CVG17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 128
Federal Circuit and Family Court of Australia
(DIVISION 2)
CVG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 128
File number: MLG 1355 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 22 February 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority constructively failed to exercise its jurisdiction by failing to consider an unarticulated claim said to emerge clearly on the materials – whether Authority unreasonably failed to consider the possible exercise its discretion in s 473DC of Migration Act 1958 (Cth) to get new information – whether Authority decision not to exercise its discretion in s 473DC to get new information in relation to an issue not addressed by the delegate and in relation to inconsistencies in the applicant’s evidence and implausibility findings was legally unreasonable – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AA, 5AAA, 5H, 36, 46A, 473DC, 473CA, 476, 477 Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AWT15 v Minister for Immigration & Border Protection [2017] FCA 512
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BDR18 v Minister for Home Affairs [2020] FCA 212
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
CQW17 v Minister for Home Affairs [2019] FCCA 643
CQW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1436
DFW16 v Minister for Immigration and Border Protection [2018] FCA 746
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
DPI17 v Minister for Home Affairs (2019) 268 FCR 134; [2019] FCAFC 43
ELA18 v Minister for Home Affairs [2019] FCA 1482
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437; [2014] FCAFC 1
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
SZULW v Minister for Immigration and Border Protection [2018] FCA 1335
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 18 July 2022 Place: Perth Counsel for the Applicant: Mr N Mutton Solicitor for the Applicant: AR Law Services Lawyers Counsel for the First Respondent: Mr N Swan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1355 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVG17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
22 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 2 June 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The applicant relies on an amended application filed on 11 February 2022 which advances three grounds. For the reasons set out below, I find that there is no jurisdictional error in the Authority decision and I dismiss the application to the Court.
BACKGROUND
The applicant is a citizen of Sri Lanka who entered Australia by sea at Christmas Island in August 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On or around 23 July 2013 the applicant lodged an application for a protection visa which was accompanied by a statutory declaration. This application was deemed to be invalid.
On 28 September 2015 the Department sent to the applicant an invitation to apply for a protection visa. The invitation advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 23 February 2016 the applicant lodged a valid application for a Safe Haven Enterprise visa, which is a type of protection visa. In a statutory declaration which accompanied his protection visa application, the applicant claimed to fear harm from the Sri Lankan authorities because of his Tamil ethnicity and perceived political opinion. He also claimed to fear harm from the authorities because of his imputed links to the Liberation Tigers of Tamil Eelam (LTTE) arising from his friendship and association with a particular LTTE cadre.
On 24 May 2016 the applicant attended an interview with an officer of the Department to discuss his claims for protection.
A delegate of the Minister made a decision on 27 October 2016 not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 2 June 2017 the Authority affirmed the delegate’s decision.
AUTHORITY DECISION
The Authority accepted that the applicant is a Tamil male from the Batticaloa District in the east of Sri Lanka.
The Authority found the applicant’s evidence in relation to a number of his past experiences prior to coming to Australia to be unconvincing. The Authority also found that there were a number of inconsistencies in the applicant’s evidence presented at different times that undermined the credibility and plausibility of his claims.
The Authority did not accept that the applicant’s friend was abducted by the Karuna Group as claimed or that the applicant himself was abducted by the Apache Group, physically harmed, detained for 14 days and released on the condition that he would pass information about the LTTE. The Authority also rejected the applicant’s claim that the Sri Lankan army came to his home and searched for him.
The Authority considered it to be plausible that the applicant was living outside of Sri Lanka between 2008 and 2012 but was not satisfied that it was because the Sri Lankan authorities were looking for him. The Authority found that the applicant did not travel on a falsified passport, that he held a tourist visa while in Malaysia and that he returned to Sri Lanka in 2012 having spent the previous 18 months living in Thailand.
The Authority found that the applicant did not come to the adverse attention of the authorities prior to his departure from Sri Lanka in 2008 and considered that he was able to depart from Sri Lanka, and then return in 2012, without difficulty. The Authority was not satisfied that the authorities came looking for the applicant in 2012 or since then, that his parents were arrested, interrogated and monitored, or that his parents registered him as deceased to avoid scrutiny from the authorities. The Authority also considered a new claim raised by the applicant at his protection visa interview that his sister had been missing for two weeks and that this could have been an act of revenge by paramilitary groups. The Authority considered it to be plausible that the applicant’s sister had been missing for two weeks, but did not accept that the applicant faced a real chance of serious harm on account of his sister’s disappearance.
