Bangard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 204
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bangard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 204
File number(s): SYG 1600 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 March 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal fell into jurisdictional error – whether jurisdictional error is made out – no jurisdictional error made out – legal unreasonableness – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 499
Migration Regulations 1994 (Cth) cl 500.212,
Cases cited: BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456
Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Minister for Immigration v Li (2013) 297 ALR 225
Minister for Immigration and Multicultural Affairs v Etshu (1999) 197 CLR 611
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submission/s: 7 June 2023 Date of hearing: 7 June 2023 Place: Parramatta Counsel for the Applicant: Mr Swanson Solicitor for the Applicant: Cejo Consulting Counsel for the Respondents: Ms Evans ORDERS
SYG 1600 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BEVERLET BANGARD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs, fixed in the amount of $6500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Mauritius. The applicant first arrived in Australia on 30 January 2007 as the holder of Student visa with an expiry date of 15 March 2010. Since then, the applicant has been granted no less than 7 Student visas and a Temporary Graduate (Subclass 485) Workstream visa. That visa expired on 8 June 2018.
On 7 June 2018, the applicant applied for a further Student (Temporary) (Class TU) (subclass 500) visa to study a Master of Commerce at Charles Stuart University, commencing July 2018 for a period of approximately 2 years.
On 3 July 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant her visa. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 25 May 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant her visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the background of the matter, the Tribunal correctly instructed itself as to the requirements under cl 500.212 of the Migration Regulations 1994 (Cth) (“the Regulations”) that the applicant was required to meet in order to be granted her visa. The Tribunal also noted Ministerial Direction No 69 “Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications”, made under s 499 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal noted that the factors specified in Direction No 69 should not be used as a checklist but are only a guide to decision-makers. The applicant was informed of the particular matters in the Direction the Tribunal was bound to consider and they were addressed in her oral evidence.
At paragraph 13 of the decision record, the Tribunal noted that the applicant first arrived in Australia holding a Student visa in January 2007, that visa being valid for three years. After studying a Diploma of Ministry, she changed to Accounting for a career and applied for second Student visa that was granted. The applicant studied an Advanced Diploma of Accounting to June 2013 followed by a Certificate IV in Small Business. She discontinued this course and enrolled in a Bachelor of Accounting course starting from March 2014 to August 2016.
Following completion of her degree, the applicant was granted a subclass 485 Skilled visa in December 2016, expiring in August 2018. During this period, the applicant worked as a trainee Accountant for Hillsong Church. Following the expiration of that visa, she applied for a further Subclass 500 Student visa, intending to study a Master of Commerce.
At paragraph 16 of its decision, the Tribunal noted that the applicant claimed that she had decided she needs to study a Master of Business Administration for the purpose of enhancing her career prospects in her home country, where she says many applicants hold Bachelor degrees. The applicant claimed that having an MBA will give her a competitive edge to gain a foothold into a multinational company in the “commercial field”, which is Accounting or Finance related.
At paragraph 18 of its decision, the Tribunal noted based on the length of time the applicant has resided on shore, holding temporary or related bridging visas, the Tribunal had concerns that the applicant was using the Student visa program to maintain ongoing residence in Australia.
The Tribunal was satisfied that the applicant had achieved satisfactory academic results overall and that her study and stated career goal were compatible with the majority of her courses. The Tribunal also accepted that the applicant had worked in an Accounting role in Australia.
At paragraph 23 of its decision, the Tribunal noted that the applicant has only returned to her home country once, for one month over Christmas in 2015 and the New Year period in 2016. The applicant gave evidence about her former employer in Mauritius and claimed that they would employ her if and when she returned. Whilst no documentary evidence was provided in relation to this job offer, the Tribunal was prepared to accept that information on the face of it.
At paragraph 28 of the decision record, the Tribunal noted that it asked the applicant whether or not she had looked for jobs in her home country while she held the s 485 Skilled visa from 2016 to 2018. The applicant stated she had not looked specifically.
