Singh (Migration)
[2019] AATA 6876
•5 July 2019
Singh (Migration) [2019] AATA 6876 (5 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Sukhman Singh
CASE NUMBER: 1727863
HOME AFFAIRS REFERENCE(S): BCC2017/3134909
MEMBER:T. Quinn
DATE:5 July 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 05 July 2019 at 11:18am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entrant – decision without hearing – incentive to remain onshore – lack of academic progress – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 500.212STATEMENT 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 (‘the delegate’) on 6 November 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 30 August 2017 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 6 November 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 11 November 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
More than 19 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 27 March 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to the s359(2) letter on 9 April 2019 which was within the prescribed time period. In that response, the applicant elected to have their matter decided without a hearing.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department and all submissions filed with the Tribunal by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.
[1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant in this case is a 30 year old male Indian citizen who first arrived in Australia on 19 May 2014 on a TU-573 Higher Education Sector Student visa which valid until August 2017.[2] The applicant has only departed Australia once, in December 2018, since his arrival in May 2014.[3]
[2] See delegate’s decision and applicant’s response to the s359(2) letter.
[3] See applicant’s response to the s359(2) letter.
Prior to coming to Australia, the applicant completed secondary school in India in April 2009.[4] It is not clear to the Tribunal how the applicant spent his time between 2009 and his arrival onshore in 2014.
[4]See applicant’s response to the s359(2) letter.
The applicant’s application which is the subject of this review is for a further Higher Education Sector visa to study a Certificate III and IV in Commercial Cookery and a Bachelor of Business.
The applicant’s response to the s359(2) letter indicates he has undertaken the following study:
a.Certificate IV in Small Business from July 2017 to January 2015;[5]
b.Certificate IV in Business and Management from December 2015 to June 2016;
c.Certificate III in Commercial Cookery which he commenced in October 2017 but states he is ‘studying now’.
[5]See applicant’s response to the s359(2) letter and corroborating evidence supplied by the applicant to the Department at pages 46-8 of the Department File.
The Tribunal is troubled by this evidence. There appear to be a number of issues for the applicant’s application. The first is that there is no evidence that the applicant studied between January and December 2015. The second is that the applicant’s response to the s359(2) letter appears to indicate he did not study between June 2016 and October 2017, a period of 15 months which is very significant in circumstances where an individual’s residence onshore is on the basis of a student visa, yet they are not studying. The third is that in the Department File, the applicant has supplied a Certificate IV in Business and a statement of attainment of six competencies in a Diploma of Management dated 5 January 2017 but no document reflecting the abovementioned ‘Certificate IV in Business and Management’[6] – it is not clear to the Tribunal if the applicant’s response to the s359(2) letter simply includes a typographical error or if he is attempting to combine two courses so as to avoid listing a Diploma of Management as a course that he commenced but did not complete. The lack of clarity in the applicant’s submissions in this regard raises questions for the Tribunal about whether he is being forthright in his evidence. The fourth is that the Certificate III in Commercial Cookery ought to have been completed in October 2018, even on the applicant’s own evidence, being the confirmation of enrolment filed by the applicant with the Tribunal on 9 April 2019. The fifth is that the applicant ought to have also commenced and completed his Certificate IV in Commercial Cookery at the time of his response to the s359(2) letter, again, on the basis of his own evidence, being the confirmation of enrolment filed but he applicant for this course with the Tribunal on 9 April 2019 which listed a commencement date of 8 October 2018 and a completion date of 5 April 2019. The sixth is that the applicant’s initial student visa was a Higher Education Sector visa and it would appear that in a period of in excess of five years, he has not undertaken any study whatsoever in the Higher Education Sector. These issues raise serious concerns for the Tribunal about the true nature of the applicant’s intentions in his residence onshore and his student visa applications.
[6] See pages 30-32 of the Department File.
The applicant has supplied a confirmation of enrolment for a Bachelor of Business and a letter from his course provider indicating a start date in July of this year. However, the confirmation of enrolment and letter both bear a date of August 2017 and the issues in the immediately preceding paragraph would indicate his commencement of this course in July 2019 is unlikely. The Tribunal considers the applicant’s academic progress is not what one would expect of a genuine student and is very concerned by the considerable periods in which the applicant appears to have failed to study at all. This is in breach of the conditions of his student visa, requiring the applicant be engaging with his study and making adequate course progress.
