Singh v Minister for Immigration
[2017] FCCA 1961
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1961 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – show cause hearing – whether the applicant advised the Tribunal he would be unable to appear at the Tribunal hearing by telephone – no arguable case raised – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 360, 362B, 368, 476 Migration Amendment Act2014 (Cth) |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 |
| Applicant: | SANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1315 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 24 July 2017 and 8 August 2017 |
| Date of Last Submission: | 8 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms J Strugnell of Minter Ellison |
ORDERS
The application made on 20 April 2017 is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1315 of 2017
| SANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 2 May 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 April 2017 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a skilled (residence) (Class VB) visa to the applicant.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court book – “CB”, “RE1”).
b)The applicant’s affidavit of 27 July 2017 with annexures. I note the Minister objected to [16] of the affidavit and to the documents at annexure “SS1” on the basis of relevance. These were admitted on the basis that the parties could make submissions as to the weight of that evidence.
Background
The applicant applied for the visa 29 June 2010 (CB 1 to CB 52). There is no dispute between the parties that the subclass relevant to this visa application was subclass 886. This meant that the applicant was required to satisfy the criteria set out at Part 886 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) at the relevant time.
The delegate refused the visa application on 30 October 2015 (CB 112 to CB 122). The delegate found that one of the mandatory requirements for the grant of the visa was that set out at cl.886.213 of Schedule 2 to the Regulations, which was, at the relevant time, in the following terms:
“886.213
The applicant has competent English”
This criterion required the applicant to satisfy the decision-maker that he had “competent English”. Regulation 1.03 of the Regulations provided that “competent English” have the meaning given to that term by reg.1.15C of the Regulations.
At the relevant time, reg.1.15C of the Regulations was in the following terms:
“1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A)specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B)in a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.”
In essence, the applicant was required to provide evidence that he had sat for, relevantly, an International English Language Test System (“IELTS”) test at any time, from two years before lodging the application, and up to the time of the Tribunal’s decision, and achieved a certain “test score” in each of the four relevant test components (a score of six).
The applicant had not sat for any such test prior to lodging his visa application. However, with his application, through his representative, the applicant advised that he would sit for such a test and provide the test result as required (CB 47.7). Subsequently, on 12 August 2010 (referred to as 15 August 2010 in the delegate’s decision), he provided an IELTS test booking receipt to sit the test on 25 September 2010 (and see CB 72 to CB 74).
On 17 November 2010 he provided another test booking receipt for a test scheduled for 26 February 2011 (CB 75 to CB 76). There is no evidence that he provided the results of either test to the Minister’s Department.
It is not clear what relevantly occurred, if anything, between 26 February 2011 and 17 August 2015. On 17 August 2015, and sent by email to the applicant’s representative authorised for the purpose of receiving communication on his behalf, the Minister’s department sent the applicant a request that he provide certain documents, including evidence of his English language ability (CB 78 to CB 88).
The applicant provided his English language test results on 8 September 2015 for the test he sat on 13 June 2015 (CB 89 and see CB 120.3). The delegate found that he still had not achieved the requisite test results so as to demonstrate he had “competent English” (CB 120.3).
The application was refused by the delegate because the applicant was unable to satisfy the criterion at cl.866.213 of Schedule 2 to the Regulations, and with reference to reg.1.15C of the Regulations.
The applicant applied for review to the Tribunal on 12 November 2015. (CB 123 to CB 124). He continued to be represented by a registered migration agent.
By letter dated 24 February 2017, and sent by email to the applicant’s representative, the Tribunal invited the applicant to attend a hearing scheduled for 20 April 2017 (CB 137 to CB 148).
The letter specifically drew the applicant’s attention to him not having provided any evidence that he had satisfied the requirement for “competent English”. The Tribunal asked the applicant to provide evidence that he satisfied that requirement, or evidence that he had an English language test booked, by 3 March 2017. He was told that that booking should be before, or soon after, the date of the scheduled hearing (CB 140).
It appears that at that time, the applicant was living in Canberra. The Tribunal member was in Sydney. The Tribunal’s letter of 24 February 2017 advised the applicant that arrangements would be made for him to appear by telephone. It also asked the applicant to confirm that the mobile telephone number he had provided was his preferred contact number, and to ensure that he was available for up to two hours from the scheduled starting time of the hearing (CB 139.5).