At paragraph 29 of its decision, Tribunal concluded that the applicant was amply qualified and experienced to work as an Accountant by the time she finished her Skilled Work visa experience as a trainee Accountant with Hillsong Church in August 2018. The Tribunal acknowledged that the applicant had a desire to return to her home country with an Australian MBA which she considered to be a highly competitive qualification, the Tribunal was not convinced that it was essential to the applicant starting and pursuing a career in Accounting, Finance or Management.
The Tribunal noted at paragraphs 33 and 34 of its decision, that the applicant has resided in Australia for over 13 years, since she was 23 years of age. This did not indicate that the applicant had maintained strong connections in her home country.
Whilst the Tribunal accepted that the applicant maintains regular close contact with her mother, there was a lack of evidence that the applicant had strong ties in the community to friends or otherwise, in Mauritius.
At paragraph 38 of the decision record, the Tribunal noted that the applicant had spent about $70,000.00 so far studying in Australia and that the total cost of an MBA would be $43,520.00. The Tribunal was unable to reconcile this additional expenditure with how it would necessarily add value to the applicant’s employment prospects upon return to her home country.
At paragraph 40 of its decision, the Tribunal gave significant weight to the period the applicant had spent onshore during the 13 years she has resided in Australia, only returning to her home country once. While the applicant stated that she has no assets or property in Australia and is not in a relationship the Tribunal found the amount of time spent in Australia was strongly indicative that her ties to Australia were greater than to her home country.
At paragraph 43 of the decision record, the Tribunal concluded that the applicant did not intend to genuinely stay in Australia temporarily and did not meet the requirement of cl 500.212(a) of the Regulations. Accordingly, it affirmed the delegate’s decision not to grant the applicant her visa.
GROUNDS OF JUDICIAL REVIEW.
The applicant relies on amended grounds of judicial review contained in an application filed with the Court on 29 October 2020. They are as follows verbatim:
1.The Tribunal entered into jurisdictional error when it failed to properly interpret and apply the consideration in Ministerial Direction No 69 which caused the Tribunal to incorrectly apply cl 1500.212 of Schedule 2 to the Migration Regulations.
2.The Tribunal entered into jurisdictional error as the Tribunal’s decision was unreasonable as it:
a) Took into account irrelevant considerations; and/or
b)Reached a conclusion that was sufficiently lacking in reasonable foundation.
No particulars were supplied to support the above assertions of jurisdictional error.
EXTENSION OF TIME APPLICATION
The Initiating Application was filed on 1 July 2020, outside the 35 daytime period set by
s 477(1) the Act. By consent, orders were made by this Court on 8 December 2020 for the time period to be extended to the date of the filing of the initial initiating application.
CONSIDERATION
Ground 1
In written submissions filed with the Court, Counsel for the applicant contends that the Tribunal applied a stricter threshold than directed in Ministerial Direction No 69, on the basis that at paragraph 29 of the Tribunal’s decision, it stated that “the Tribunal is not convinced that it is essential to the applicant starting and pursuing a career in Accounting, Finance or Management in her home country that she spend another two years… to study an MBA”.
By adopting the test of “essential to the applicant starting or pursuing a career” the Tribunal set the bar substantially higher than in the Direction. An education course may be, relevant, improve a person’s capacity obtain a job or better job, or improve their capacity to carry out future job without being essential to beginning or carrying on a career in the particular field.
Complaint was also made as to the finding, again in paragraph 29 of the decision record, where Tribunal found that;
“the applicant claims that the salary of someone with an MBA would be more favourable than someone with only a Bachelor degree and the Tribunal accepts this may be the case. However, it is unlikely that the difference would be so great as to cause the applicant financial hardship.”
It was submitted that the threshold of causing financial hardship is contrary to the consideration set out in the Direction which requires the Tribunal to consider whether the course would “improve employment prospects”. It was submitted that any improvement in employment prospects, including remuneration, ought to favour the applicant. The Direction cannot be read to impose a threshold of avoiding financial hardship.
