Solanki v Minister for Immigration and Anor
[2020] FCCA 2918
•29 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOLANKI v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2918 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – genuine temporary entrant criterion – whether Tribunal misunderstood criterion – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 499 Migration Regulations 1994 (Cth), cl.500.212 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | JAGROOP SINGH SOLANKI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 14 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 27 October 2020 |
| Date of Last Submission: | 27 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 29 October 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 14 of 2020
| JAGROOP SINGH SOLANKI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He arrived in Australia on 17 August 2015 as the holder of a Student (Class TU) (Subclass 573) visa (Court Book (“CB”) 51).
On 9 March 2018, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-42). He initially indicated that he was enrolled to study a Bachelor of Business. However, on 5 April 2018, he advised that he was enrolled in a Bachelor of Community Services (CB 43-44).
On 23 April 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 49-52). The delegate found that the applicant did not meet cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he “was not a genuine temporary entrant”.
The applicant sought review of the delegate’s decision on 11 May 2018 at the Administrative Appeals Tribunal (the “Tribunal”) (CB 53-56).
On 17 June 2019, the Tribunal invited the applicant to provide information relating to his current enrolment status and whether he was a “genuine temporary entrant” (CB 61-67 and 69-70).
The applicant responded to the Tribunal’s request and provided further information (CB 71-82).
On 8 August 2019, the applicant attended a hearing before the Tribunal (CB 94-96). He gave the Tribunal current confirmation of enrolments in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Overhauling and a Diploma of Automotive Technology (CB 91-93).
On 10 December 2019, the Tribunal affirmed the decision not to grant the applicant the visa (CB 103-108).
On 13 January 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
Tribunal’s Decision
The Tribunal’s decision is 6 pages long and spans 34 paragraphs.
At [1]-[7], the Tribunal outlined the procedural background to the matter. The Tribunal then summarised the relevant legal principles and, relevantly, set out cl.500.212, 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.
The Tribunal also summarised Direction 69 (a Direction issued under s.499 of the Act which the Tribunal is required to have regard to) (at [10]-[11]).
The Minister’s written submissions filed on 10 June 2020 accurately summarise the balance of the Tribunal’s decision. The Court adopts those submissions as its own. With some minor alterations and additions, those submissions provide as follows.
The Tribunal found that, whilst the applicant had family in India, he had not returned to visit them since arriving in Australia in August 2015. On that basis, the Tribunal found that the applicant did not have strong family ties or a strong incentive to return to India (at [12]-[13]).
The Tribunal found that the applicant’s submissions that he proposed to work as a mechanical engineer and would earn $4,000-$8,000 per month in India was uncorroborated by any evidence (at [15]).
The Tribunal also found that there was limited evidence regarding the economic circumstances of someone in the applicant’s circumstances in India (at [16]).
The Tribunal recorded the applicant’s evidence that he had “lots of” Indian friends in Australia and that, while he did not own any assets in India, his family did have assets (at [14] and [17]-[18]).
The Tribunal also noted that the applicant had worked at a car wash and as a courier in Australia and that he shared a house with two other people (at [26]).
The Tribunal then considered the applicant’s study history, as follows:
19. He did not have a current Certificate of Enrolment (hereinafter referred to as COE) at the time that he replied to the request for further information by the Tribunal on the 1 July 2019. He responded to information sought by the Tribunal pursuant to Section 359(2) of the Act which specified that he needed to produce his COE. He did not produce the same until the date of the hearing. He told the Tribunal at the hearing that he had obtained his Certificate the week before the Hearing. The Tribunal does not attach a lot of weight to the fact that the applicant was able to obtain a COE just before the hearing in favour of his application for review as it was simply to ensure that he complied with the determinative requirement for his application to succeed. His COE was for a Course being Certificate Ill in light vehicle Mechanical Technology at the Skilled Services Australia. The COE was not consistent with his previous study in Australia and may have been obtained by him simply to present to the Tribunal at the hearing.
20. He had previously been enrolled in various courses that he did not start in Australia. He had completed a Bachelor of Technology in Mechanics from June 2011 to December 2014 at the Lingaya University in his home country. He had passed the first English Course being Academic English Course 4 which he completed in October 2015. He did not pass course 5. He was enrolled in a Master of Engineering at Edith Cowan University but he did not start the course. He said that his parents had convinced him to study at Edith Cowan University. He was much stressed and could not cope with the Course. He had passed 2 courses at World College being Certificate IV in Business in October 2016 and a Diploma of Business in November 2017.