The applicant responded by email from his representative on 24 February 2017 (CB 149 to CB 150). The representative advised that the applicant had booked another English language test scheduled for 4 March 2017. Further, he confirmed that the mobile number held by the applicant was “the right number” (CB 149.3).
On 11 April 2017 at 11:00am, that is, nine days before the scheduled hearing, the Tribunal sent a reminder message about the hearing to the applicant’s mobile telephone number (CB 151). A second reminder was sent on 19 April 2017 at 11:00am. That is, the day before the hearing (CB 151).
The applicant did not appear at the hearing on 20 April 2017. It is to be noted that the hearing was scheduled for 9:30am. The Tribunal recorded that it attempted to ring the applicant on the number he had provided and subsequently confirmed through his representative (see above at [17]). The Tribunal made four attempts between 9:18am and 10:23am to ring the applicant. This is corroborated by a contemporaneous migration hearing record (at CB 152 and CB 153 and see also [7] at CB 163). This is also confirmed and corroborated by the attachment at annexure “SS2” to the applicant’s affidavit of 27 July 2017, which contains the relevant telephone account for the applicant’s mobile telephone number (that which was provided and confirmed as “right” by the applicant’s representative) for the relevant period (see further below).
In its decision record, the Tribunal noted that the applicant did not answer his mobile telephone ([7] at CB 163). Further, the Tribunal noted that the applicant had not contacted it to seek a postponement of the hearing. Nor had he subsequently contacted the Tribunal to explain why he did not answer his mobile telephone at the scheduled time (that is, the time notified to the applicant by the Tribunal in the appropriate way, and confirmed on two subsequent occasions, see above at
[16] – [18]).
The Tribunal proceeded to make its decision. It’s reasoning as set out at [8] – [9] (at CB 163) of its decision record was as follows:
“[8] The Tribunal is satisfied that the applicant was invited to appear before the Tribunal to give evidence and present arguments under section 360 of the Act. The Tribunal is satisfied that the applicant was sent a notice under section 360A of the Act giving the day and the time on which he was scheduled to appear. The Tribunal is satisfied that the notice met all of the requirements of section 360A. The Tribunal is satisfied he received the notice because it received a response later the day it was sent, confirming his mobile telephone number. The Tribunal also notes he was sent SMS reminders, on 11 and 19 April 2017, of the hearing date. The Tribunal finds that the applicant did not appear before the Tribunal by conference telephone on the scheduled day, at the scheduled time.
[9] Where an applicant is invited under section 360 to appear before the Tribunal and the applicant does not appear at the scheduled time, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it (section 362B). The applicant responded to the hearing invitation indicating he would take part in the hearing by conference telephone but he did not answer his mobile phone. He has not sought a postponement of hearing. The Tribunal will therefore not use its discretion to reschedule the applicant's appearance (subsection 362B(2)). The Tribunal will now proceed to make a decision on the review without taking further action to allow or enable the applicants to appear before it.”
[I note the reference to “applicants” in the last sentence of [9] at CB 163 reproduced above, in the circumstances, should be understood as a reference to the “applicant”.]
The Tribunal refused the application for the visa because it found that the applicant had not demonstrated that he had “competent English”, as defined in the Regulations, and which was a mandatory criterion for the grant of the visa.
The applicant made his application to this Court on 2 May 2017. The grounds of the application were stated to be “please see attached affidavit”. That affidavit contained one paragraph as follows:
“1. That Department of Immigration and Border protection had refused my Skilled (Residence) (Class VB) Subclass 886 visa application. I lodged review application with Administrative Appeal Tribunal (AAT). AAT had affirmed the Department's decision to refuse the visa application. AAT has affirmed Department's decision (See attached Annexure A). I believe AAT made Judicial error which needs to be rectified.”
[Errors in original.]
The applicant appeared before a Registrar of the Court on 22 May 2017. Given what was said to be the sole ground of the application, the Registrar referred the matter for directions before me on 30 May 2017.
The applicant appeared on that date. Given the state of the ground of the application, I explained the need for the applicant to at least attempt to identify some legal issue that could be heard by the Court. An order was made giving the applicant the opportunity to file and serve an amended application on or before 12 July 2017. The matter was set down for further directions on 19 July 2017.