Complaint is also made with paragraph 30 of the decision record where the Tribunal said:
The applicant also claims it would be easier to negotiate in the job application process with an MBA. In this applicant’s case, even if that is so, it would not necessarily guarantee success and, in any event, she has her former employer ready to employ her with or without an MBA qualification”.
It was submitted that the Tribunal imposed 2 thresholds that the educational course would guarantee success in obtaining employment and that the need for the educational course is obviated by the standing employment offer.
Complaint was further made at paragraph 36 of the decision whether Tribunal stated that it:
…is not satisfied the applicant has made genuine attempts to satisfy herself that she could not study and MBA in her home country or remotely.
It was submitted that this was not set out expressly in the Direction and is not relevant to the determination of whether a person genuinely intends to stay in Australia temporarily.
In oral submissions the Court was taken to Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [13] – [15]. It was submitted that a failure to consider a claim engaging a factor under Direction No 69 may constitute jurisdictional error.
On behalf of the Minister is was submitted that the Tribunal did follow and correctly apply the guidance within items 7 and 12 of Direction No 69. Item 7 states decision-makers should “have regard to the value of the course to the applicant’s future”. Item 12 and sets out a number of factors that the Tribunal should have regard to in assessing the value of the course to the applicant’s future which the Tribunal considered at paragraphs 29, 31, and 32 of the decision record.
The Tribunal’s decision record plainly reveals that it understood the terms of Direction No 69 including item 12(a). It accepted that the course may improve the applicant’s employment prospects at paragraph 36. It was submitted that the applicant’s submissions do not reveal a fair reading of the Tribunal’s decision and the applicant has not explained how the Tribunal’s assessment of the value of the course is not being essential to her future apply the test substantially higher than one in the Direction.
It was further submitted that the applicant’s submission regarding the salary difference between someone with and without an MBA seeks impermissible merits review. This is revealed by the applicant submitting that any “improvement on employment prospects, including the renumeration, ought to favour the applicant”. The Tribunal‘s critical finding was its acceptance that the applicant’s salary may be higher if she obtained her MBA. It was further submitted that consideration of the relative remuneration between holding an MBA and not holding an MBA was plainly relevant to the applicant’s economic circumstances which may present an incentive not to return to her home country.
The contention regarding paragraph 30 again seeks impermissible merits review. The Tribunal’s decision record plainly reveals that it did not require the applicant’s course to “definitely” improve her employment prospects. Rather, it observed that it was entirely speculative that the holding an MBA would or would not improve those prospects significantly.
Further, the Tribunal’s consideration of the offer of employment on the applicant’s former employer was not “contrary” to Direction 69. Rather, the Direction expressly suggests that decision-makers have regard to the circumstances of the applicant in the home country, including their ties in that country through, for example, employment. Further, the offer of employment was a matter that was raised by the applicant herself as demonstrating an incentive to return to her home country. In any event, in terms of employment prospects, there was no error in the Tribunal finding they were good.
The submission that the Tribunal’s lack of satisfaction that the applicant had made genuine attempts to satisfy herself she could study an MBA in her home country was not relevant and cannot be sustained on the basis that it was not “expressly set out in the Direction”. Item 9 (a) includes consideration as to “whether the applicant has reasonable reasons for not undertaking the study in the home country or region. The Tribunal was plainly satisfied that the applicant did not provide a reasonable reason to not study in her home country.
It was submitted that the relevance of Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 has not been explained.
