Singh Bros QLD Pty Ltd (Migration)
[2020] AATA 5485
•10 November 2020
Singh Bros QLD Pty Ltd (Migration) [2020] AATA 5485 (10 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Singh Bros QLD Pty Ltd
CASE NUMBER: 1801888
HOME AFFAIRS REFERENCE(S): BCC2016/3994339
MEMBER:Warren Stooke AM
DATE:10 November 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 10 November 2020 at 1:54pm
CATCHWORDS
MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Retail Manager – tasks to be performed do not correspond to the occupation specified – petrol station operator seeking expansion to multiple sites – updated financial accounts – economic capacity to employ the nominee – terms and conditions of the position – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 January 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 27 November 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations because overall, the delegate was of the view that the majority tasks of the position are not those of an ANZSCO Skill Level 2 Retail Manager, rather they are more closely aligned with those of an ANZSCO Skill Level 4 retail supervisory position and found that the tasks to be performed in the position do not correspond to the tasks of an occupation specified in the relevant instrument.
The applicant appeared before the Tribunal on 25 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Maninder Kaur and the Director of the company, Harsh Singh Romana.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 5 January 2018 and that he understood the content and meaning of the decision. In this regard, the applicant stated that the nomination was declined because the nominee was not working as a Retail Manager but as a Retail Supervisor.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant provided evidence that the business subject to the nomination of a Retail Manager was the BP Bridge Street Rockhampton and that the business employed the Retail Manager, together with three employees and casuals. The business was described as a fuel station, with three double base pumps and that it also sells hot food and groceries.
The applicant stated that the business has a throughput of 120,000 litres and merchandise, including chips, drinks, ice, confectionary and gift cards.
The applicant gave evidence that the business is an independent site that has a fuel supply arrangement with BP and that the site was owned by three partners that commenced in 2009, with a capital investment in the site of $550,000.
The applicant stated that the business’s three directors own and operate three sites.
The applicant described his own role as looking for new businesses from 100 to 200 sites and that he visits the Rockhampton site weekly or fortnightly and that the Retail Manager uploads all the data (sales) and manages the site.
The applicant provided documentary evidence that the BP Bridge Street business was registered with ASIC on 12 September 2012, with Registration – ABN: 17 160 327 122.
The applicant provided evidence that the nominee was engaged on a contract on 21 November 2016 on a salary of $54,400 and again on 17 July 2019 on a salary of $55,400 that included a position description.
The applicant provided oral evidence that the nominee signed a 245AR declaration on 13 April 2017.
The applicant provided the Tribunal with a review of the nominated position by the Regional Certifying Body, Queensland Chamber of Commerce and Industry, which was dated 31 August 2017. The application nominated the nominee, Ms Maninder Kaur, for the position of Retail Manager, on a salary of $52,000. The RCB advised that the nominated position “does not satisfy”, which relates to the criteria 5.19(4). The applicant stated that the RCB thought they were the BP corporation and that he tried to clarify the matter, but he couldn’t get a response. He stated: “Don’t have this one right now”.
The applicant provided evidence from the Australian Taxation Office assessment that identified that the nominee was paid a gross salary of $44,012 in the financial year ending 30 June 2019.
The applicant provided the Tribunal with a summary payroll document that identified the nominee was paid a gross salary of $57,539 less tax of $13,526 that provided a net salary of $44,012 and that the superannuation payment was $5,486.20 for the financial year ending 30 June 2019, which appears from the documentation submitted to be the salary, net after tax.
The applicant stated that the consul operators were paid $28.00 per hour.
The applicant provided the Tribunal with the Australian Taxation Office assessments for the financial years 2017, 2018 and 2019, that included the following information:
2017
2018
2019
Taxable Net Profit
$122,844
$219,917
$194,076
Salary and Wages
$148,305
$212,471
$250,566
Superannuation payment
No entry
No entry
$6,694
The applicant provided the Tribunal with information contained in the financial accounts for the year 2020, that included the payment of salary and wages of $166,939.86 and superannuation contribution of $2,192.16.
The applicant described the duties of the nominated position as including the following tasks:
a.Looks after the store including sales and marketing to the company standard and designating specials;
b.The new service group and UCV provide specials, promotions and choice of 10 of the best promotions;
c.Advertising on the forecourt with the products to be included being decided by the nominee and purchased by the nominee;
d.Banking, using the company car;
e.Recruiting in company with the Director, where they select on experience;
f.Work hours of staff and rosters are provided by the nominee;
g.The nominee relieves the casuals on their breaks and where there are absences;
h.Inserts data entry, fuel sales and undertakes stock-takes;
i.Orders stock, including fuel.
The applicant provided the Tribunal with a position description prior to hearing, that included the following duties for the nominated position:
a.Deal with customer queries and complaints;
b.Open and close the store, as per the timing provided by the director;
c.Determine fuel levels, grocery stock levels and service standards of the business;
d.Helping directors in setting process for groceries and fuel;
e.Promoting and advertising business products and services;
f.Selling retail products and equipment hire services to customers;
g.Maintaining stock records and financial transactions;
h.Assisting directors in budgeting for the store;
i.Control selection, training, and supervision of staff;
j.Ensuring compliance with occupational health and safety regulations;
k.Assisting other staff members when required.