No amended application was filed by the applicant by 12 July 2017, or for that matter, by 19 July 2017.
On 19 July 2017 the applicant again appeared at directions, this time by telephone. He stated he had booked another IELTS test. Further, that no amended application had been filed, nor did he did he give any indication that he intended to file one.
Plainly, even if the applicant “passed” the IELTS test now, it would not assist him in revealing jurisdictional error in the Tribunal’s decision.
The matter was set down for a show cause hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules) on 24 July 2017.
At the hearing on 24 July 2017, the applicant appeared in person. He was assisted by an interpreter in the Punjabi language.
The applicant claimed before the Court that he had been sick on the day of the Tribunal hearing and that he had “rung” the Tribunal to advise it of that fact. He claimed that his first call “rang out”. However, on the second call, a little while later, he spoke to a person, whose name he could not remember, who told him there was no record of his case before the Tribunal.
The applicant stated that he had evidence of his calls in the form of his telephone account for his mobile telephone. I adjourned the hearing to enable the applicant to file evidence by way of an affidavit, annexing the relevant part of his telephone account.
The applicant did file an affidavit on 31 July 2017. His evidence is that he was “very sick” on 19 April 2017, so he contacted his doctor and made an appointment to see him on 24 April 2017. In this regard, the relevant medical certificates are said to be annexed to his affidavit of 27 July 2017 at annexure “SS1” (see further below).
The applicant appeared again in person at the resumption of the hearing. He was assisted by an interpreter in the Punjabi language.
The issue before the Court is whether the grounds of the application raise an arguable case for the relief the applicant seeks. I note in this regard, that the applicant only seeks an order that the Tribunal’s decision be quashed. Presumably, he also wants it remitted for reconsideration.
If the Court cannot be satisfied that an arguable case is raised against the Minister, the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
At the resumption of the hearing on 8 August 2017, the applicant pressed his claim that he had “rung” the Tribunal, and that he had provided evidence to support that assertion. He also made submissions that he had been ill for some time, and that he had been so unwell at the time of the Tribunal hearing that he was unable to answer the Tribunal’s telephone calls.
There are a number of difficulties for the applicant in light of the evidence before the Court, including the evidence he has presented.
First, the first medical certificate is dated 26 July 2017 (“the first medical certificate”). This date is some three months after the scheduled hearing date before the Tribunal. It states that the applicant attended at the doctor’s surgery on 16, 24 and 28 April 2017. That is around the time of the scheduled Tribunal hearing (that is, 20 April 2017).
The first medical certificate states that in “April and May 2017”, the applicant was being “treated for symptoms of tiredness” attributed to vitamin B12 deficiency.
However, the first medical certificate says nothing about the applicant’s capacity as at 20 April 2017, or the days leading up to that date, to call the Tribunal to advise that he was not well enough to participate at the hearing by telephone.
The second medical certificate is dated 23 July 2017 (“the second medical certificate”). It predates the first medical certificate by three days, and so also postdates the scheduled Tribunal hearing by about three months. The certificate says that the applicant was diagnosed with a “significant B12 deficiency in 2015”. The certificate states that such a deficiency can cause poor memory and concentration, and can have “negative effects” on brain function. It does not say that the applicant had such conditions, and was prevented by these conditions on 20 April 2017, or in the days preceding that date, from receiving a telephone call from the Tribunal or from making a call to the Tribunal to advise of any difficulty.
The second medical certificate also reports that the applicant as at 23 July 2017, complained of “headache and dizziness” and that “in the past he has had severe iron, vitamin D def[i]ciency” and “these can indeed negatively effect his ability to concentrate and mental performance (sic)”.
The certificate says nothing about the applicant’s capacity as at 20 April 2017 to telephone the Tribunal, or to receive a telephone call from the Tribunal in order to participate in the Tribunal hearing. Taking the certificate at face value, the highest that can be said, is that there was the potential for the applicant to have poor concentration in the past two years. However, it says nothing about his actual capacity as at 20 April 2017, to call the Tribunal or answer a telephone call from the Tribunal.