In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
Ministerial Direction No 69 provides guidance to decision-makers when considering whether or not an applicant is a genuine temporary entrant for the purposes of study. The Direction is only meant to guide decision-makers when considering the applicant circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criteria. These criteria include:
a. The applicant’s personal circumstances in the home country and potential circumstances in Australia. Item 8 directs that weight should be placed on applicant circumstances that indicate the student visa or student guardian Visa is intended primarily for maintaining residence in Australia.
b. The applicant circumstances in the home country. This includes relevantly whether there are reasonable reasons for not undertaking study in the home country; extent of personal ties to the home country; and the economic circumstances that would present a significant incentive for the applicant not to return to their home country.
c. The applicant’s potential circumstances in Australia. This includes whether the applicant has ties that would present a strong incentive to remain in Australia, evidence that the student visa program is being used to circumvent the intentions of the migration program including to maintain ongoing residence.
d. the value of the course to the applicant’s future. This includes whether the course is consistent with the current level of education and will assist the applicant to obtain employment or improve employment prospects in the home country. Also relevant is remuneration the applicant could expect to receive in the home country, or third country compared with Australia, using the qualification to be gained from the proposed course of study.
e. the applicant’s immigration history. This includes previous visa applications in Australia, whether not the applicant has complied with the conditions of the visa in Australia and significantly the amount of time the applicant spent in Australia and whether the visa is being used primarily for maintaining ongoing residence.
Decision-makers are not required to use Direction No 69 as a checklist and it is to be noted that in the preamble to the Direction, it states decision-makers are entitled to take into account “any other relevant matter”.
The first complaint in ground one is the use of the word ‘essential’ as regards to the applicant being able to” start and pursue a career in accounting…in her home country”. It was submitted that the Tribunal imposed a higher test than required by Direction No 69. The Court does not accept this submission. It was the applicant who made this assertion in the written statement provided to the Tribunal at CB 69 where she stated, “it was essential for the Masters studies …which can improve my opportunities”.
The Tribunal rejected that assertion, and in doing so, determined that it was not essential, based on the whole of the evidence, including her qualifications to date and work experience. There was no misapplication of the law. Rather, the Tribunal was responding to the evidence. The first complaint has no merit.
The second complaint is that the Tribunal erred by adopting a test of financial hardship as a test regarding the value of the course to her. The Tribunal noted that the applicant herself stated that she is ‘not influenced by money exactly’. There was no evidence before the Tribunal as to what difference having or not having an MBA would make, as to the salary the applicant might receive upon return to her home country. The Court accepts the submission of the first respondent that this contention seeks to recast the Tribunal’s findings. It accepted that the applicant’s salary may be higher if she had an MBA. It did not find that that it needed to be satisfied that not holding an MBA on return would cause financial hardship, in order to find there was value to the applicant in terms of future employment prospects.
The Tribunal simply found that any difference in salary would not be such as to cause financial hardship. The Court is satisfied this finding is within the legitimate bounds of decisional freedom of the Tribunal based on the evidence that was before it and the considerations set out in Direction No 69. Had the Tribunal found the difference in salary would be such was to cause financial hardship, then this is a matter that might have weighed heavily in favour of the applicant. The second complaint has no merit.
The third complaint relates to paragraph [30] of the Tribunal’s reasons. This states as follows:
The applicant also claims that it would be easier to negotiate in the job application process with an MBA. In this applicant’s case, even if this is so, it would not necessarily guarantee success and, in any event, she has her former employer ready to employ her with or without an MBA.
The applicant submitted that this paragraph imposes two impermissible thresholds, first that the course would need to guarantee success and second, that the need for the course is obviated by the standing offer of employment.
The Court does not accept this submission. The offer of employment was not a matter that the Tribunal could not consider. The Direction suggests that decision makers have regard to the circumstances of the applicant in their home country. Thus a standing offer of employment was a matter the Tribunal could take into account in demonstrating an incentive to return. The conclusion that having an MBA would not guarantee success in succeeding in gaining the employment she hoped for is also unremarkable. The third complaint has no merit.