The applicant provided evidence that the Director calculates the payroll and staff payments from the business office.
The applicant stated that the Director taught the nominee how to order stock, occupational health and safety responsibilities and management of environmental issues, including cleaning.
The applicant stated that he told the nominee – “this is my budget” and trained her on sales, fuel and management of complaints regarding fuel.
The applicant stated that the nominee joined the business in May 2018 and that the position required a minimum of a Bachelor of Business, which is a requirement the nominee has met.
The applicant confirmed to the Tribunal that the nominee undertakes the following tasks, which are extracted from the descriptor of a Retail Supervisor – ANZSCO 621511:
a.ensuring that customers receive prompt service and quality goods and services
b.responding to customers' inquiries and complaints about goods and services
c.planning and preparing work schedules and assigning staff to specific duties
d.interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances [Undertaken in conjunction with the Director, who provides help]
e.instructing staff on how to handle difficult and complicated sales procedures
f.examining returned goods and deciding on appropriate action [The nominee contacts the Director, but undertakes a small stock-take every week; fuel daily and tank readings]
g.taking inventory of goods for sale and ordering new stock
h.ensuring that goods and services are correctly priced and displayed
i.ensuring safety and security procedures are enforced
In addition, the applicant stated that the nominee checks the expiry date of products; places products on promotion; and checks promotions from the supermarkets.
The applicant provided evidence that the business trading hours are from 6.00am to 7.00pm Monday to Friday and from 6.00am to 6.00pm on Saturday and Sunday. He also stated that the nominee works from 9.00am to 4.00pm Monday to Thursday and from 9.00am to 3.00pm on Friday.
The applicant provided evidence that the business employs the nominee, together with 2 Australian citizens and 2 students.
The applicant provided evident that the business recruits consul operators through a local social media page and that JobSeeker was used to recruit the nominee for the advised position of Retail Manager. He stated that in 2016 over a period of 1 month he received 5 applicants and in 2019 he received 140 applications, where the majority were Australian citizens.
The applicant confirmed that the applicant has a PTE English test score of 56.
Evidence of Mr Romana (Director)
The witness stated that he was a Director of the business, located in Sydney and that the business needed a Retail Manager at the service stations. He stated that there is a lot of responsibility, especially with the EPA guidelines and with the things that have to be done on a daily basis, there is a need for a qualified person.
The witness provided evidence, that since the employment of the nominee the business has increased, especially during the pandemic.
Evidence of Ms Kaur (Nominee)
The nominee provided evidence that she arrived in Australia in 2014 and that she possesses a Bachelor of Business from the Holmes Institute, Brisbane, which she completed in 2019.
The nominee provided evidence that she performs the following duties in her nominated position:
a.Responsible for the business operation;
b.Service to customers for positive growth;
c.Local supplies;
d.Keeping an eye on staff;
e.Problem resolution with customers;
f.Record stock and place expiring goods on sale;
g.Ensure staff are working well;
h.Record fuels;
i.Responsible for displays and promotions;
j.Monitor fuel price fluctuations and check and link to the local market;
k.Prepare rosters for staff and check timesheets.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The applicant lodged the application to nominate the nominee for the position of Retail Manager – ANZSCO Code: 142111 with the business on 22 November 2016 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1). The applicant provided evidence that a 245AR document was completed by the nominee on 13 April 2017.
The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control. The organisation structure includes 3 directors, who have equity in the ownership of 3 sites, including BP Bridge Road, Rockhampton, where 4 to 5 people are employed, including the nominee.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
The applicant provided evidence that the nominating business, Singh Bros Queensland was first registered with the ASIC on 12 September 2012 with the Registration – ABN: 17 160 327 122. In this regard, the business has three participating shareholders, two of whom, represented the company at the hearing.
Further, the business has demonstrated an economic capacity to support the employment of the nominee for a period exceeding two years based upon the before tax net profit earned by the business from 2017 to 2020.
The Tribunal finds that the business’s taxation returns for 2017 and 2018 do not include an entry that superannuation payments were made to employees, however, on 9 November 2020 the Representative provided the Tribunal with evidence of contributions to Hostplus..
The Tribunal notes that the nominee’s Australian Taxation assessment, submitted to the Tribunal, includes a gross salary of $44,041 in the financial year ending 30 June 2019, which appears to be the actual net income of the applicant, after tax. In this regard, evidence was provided to the Tribunal through a summary payroll document that identified the nominee was paid a gross salary of $57,539 less tax of $13,526 that provided a net salary of $44,012 and that the superannuation payment was $5,486.20 for the financial year ending 30 June 2019.
The business’s ATO completed submission for the financial year ending 30 June 2019 includes total superannuation contributions for all employees of $6,694, against total wage and salary payments of $250,566 for the business. As such, the Tribunal notes that there is an absence of confirmed data concerning superannuation payments of 9.5 per cent for the compliment of employees, based upon the evidence provided by the applicant, which will need to be clarified with the business accountant concerning the data entered, as it is evident the superannuation payments have been included in the gross salary and wages payments and should be specifically identified.