Nor does it, in the context of the Tribunal’s reminders to the applicant of the scheduled hearing (see CB 151 and [18] above), explain why the applicant did not inform the Tribunal, in the days leading up to 20 April 2017, of any difficulties he was experiencing. This is in circumstances where, on his own evidence, the applicant called his doctor on 19 April 2017 to make an appointment.
The third medical certificate is dated 18 May 2017 (“the third medical certificate”). It predates the first and second medical certificates by some two months. The third medical certificate indicates that the applicant attended at the relevant medical centre on 18 May 2017, and further states that the applicant “was diagnosed with severe vitamin D, iron and b12 (sic) deficiencies all simultaneously” in 2015. The medical certificate then outlines possible symptoms of such a diagnosis.
The third medical certificate does not state that the applicant suffers from such symptoms, merely that he “does complain” of “such symptoms” (without identifying which ones) “from time to time”. Again, although the third medical certificate predates the first two medical certificates by some two months, it postdates the scheduled Tribunal hearing by approximately one month. Further, it also says nothing about the applicant’s actual capacity as at 20 April 2017 to participate in the Tribunal hearing by telephone.
The applicant’s telephone account shows that he did make two calls to the telephone number (02) 9276 5000 at 4:10pm and 4:18pm on 21 April 2017 (see the affidavit of the applicant of 27 July 2017 at annexure “SS2”). This is the Tribunal’s general number (see CB 129.10).
The evidence before the Court is that the Tribunal made its decision on 20 April 2017 at 12:20pm (CB 162). Pursuant to s.368(2) of the Act, which provides that a decision on the review is “taken to have been made by the making of the written statement” and “on the day, and at the time, the written statement is made”.
Section 368(2A) of the Act provides that the Tribunal “has no power to vary or revoke a decision … after the day and time the written statement is made”.
On the evidence before the Court, the Tribunal decision was made on 20 April 2017 at 12:20pm (CB 162). There is no evidence before the Court, nor does the applicant assert that he contacted the Tribunal before that date, or before that time, to notify it of his difficulty in attending. Noting also that attendance was to be effected by telephone, and not physically at the Tribunal’s offices. Further, notwithstanding the indication from the applicant on a previous occasion before the Court that he “rang” the Tribunal on the day of the hearing, the applicant confirmed that the evidence now before the Court showed that he made the attempt to ring the Tribunal on 21 April 2017, not on 20 April 2017 (that is, the day after the scheduled hearing).
On the applicant’s own evidence, by the time he did attempt to contact the Tribunal, the Tribunal had no power to vary or revoke its decision.
I also note that the Tribunal’s decision was sent to the applicant by email to his representative authorised for that purpose, on 21 April 2017 at 2:18pm (CB 156 to CB 164). There is nothing in the applicant’s evidence to say his representative did not receive that correspondence at that time.
On his own evidence, the first of the two telephone calls to the Tribunal by the applicant was made at 4:10pm on 21 April 2017. That is after the Tribunal’s decision was beyond recall. The applicant’s complaint would not raise an arguable case even on the state of the law before the introduction of the current s.368(2) of the Act on 28 May 2014 (Migration Amendment Act2014 (Cth)).
At a show cause hearing pursuant to Part 44 of the FCC Rules, the applicant is confined to the relief sought and the grounds mentioned in the application (r.44.13(1) of the FCC Rules).
The applicant’s ground, as currently stated (even reading the word “judicial” as “jurisdictional”), is so devoid of any particularity, it is meaningless. The applicant’s belief is, at best, born of hope, but it cannot be said to be an understandable allegation of legal error on the part of the Tribunal.
As it stands, the ground lacks merit. The application should, in light of r.44.12 of the FCC Rules, be dismissed on that basis.
I did consider whether to dispense with the operation of r.44.13 pursuant to r.1.06 of the FCC Rules. However, on the evidence, I cannot see any reason to do so.
In the current case, and as set out above, the Tribunal decided to proceed to a decision without taking further action when the applicant failed to appear at the hearing before it. That is, the applicant failed to answer his mobile telephone in spite of a number of reminders to do so (and see [18] above).
The applicant was invited to a hearing pursuant to s.360 of the Act. There is nothing in the evidence before the Court to indicate that the Tribunal did not comply with the relevant statutory and regulatory requirements in giving the applicant notice of the scheduled hearing.