The last complaint relates to the lack of satisfaction that the applicant had made genuine attempts to satisfy herself that she could not study an MBA in her home country either face to face or remotely. Item 9(a) of Direction No 69 directs the Tribunal to consider if the applicant has “reasonable reasons for not undertaking the study in their home country or region if a similar course is available there”. It is a matter for the applicant to show to the Tribunal that they qualify for the type of visa sought. The applicant bears the onus of proof: (see; Minister for Immigration and Multicultural Affairs v Etshu (1999) 197 CLR 611 at [195]).
The Court is satisfied that the Tribunal was entitled to find as it did. The Court is satisfied the Tribunal properly found that the applicant had not provided any reason for not studying in her home country. This complaint has no merit.
Ground 2
Ground 2 asserts the Tribunals decision is legally unreasonable. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: (see; Minister for Immigration v Li (Li) (2013) 297 ALR 225 at [28]), or where a decision has been made that lacks an “evident and intelligible justification”:
(see; Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see; Li at [30], [113]).
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
The applicant submitted that the finding that the applicant has stronger ties to Australia than Mauritius is unreasonable because the Tribunal failed to identify the ties to Australia which are said to be stronger and that reasoning cannot logically be sustained, solely on the basis of the duration of the time the applicant spent in Australia.
In terms of diminishing the connection to Mauritius, the Tribunal found that the applicant had resided in Australia for 13 years and had returned to Mauritius only once over that period of time. It was submitted that the Tribunal did not note that the applicant had abided at all times with the conditions of the visas she had been granted. Further, her study had been undertaken appropriately consistent with her stated career goals.
It should be noted that the applicant has been unable to study in Australia since 2018. It was submitted that the Act and Regulations do not place a time limit on the duration of which a person may study in Australia and that a person may undertake a series of courses over a substantial period of time while genuinely intending to stay in Australia on a temporary basis. It was submitted that the ultimate finding that the applicant did not intend to remain in Australia as a student was unreasonable as it considered unfavourably irrelevant circumstances and was otherwise based on an unreasonable finding.
The Minister submitted that ground two, is a bare assertion of error and that in the submissions, the applicant seeks to re-agitate the finding that she had stronger ties to Australia than to Mauritius. The applicant further contends that the reasoning cannot be logically sustained solely on the basis of the time the applicant has been in Australia. It was submitted, properly understood, this contention invites the Court to substitute its view as to how the Tribunal’s discretion should have been considered and invites the Court to undertake impermissible merits review.
Firstly, a fair reading of the Tribunal’s decision record indicates the Tribunal conducted the review in an orthodox fashion. The Tribunal correctly instructed itself as to the relevant laws and policy. It then set out the evidence it had before it. Concerns were clarified with the applicant by way of oral evidence in the Tribunal hearing.
The evidence reveals that the applicant had resided in Australia for most of her adult life. There was no error in that finding. The length of the applicant’s residence in Australia was plainly not the only reason the Tribunal had concerns about. There was nothing in the Tribunal’s reasoning process that was faulty, irrational or illogical in giving significant weight to the length of the applicant’s residence in Australia. Item 8 of Direction No 69 specifically directs the Tribunal to give weight on the applicant’s circumstances that indicate the Student visa is being used primarily for maintain residence in Australia.
The decision ultimately arrived at by the Tribunal was one that a decision-maker could reasonably come to based on the whole of the evidence. The fact that the applicant disagrees with the outcome is not evidence of jurisdictional error.
Noting that the test for unreasonableness is “stringent” and that unreasonableness is not to be used for challenging the merits of the decision the Court is unable to ascertain any error in the approach of the Tribunal. Clearly, under Ministerial Direction Nor 69, the Tribunal was entitled to consider and give weight to evidence that the program was being used to circumvent the intention of the migration program and is being used to maintain ongoing residency in Australia.
To find that after 13 years, that the applicant was not intending to genuinely stay in Australia temporarily for the purpose of study, is a finding that was open to the Tribunal on the evidence before it and for the reasons it gave. A fair reading of the whole of the Tribunal’s decision indicates nothing irrational illogical or unreasonable in it. Ground two has no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 5 March 2024
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