not require any special knowledge to recognise that she had child. Secondly, the Tribunal is of the view that the obligation is on the visa applicant to ensure correct information is provided and, if necessary, acquaint herself with the issues that are relevant to the application. That is, lack of knowledge of lack of understanding does not excuse non-compliance with the law.
The applicant told the Tribunal that she did not ask her uncle, who completed the forms, about the contents of the form before signing. It appears that the applicant was indifferent about ensuring that the information that she provided, or that was provided on her behalf, was correct and accurate. The applicant told the Tribunal that her purpose was to come to Australia to join her family. The Tribunal has formed the view that the applicant had not taken adequate steps to ensure information she gave (or that was given on her behalf) on the application forms was correct and accurate. The applicant claims she did not expect her uncle to mislead Immigration but her evidence is that her uncle was unaware of the birth of her child so he could not have disclosed that information to the Department and that would have been obvious to the applicant.
The Tribunal finds that the provision of incorrect answers was deliberate and was done knowingly in order to ‘save face’ in front of her family, rather than because of the applicant’s claimed lack of English or illiteracy or lack of understanding of the legal requirements.
The present circumstances of the visa holder
In her response to the NOICC the applicant refers to the study she completed in Australia and states that she works and provides financial support to her partner and child. The Tribunal accepts that evidence and accepts that the applicant is well settled in Australia.
The applicant told the Tribunal that she ended the relationship with Noad around 2016 or 2017 and his application was refused and shortly after that her visa was cancelled. The applicant told the Tribunal that she had not informed the Department about the breakdown of her relationship because Noad’s application was refused shortly after the relationship breakdown.
In her submission to the Tribunal of 7 January 2021 the applicant provides updated information about her present circumstances. The applicant states that she is now married to Mr Gurmu, who is an Australian permanent resident, and they have a child born in July 2019 who is an Australian citizen. The applicant states that she lives with her partner and has full-time employment as a cleaner. Before that she was supported by her partner.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act. The applicant’s evidence to the Tribunal is that she is settled into the community, complied with Australian laws and community expectations and had complied with visa conditions.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance known to the Tribunal.
The application was made in October 2010. More than ten years passed since the non-compliance and the Tribunal acknowledges it is a lengthy period.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community.
The applicant refers to her church activities and support she provides to members of the community and she provided a statement from the Ethiopian Women’s organisation which refers to her active involvement. the applicant refers to her employment and the payment of taxes and support for her employer’s business.
In her evidence to the present Tribunal the applicant states that she is an active volunteer in the Ethiopian community and has engaged in various community and other volunteer programs and activities. She continues to be an active member of a church and enjoys a close relationship with her family in Australia.
The Tribunal accepts the applicant has made a significant contribution to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s.140.
There are no persons whose visas would be subject to consequential cancellation.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
The applicant has a child born in Australia in 2019 who is an Australian citizen. In her submission to the Tribunal the applicant refers to the Convention on the Rights of the Child (CRC) and states that given her child’s young age, it would cause him great harm if he was separated from one of his parents. The applicant claims it would be in the best interest of this child if the applicant was allowed to stay in Australia and care for him. The Tribunal accepts that this is so, given the child’s age and the fact that the applicant is the primary caregiver to the child.
The applicant’s evidence to the Tribunal is that her spouse came to Australia holding the Subclass 200 visa because his parents had been assessed as facing persecution in his home country and his family was sponsored by UNHCR, her husband was included in his parents’ application. The Tribunal accepts that the husband cannot travel with the applicant, should she be required to leave Australia and the cancellation of the visa would lead to separation of a minor child with one of the parents. The applicant’s evidence to the Tribunal is that the child would not be able to travel with her to a war-torn country. The Tribunal accepts that it is in the best interests of this child if the visa is not cancelled and the applicant is able to remain in Australia to take care of the child.
Surprisingly, the applicant’s written submission to the Tribunal does not address the best interests of her elder child. It is unclear to the Tribunal why the interests of that child, who is also a minor, would equally not require the child to be with his mother and for the mother to take care of the child. The applicant’s evidence to the Tribunal is that she hopes to sponsor that child to come to Australia.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant provided to the Tribunal a variety of country reports and other information concerning discrimination and harm she would face in her home country. The applicant claims she would be at risk of ethnic cleansing and discrimination due to her ethnicity and due to her being in a mixed marriage. The applicant refers to the conflict in her home country and states that she has been unable to contact her mother.