When the applicant did not appear, the Tribunal proceeded to exercise the discretion available to it pursuant to s.362B(1A)(a) of the Act, to make a decision on the review, without taking further action to enable the applicant to appear before it.
The capacity of the Tribunal to consider the exercise of the discretion to proceed in the absence of the applicant was enlivened, given that the applicant had been invited pursuant to s.360 of the Act to appear at the hearing, and did not appear at the scheduled time and on the scheduled date (s.362B(1) of the Act).
It is clear that the exercise of such a statutory discretion must be reasonable (Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”)).
In the current case, the Tribunal did provide an “intelligible justification” and explanation for its proceeding to a decision on the review (Li at [76]). In essence, the Tribunal found that the applicant had been given reasonable notice of the hearing, and that the applicant’s appearance was to be facilitated by the use of calling his mobile telephone on the number he had provided, and which he confirmed through his representative, was “the right number” for that purpose (and see [17] above).
Through his representative, the applicant confirmed receipt of the invitation to the hearing, and the letter informing him of how his appearance was to be facilitated. The Tribunal also found that he had subsequently been sent two text messages directed to the mobile telephone phone number he had provided, reminding him of the scheduled hearing date, and to “check the hearing invitation to confirm details” ([8] at CB 163 and see CB 151).
The Tribunal reasoned that it was appropriate for it to proceed to a decision in the following circumstances. The applicant had acknowledged receipt of the invitation and had responded, through his representative, to say he would attend by telephone. He was sent two reminders by the Tribunal. However, he then did not answer his mobile telephone, nor did he otherwise seek any postponement of the Tribunal hearing.
In the current case, the Tribunal has provided an “intelligible justification” for the exercise of its discretion. In the circumstances, it was reasonably open to the Tribunal to proceed in the way that it did.
There was nothing before the Tribunal as at the time of the consideration of the exercise of its discretion, to indicate that the applicant had any difficulty in answering his mobile telephone when he was called on the morning of 20 April 2017.
The Tribunal properly understood, in light of the Regulations, that the applicant could have provided such evidence up to the time of the Tribunal’s decision (see [11] at CB 164). The Tribunal put the applicant on notice of this in its letter of invitation to the hearing (CB 140).
At the conclusion of the hearing before the Court, the applicant stated that he wanted to hand up a document to the Court. It appeared that that document was the result of an IELTS test for which the applicant had recently sat. I understood it to be after the date of the Tribunal’s decision. As I told the applicant, even if he had now passed the IELTS test, the Court was unable to assist him, because the Court was unable to make a decision on whether or not he should be granted a visa. The relevant time for him to have provided such a document to the Tribunal was up to the time of the Tribunal’s decision.
On 9 August 2017, after the conclusion of the hearing and the matter had become reserved, the applicant filed a copy of his affidavit of 27 July 2017. The copy of the affidavit however, omits [5] – [17] from the body of the affidavit, and replaces page 8 of annexure “SS1” with what appears to be a copy of his results from an English test he sat on 31 July 2017. That affidavit also omits annexure “SS2”. As the applicant did not have any leave to file a further affidavit, nor has the Minister had any opportunity to address it, that English test result is not in evidence before the Court. In any event, for the reasons set out above at [70], it cannot assist the applicant now.
The Tribunal had taken reasonable steps to notify the applicant of the hearing date and time, and also sent two reminders to the applicant’s relevant mobile telephone number in this regard (see [18] above).
The applicant’s evidence is that he was sick on 19 April 2017, and was unable to contact the Tribunal by telephone, presumably on that date, and on 20 April 2017. However, none of this evidence was put before the Tribunal at the relevant time. In any event, the medical certificates were drafted, and dated, well after the time of the exercise of the Tribunal’s discretion and the date of its decision.
As to the Tribunal’s ultimate decision, it was clear that to be granted the visa, the applicant was required by the Regulations to provide evidence that he had “competent English”. The Tribunal’s finding that he had not done so, was reasonably open to it in the circumstances before it.
Conclusion
In all, there is no arguable case of jurisdictional error in the Tribunal’s decision. I cannot see in the circumstances presented that any factor calls for the waiver of r.44.13 of the FCC Rules. The application should be dismissed pursuant to r.44.12 of the FCC Rules. I will make that order.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 18 August 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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