21. He told the Tribunal that he had difficulties when he was studying for his Bachelor of Business as he had passed and completed the assignments but that the College did not issue a Certificate. He tried to lodge a complaint .He said that he had made enquiries with the Ombudsman as he was very upset that he had paid $8000 and did not achieve anything. He had been getting help from an agent.
22. He was also enrolled in a Bachelor of Community Services at Stotts College that he did not start in 2018.The Tribunal finds that he was not complying with the conditions of his visa for the last 12 months as he had not been studying. He told the Tribunal that he did not know that he could study in spite of the fact that his visa was refused. The Tribunal finds that he only obtained a COE to produce at the hearing as he was aware that he must be enrolled in a Course of study to succeed in his application for review.
The Tribunal also had regard to the applicant’s proposed career. It noted that the applicant had conceded that he could study his intended courses in India. The Tribunal recorded the applicant’s evidence that his uncle owned an auto workshop and that the applicant suggested he would learn to fix electric vehicles in Australia. However, the Tribunal found that the applicant gave general evidence as to his proposed career and his responses to questions from the Tribunal were not “straightforward” in this regard (at [23]-[24]).
The Tribunal then commented that it had regard to the fact that it should allow for reasonable changes in a career pathway. However, the Tribunal found that, overall, the applicant’s vague and unconvincing evidence, his lengthy stay in Australia and his lack of study in the previous 12 months weighed heavily against granting him the visa (at [25]).
The Tribunal also determined that the applicant’s previous studies “in business” only marginally improved his employment prospects in India. The Tribunal also determined that the applicant’s proposed courses would offer only limited incremental value to the applicant in light of his previous study and experience in both Australia and India (at [27]).
Relevantly, the Tribunal found that, if the applicant wanted to work in an automotive workshop, he could have already left Australia to implement that plan (at [28]).
The Tribunal also referred to the fact that the applicant had not provided any clear plan or specific details about his automotive business plans (at [29]).
The Tribunal then stated:
30.The Tribunal does not accept, given the earlier concerns as set out above that the applicant is undertaking these courses and proposes to undertake the courses, for the stated reason of returning to India to work in a family automotive workshop. Having carefully considered his study history as stated above and his proposed course, the Tribunal finds that these indicate that the applicant is not, or likely not to be, a genuine student. The courses that he has undertaken are low level and he has changed courses over the years, and the Tribunal finds that the courses undertaken so far do not fit coherently into his claimed career path of working in a proposed family business. The concern that the Tribunal has is that the applicant is using the student visa programme to maintain ongoing residence in Australia.
The Tribunal then had regard to the other relevant matters in Direction 69 (including military service, travel to other countries and immigration issues) (at [31]-[32]).
Overall, the Tribunal was not satisfied that the applicant was a genuine temporary entrant and found that he did not meet cl.500.212 of the Regulations (at [33]).
Proceedings in this Court
In his judicial review application filed on 13 January 2020, the applicant raises three grounds of review as follows:
1. Jurisdictional error has occurred as the primary decision maker has erred in misinterpreting, misunderstanding or misapplying the applicable law under the following sections of the Migration Act 1958:
Section 499 Minister may give directions
2. Jurisdictional error has occurred as the primary decision maker has erred in misinterpreting, misunderstanding or misapplying the applicable law under the following Ministerial Direction of the Migration Act 1958:
Ministerial Direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications
3. Jurisdictional error has occurred as the primary decision maker has erred in misinterpreting, misunderstanding or misapplying the applicable law under the following sections of the Migration Regulations (1994) specifically the following:
Migration Regulations (1994) Schedule 2 Paragraph 500.212
The applicant also filed an affidavit affirmed 11 January 2020. In effect, that affidavit repeats the grounds of review outlined above.
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of submissions. No further materials were provided.
This matter first came before the Court on 20 August 2020. On that occasion, the applicant stated that he had been “in discussions with lawyers”. He provided documents to the Court which showed an “estimate of costs” for a legal firm and Counsel in relation to any review of the applicant’s case. On the basis of that material, the Court agreed to adjourn the matter until 27 October 2020 so that legal assistance could be secured.
The matter returned to the Court on 27 October 2020. Unfortunately, the applicant appeared without legal representation and no further materials were provided to the Court. No further adjournment was requested.