In his undated, untitled genuine temporary entrant statement[7] (‘the GTE’), the applicant claims that he came to do a Diploma of Business leading to a Bachelor Degree but then found ‘that worldwide Business Industries are undergoing recession and there are no jobs in this industry… I found that Hospitality is one industry which is fast growing… Therefore, I decided to change my course… I am looking forward to finishing my course on time and would like to join good five-star hotel at a middle Management position in my home country’. The Tribunal is troubled by these statements for a number of reasons. The Tribunal allows for reasonable changes to career and study pathways and would accept the applicant’s change from Business to Hospitality. However, the applicant has continued his enrolment in the Bachelor of Business and in his response to the s359(2) letter states he intends to complete that degree. This is not consistent with the statements made by the applicant in the GTE. Further, if the applicant had engaged as proposed with his Cookery courses, he would now have completed them and be in a position to return home, reunite with his family and put into motion his plan to seek employment at a hotel. The Tribunal accepts that the proposed cookery courses may be relevant to and assist and improve the applicant’s employment prospects in the hotel industry upon his return to India. It does not, however consider that a Bachelor of Business is sufficiently relevant or would assist or improve the applicant’s employment prospects in his stated goal such that the time and expense of undertaking such study in Australia is outweighed.
[7] See page 29 of Department File and delegate’s decision.
In the GTE, the applicant also outlines the reasons for studying in Australia including international recognition and exposure. The Tribunal accepts these submissions and considers
The applicant’s cousin has supplied a bank account and statement indicating he is supporting the applicant financially in Australia.[8] In his response to the s359(2) letter, the applicant states he attends the Sikh Temple every Sunday. The applicant has otherwise put forward very little material regarding his personal ties to Australia. The length of his stay in Australia for in excess of five years suggests that he has a preference to remain. It is reasonable to conclude that, after more than five years, the applicant has cultivated a satisfactory life and has established strong ties to the Australian community. As each day passes, those ties strengthen.
[8] See pages 44 and 50 of Department File.
The applicant has been working at Hunt Formwork & Scaffolding since July 2017, earning $18,000AUD per annum. His expenses in Australia are $12,000AUD per annum and he does not hold any assets.[9] The Tribunal notes that the United Nations Human Development Index ranks India as 130th in the world as compared to Australia’s ranking of 3rd in the world.[10] This, in combination with the excess income compared to expenses that the applicant is earning in Australian dollars, causes the Tribunal to consider that the applicant’s economic circumstances in Australia are acting as a significant incentive for him to not return to his home country.
[9] See applicant’s response to the s359(2) letter.
[10]See Table 1 of United Nations’ Human Development Indices and Indicators 2018 Statistical Update <>
The Tribunal notes that the applicant has both parents, two brothers and two sisters in India.[11] He states that he calls them and speaks to them on face time in his response to the s359(2) letter but does not specify the regularity of this contact. The applicant returned home for 32 days in December 2018 to visit his family. The Tribunal accepts that the applicant’s family members may serve as a significant incentive for the applicant to return to his home country but, given the length of time he has been onshore for, it appears to the Tribunal that any such incentive is outweighed by the applicant’s desires and incentives to remain onshore.
[11] See applicant’s response to the s359(2) letter.
There is no evidence before the Tribunal that the applicant has had any travel, visa or immigration issues in the past, save for the issues in relation to his visas in coming to Australia outlined above.
The applicant states he does not have any potential military service or political or civil unrest concerns in India.[12] The Tribunal accepts this evidence.
[12] See applicant’s response to the s359(2) letter.
The applicant states that he expects to receive approximately $3,000AUD equivalent per month using the qualifications gained.[13] The Tribunal finds this evidence implausible given the average income per capita per annum in India in 2018 was approximately $2,300AUD equivalent.[14]
[13] See applicant’s response to the s359(2) letter.
[14] <>
The applicant’s application and submissions do not satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on the length of the applicant’s time onshore, being in excess of five years, the periods of lack of academic progress which are considerable, the inconsistent nature of his submissions and evidence, the fact that he ought now to have completed the cookery courses and be in a position to return to his home country and put into motion his plan to seek employment in a hotel and the economic incentives he has to remain onshore. The Tribunal is concerned that the visa is being sought primarily to maintain residence in Australia.
Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Therefore, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
T. Quinn
MemberAttachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton
Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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