The Tribunal is satisfied that the requirement in r.5.19(4)(b) is not met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension having already been employed for 4 years and having first been employed in 21 November 2016.
The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 21 November 2016 and that the nominee has a contract of not less than 2 years. In this regard, the evidence identified that the nominee’s contract includes a salary of $54,400 and the applicant provided evidence that superannuation of 9.5 per cent is to be contributed to Hostplus.
Further, the contract becomes effective upon the nominee being granted a 187 visa.
The representative for the applicant submitted that the position was re-advertised in November 2019, where none of the 140 applicants were considered to be suitable, excepting the nominee, who was provided with a new contract in December 2019 and that the contract becomes effective upon the nominee being granted a 187 visa and remains effective for at least 2 years..
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal is satisfied that the terms and conditions of employment are no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the nominator or a person associated with the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 21 November 2016 [replaced in December 2019 following further market testing] and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement.
Further, the applicant attested that the nominee was provided with a Fair Work Information Statement at the time of engagement.
The Tribunal is satisfied that the Statutory Superannuation Guarantee contributions have been met by the employer, as requested by the Tribunal in correspondence of 27 October 2020, through contributions to Hostplus for the nominee. This was provided in evidence received by the Tribunal on 9 November 2020. Therefore, the requirements of r.5.19(4)(g) have been met.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, and that the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that the business is located in ‘regional Australia’ and that the applicant applied for Regional Certification, however the application was refused by the Chamber of Commerce and Industry Queensland for the occupation of Retail Manager (Retail Manager – ANZSCO Code: 142111) for the nominee, Ms Maninder Kaur on a salary of $52,000 (at that time) on 31 August 2017. The applicant stated that he believed the nomination was refused because the CCIQ thought the nomination was from the BP corporation.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal finds, whilst having regard to the advice provided by the CCQI as the appropriate RCB for Rockhampton, it has reached its own conclusion about the matters that are the subject of the RCB’s advice given that the nominated position of Retail Manager – ANZSCO 142111, is located in Regional North Queensland. As such, the Tribunal is of the view that the nomination complies with the expectation that the relevant criteria has been met. In this regard, the Tribunal accepts the explanation provided by the applicant that he believed there was some confusion concerning the application as relating to the international BP corporation, which is only responsible for fuel supply and is not the independent operation of the BP Bridge Road site in Rockhampton that is operated by the applicant.
Further, the Tribunal is satisfied, based upon the evidence, that there is a genuine need for the position of Retail Manager to work under the direct control of the business owner/directors. In this regard, the business has a multitude of operating sites and the directors have minimal engagement in the day to day operation of the business, with the nominee being responsible for primary decision making.
The Tribunal is satisfied that the position was advertised locally and could not be filled by an Australian citizen or permanent resident who is living in the same local area with the equivalent skills and competencies of the nominee, who possesses a Bachelor of Commerce degree and had extended experience in the position prior to engagement. In this regard, the applicant produced evidence of the consideration of 140 applicants for the position and the respective assessments, prior to offering the applicant a contract, in December 2019, which was renewed on 17 July 2020, with a salary of $55,400 for at least 2 years and conditional upon the grant of a 187 Transitional visa.
Additionally, the Tribunal is satisfied that the scale of the business, with a net profit (after tax) of $194,076 in 2019, warrants the engagement of a Retail Manager, particularly given that one of the Directors is resident in Sydney and that the Director giving evidence, operates several other retail businesses and requires a Retail Manager for the BP Bridge Road, Rockhampton business to manage the full scope of the operation on behalf of the Directors. As such, the Retail Manager operates the business that has a staff of up to 4 employees reporting to the Retail Manager and who reports directly to the owners.
The Tribunal is satisfied, based upon the evidence of the applicant, that the position includes all of the tasks outlined in the position descriptor for a Retail Manager – ANZSCO Code: 142111. In this regard, the applicant confirmed to the Tribunal that the nominee performs the following tasks:
a.determining product mix, stock levels and service standards;
b.formulating and implementing purchasing and marketing policies, and setting prices;
c.promoting and advertising the establishment's goods and services;
d.selling goods and services to customers and advising them on product use;
e.maintaining records of stock levels and financial transactions (however the Director does provide assistance with this activity);
f.undertaking budgeting for the establishment (however the Director does require the assistance of the nominee with this activity);
g.controlling selection, training and supervision of staff;
h.ensuring compliance with occupational health and safety regulations.
The Tribunal has considered the comparison of the ANZSCO descriptor for the occupation of Retail Supervisor – ANZSCO Code: 621511 and is satisfied that whilst the position includes several of these tasks, the nominee also carries out the tasks of a Retail Manager – ANZSCO Code: 142111 in the breadth of the role performed by the nominee.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Warren Stooke AM
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i) both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
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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Statutory Construction
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Procedural Fairness
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Remedies
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