The materials before the Court thus include the judicial review application dated 13 January 2020, a Court Book numbering 113 pages (marked as Exhibit 1), correspondence confirming that the Court Book and the Minister’s written submissions had been served on the applicant (marked as Exhibit 2), correspondence exchanged between Judge’s Chambers, the applicant and solicitors for the Minister (marked as Exhibit 3), confirmation of the date and time of the hearing on 27 October 2020 (marked as Exhibit 4) and an outline of submissions filed by the Minister on 10 June 2020.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to also advise the Court if there was anything else that he thought that the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Despite these explanations, and despite Counsel for the Minister summarising the Minister’s position in detail, the applicant advised the Court that he ‘had nothing further to say.” This is regrettable.
Consideration
In effect, the applicant’s grounds of review all address the same alleged error – i.e., that the Tribunal erred in its assessment of whether the applicant was a genuine temporary entrant.
Ground 1 refers to s.499 of the Act which, in the context of the present case, relates to Direction 69 (which is the subject of ground 2) – which informs the consideration of cl.500.212(a) of the Regulations (which is addressed in ground 3).
In the circumstances, all three grounds of review will be dealt with collectively.
The Tribunal, relevantly, summarised both cl.500.212 and Direction 69 as follows:
9. 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?
10. In considering whether the applicant satisfies cl.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’, made under s.499 of the Act. This Direction, which is attached to this decision, 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.
11. 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 applicant’s argument appears to be that the Tribunal misunderstood or misapplied what is outlined above. Unfortunately, he has not explained why this is the case.
As part of its’ commitment to assist self-represented litigants (as per MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and noting the applicant’s previous concerns about his lack of legal assistance, the Court has considered for itself whether the Tribunal has misunderstood or misapplied Direction 69 or cl.500.212 of the Regulations.
The Court is satisfied that the Tribunal has not misunderstood or misapplied cl.500.212 of the Regulations or Direction 69. Rather, the Tribunal’s decision demonstrates a clear understanding of the legislative criterion and the factors in Direction 69 and is evidence of an active engagement with the applicant’s circumstances as they relate to these matters.
While the Tribunal did not use headings or signposts in its reasons, there was no obligation for it to do so. A fair reading of the Tribunal’s decision demonstrates that the Tribunal was well aware of the matters in Direction 69. Relevantly, the Tribunal:
a)referred to the applicant’s reasons for studying in Australia (as opposed to in India) – which is a matter referred to at [9(a)] of Direction 69 – and found that his answers were “general” and not “straightforward” (at [23]-[24]);
b)considered the applicant’s circumstances (such as his not returning to India since 2015 and the fact that he had “lots of friends in Australia”) and found that the extent of the applicant’s personal ties to India was not a significant incentive to return (at [13]). This is a direct reference to [9(b)] of Direction 69;
c)noted that it did not have any evidence that would allow it to make a finding in respect of the applicant’s economic circumstances (at [16]). This is a direct reference to [9(c)] and [10] of Direction 69;
d)noted that it confirmed with the applicant at the hearing that he had no military service commitments (a factor referred to at [9(d)] of Direction 69) and was unaffected by civil or political unrest in India (a factor referred to at [9(e)] of Direction 69) (at [31]);
e)considered in extensive detail the matters in [11] of Direction 69 at [19]-[22]. In particular, the Tribunal considered the applicant’s previous enrolments and the fact that his latest enrolment appeared to be a reaction to the need to be enrolled in a course to obtain the visa;
f)allowed for reasonable changes to a career or study pathway (as referred to in [12(a)] of Direction 69) but found that the applicant’s evidence in relation to his proposed career pathway was vague and unconvincing. The Tribunal further noted that the value of the applicant’s proposed course was of little “incremental value” and noted that he could return to India to implement his career plan without any further study (at [25]-[29]). The Tribunal’s discussion in this regard is clearly a reference to [12] of Direction 69; and
g)aside from finding that the applicant had not complied with his visa conditions in the previous 12 months (upon which it appears to have placed no weight) (at [22]), otherwise noted that there was nothing before it of concern in relation to [13]-[14] of Direction 69 and cl.500.212(a) more generally (at [32]).
It is apparent from the above that the Tribunal clearly considered and correctly applied the matters in Direction 69. While the Tribunal did not make direct reference to the matters in Direction 69, it used the language of Direction 69 and it is clear what matters were considered relevant. To the extent that there was no reference to [15] or [16] of Direction 69, these matters were not relevant. The Tribunal is only required to address and respond to the case as put by the applicant.