In oral evidence the applicant referred to the unrest in her country, stating that women in particular are subjected to harm. The applicant refers to the genocide in her home country based on ethnicity. The applicant states that she would be killed if she was returned to her home country. The applicant states that she has not been able to communicate with her relatives and she does not know if they are alive.
Whether there are mandatory legal consequences
If the applicant’s visa is cancelled, unless she is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for her to do so in Australia as a result of the cancellation. The applicant may be subject to an exclusion period in relation to future visa applications. The applicant may also lose some entitlements she may have acquired as an Australian permanent resident, including the opportunity to sponsor her partner and child for a visa, although the Tribunal is mindful that the applicant now claims to be in a different relationship.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant’s evidence to the first Tribunal is that she lives with her parents and siblings and has settled in Australia. The Tribunal accepts that if the applicant was to depart Australia, it may cause hardship to her family. The Tribunal is not satisfied that it would also cause hardship to the members of her church community. The Tribunal is mindful that the applicant is able to leave the community or join or different community or cease her activities at any time.
In her evidence to the present Tribunal the applicant refers to her marriage to Mr Gurmu, who is an Australian permanent resident, and refers to the hardship that the family would experience if they are forced to separate. The applicant refers to Article 16 of the Universal Declaration of Human Rights. The Tribunal accepts that if the applicant was required to leave Australia, it would lead to separation of the applicant from her partner and minor child and that would cause hardship to the family. The applicant’s evidence to the Tribunal is that she has nothing to go back to in her home country where she would be subjected to harm. Given the length of time the applicant has lived in Australia, the Tribunal accepts that the applicant is settled in Australia and has been away from her home country for some time. The applicant also referred to financial hardship if she cannot work. The Tribunal accepts that significant hardship would be caused to the applicant and her family if the applicant’s visa is cancelled and if the applicant was required to leave Australia.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant failed to disclose the birth of her child in the application form and failed to comply with s. 101 of the Act. The Tribunal has formed the view that there are grounds for cancelling the visa.
The Tribunal has formed the view that the applicant was indifferent about her compliance with the Migration Act because she had taken no steps to ensure the information that she submitted on the application form (even if those were completed by a relative on her behalf) were correct. The Tribunal rejects the applicant’s submission that she did not mislead insentiently or purposely or that she lacked knowledge. The Tribunal is of the view that no special knowledge is required to disclose the existence of a child. Importantly, the Tribunal does not accept the applicant’s argument that she did not wish her family to know about the child and therefore could not disclose that information. The Tribunal does not consider that the applicant’s interactions with her family justify the breach of the Australian immigration laws. The Tribunal has formed the view that the applicant had deliberately withheld information concerning the birth of her child because she was reluctant to inform her family about the child. That is, the applicant considered her interactions with family to be of greater import than her obligations under the Migration Act. The Tribunal considers that the circumstances in which the non-compliance occurred offer a strong reason why the visa should be cancelled.
However, there are other considerations that are against cancellation. Most significantly, there is an Australian citizen child for whom the applicant is the main caregiver and the Tribunal has formed the view that it is in the best interests of this child to remain with parents. It is significant in the Tribunal’s view that in this case, the child’s father had been recognised as being in need of protection and would be unable to travel with the applicant and that is a weighty consideration as the cancellation of the visa would lead to the separation of the child from his parent. The Tribunal also acknowledges the applicant’s evidence concerning the situation in her home country and that she would be subjected to harm if she was required to leave Australia, although the Tribunal is mindful that these matters may best be considered through a different visa process. For the purpose of this application, the Tribunal acknowledges that the applicant is fearful of harm and that country information supports the applicant’s evidence.
The Tribunal notes that considerable time has passed since the non-compliance. The Tribunal accepts that the applicant has made a contribution to the community and that she is well settled in Australia. She appears to be in a genuine relationship with an Australian permanent resident and has other close family living in Australia.
Overall, the Tribunal places greater weight on the applicant’s present circumstances, her relationship with her husband who could not accompany her to her home country, should the applicant be required to leave Australia, and the best interests of their minor child. Having regard to these matters, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.
Kira Raif
Senior Member
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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Natural Justice
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Procedural Fairness
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Remedies
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