There was no misapplication or misunderstanding of Direction 69. The Tribunal’s application was methodical and entirely orthodox.
In relation to the Tribunal’s consideration of cl.500.212, in circumstances where Direction 69 was properly applied and considered, it is difficult to identify how the Tribunal could have misconstrued cl.500.212. The matters in Direction 69 are specifically linked to cl.500.212 (in the sense that the factors in Direction 69 should be considered by the Tribunal in determining whether cl.500.212 is met): Kumar v Minister for Immigration and Border Protection [2010] FCAFC 16 at [25].
The Court has also considered the more recent decision of Eros v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1061 (“Eros”).
Eros concerned a misconstruction of cl.500.212(a) of the Regulations.
In Eros, the Tribunal found as follows:
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. In our view, the applicant has an intention to remain in Australia, at least while her daughter is here, but she did not articulate a lawful means of doing so outside of the student visa program. It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia.
Before the Federal Court, Chief Justice Allsop found that the Tribunal’s express finding (emphasised above) was that the appellant intended to remain in Australia “while her daughter is here”. The available evidence was that the appellant’s daughter would remain in Australia “for a period of two years” (i.e., a finite period of time).
Chief Justice Allsop noted that while the Tribunal had indicated that it had “concerns” that the appellant was using the student visa process to maintain ongoing residence, this was only a “concern”. It was not a finding. The Tribunal’s finding was that the appellant’s intention to remain in Australia was for a definitive period of two years (as that was how long the daughter would remain in Australia). While there were certainly matters that may have suggested otherwise, the Tribunal did not make that finding.
Chief Justice Allsop found that the Tribunal had erred as it had “asked itself the wrong question” and, in doing so, had failed to reveal a rational and intelligible solution for arriving at its conclusion that the appellant did not meet cl.500.212(a) of the Regulations.
The Court has considered whether the Tribunal in this matter fell into a similar error.
It is necessary to set out [30] of the Tribunal’s decision, which provides:
The Tribunal does not accept, given the earlier concerns as set out above that the applicant is undertaking these courses and proposes to undertake the courses, for the stated reason of returning to India to work in a family automotive workshop. Having carefully considered his study history as stated above and his proposed course, the Tribunal finds that these indicate that the applicant is not, or likely not to be, a genuine student. The courses that he has undertaken are low level and he has changed courses over the years, and the Tribunal finds that the courses undertaken so far do not fit coherently into his claimed career path of working in a proposed family business. The concern that the Tribunal has is that the applicant is using the student visa programme to maintain ongoing residence in Australia.
What arises from the above is that the Tribunal:
a)did not accept the applicant’s explanation for undertaking the courses – which, relevantly, was why he would return to India;
b)expressly found that the applicant was not a genuine student (which, as stated in Eros, was perhaps most relevant to cl.500.212(c)); and
c)found that the courses that the applicant was proposing to take did not fit into his proposed career path – which, again, was why the applicant said he would return to India.
There is no finding made by the Tribunal in this matter that is equivalent to the finding made by the Tribunal in Eros. Here, nothing was said by the Tribunal that suggests that there was only a definitive period during which the applicant would stay (for example, 2 years). The Tribunal, by all accounts, rejected the applicant’s claims about what he would do when he returned to India, found that there were no incentives for him to return to India and determined that he was not a genuine student. There is no error in the Tribunal’s determination that the applicant was not a genuine student as support for the Tribunal’s determination that he was not a genuine temporary entrant.
Critically, the Tribunal here rejected any of the bases upon which the applicant could be seen to have an intention to return to India (to start an automotive business or to return to family) and it rejected the basis upon which the visa was being sought (i.e., to study). Having rejected the evidence and arguments that the applicant advanced, the Tribunal’s statement at [33] that it was not satisfied that the applicant intended to genuinely stay in Australia temporarily was open to be made and did not involve any misunderstanding of its core task.
In light of the express adverse findings made by the Tribunal, the Court is satisfied that the Tribunal has not erred in assessing cl.500.212(a).
The grounds of review are, accordingly, dismissed.
Conclusion
The applicant’s application for judicial review dated 13 January 2020 fails to identify any jurisdictional error on the part of the Tribunal in its decision dated 10 December 2019. The Court is satisfied that no jurisdictional error otherwise exists in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 29 October 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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