The Authority accepted that the applicant had scarring on his back, but found that this scarring was not a result of the events claimed by the applicant. The Authority acknowledged country information suggesting that in the past scarring has been a risk factor for returnees, but that now body scarring alone is unlikely to attract the attention of the authorities and scarring is only relevant where a person is detained and stripped. The Authority was not satisfied that the applicant would be at risk of being detained and stripped upon his return to Sri Lanka or that the applicant’s scars would put him at risk of coming to the adverse attention of the authorities. The Authority concluded based on country information and the applicant’s profile that the applicant was not a person who faces a real chance of serious harm by virtue of his Tamil ethnicity, his age, or on account of any actual or imputed LTTE links.
The Authority accepted that on return to Sri Lanka, the applicant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally, and that as a consequence he may be questioned by police at the airport and he may be remanded into police custody for a brief period of time. However, the Authority did not consider that this would amount to serious harm.
Having considered the applicant’s claims individually and cumulatively, the Authority was not satisfied that the applicant had a well-founded fear of persecution. The Authority concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act and therefore did not meet the requirements of s 36(2)(a).
The Authority also found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would suffer significant harm. In reaching this conclusion, the Authority relied on its earlier findings of fact that the applicant is not of interest to the Apache group, the Karuna group, the Sri Lankan Army, the Criminal Investigation Department or the Sri Lankan government on account of any imputed LTTE links; that he is not of interest to paramilitary groups or any other arm of the Sri Lankan authorities on account of his sister’s disappearance; and that he does not face a real chance of harm for any other reason including being a returning asylum seeker. The Authority noted that the trend of monitoring Tamil civilians in day-to-day life had eased since 2009 and taking into account the applicant’s own circumstances and evidence, the Authority did not consider that any treatment the applicant may face would amount to significant harm. The Authority was not satisfied that the applicant faced a real risk of significant harm as a Tamil from the east or due to visible scarring. The Authority was not satisfied that the applicant would face a real risk of significant harm during any investigation process or while been held at the airport or in detention as a result of having departed Sri Lanka illegally.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
By amended application filed on 11 February 2022, the applicant advances the following three grounds:
1.The Immigration Assessment Authority (IAA) constructively failed to exercise its jurisdiction by failing to consider the Applicant’s claim (or integer of a claim) that he feared harm as a Tamil from the Eastern Province of Sri Lanka.
Particulars
a.The IAA was required to consider all of the Applicant’s claims and their integers, including those claims and integers that were not explicit but arose squarely on the material.
b.A claim arose squarely on the material before the IAA that the Applicant feared harm because he was a Tamil from the Eastern Province of Sri Lanka (the Eastern Province claim).
c.The Eastern Province claim was separate to, or a distinct integer of, the Applicant’s claim to fear harm as a Tamil.
d.The IAA accepted that the Applicant was from the Eastern Province but failed to consider or engage with the Eastern Province claim.
e. The IAA therefore fell into jurisdictional error.
2.The IAA’s failure to consider whether to get new information, or its decision not to get new information, from the Applicant about the possibility of his scarring coming to the attention of authorities or other persons from whom he feared harm was legally unreasonable.
Particulars
a.The Applicant has scarring on his back, which he claimed was inflicted when he was abducted and tortured by the Sri Lankan Army and affiliated groups.
b.The IAA accepted the Applicant has scarring, but not that it was caused in the circumstances claimed.
c.While the Applicant did not expressly claim to fear harm due to the existence of his scars, the IAA considered that such a claim arose.
d.The IAA accepted that scarring could be a risk factor for returnees to Sri Lanka if it came to the attention of authorities, but was not satisfied the Applicant’s scarring would come to authorities’ attention if he returned.
e.The issue of whether or in what circumstances the Applicant’s scarring might come to the attention of authorities or other persons from whom the Applicant feared harm was part of the reason for the IAA affirming the decision under review but was never raised by the Minister’s delegate or the IAA prior to the IAA’s decision.
f.The IAA failed to consider exercising its discretion under s 473DC(3) of the Migration Act 1958 to get new information, or alternatively decided not to get new information, from the Applicant about the possibility of his scarring coming to the attention of those persons from whom he feared harm.
g.In the circumstances of the case, the failure to consider exercising this power, or the decision not to exercise it, was legally unreasonable.
3.The IAA’s failure to consider whether to get new information, or its decision not to get new information, from the Applicant about perceived inconsistencies in the Applicant’s evidence was legally unreasonable.
Particulars
a.The IAA relied on perceived inconsistencies in the Applicant’s evidence in forming an adverse view about the Applicant’s credibility, which was central to its rejection of some of the Applicant’s key claims.
b.The perceived inconsistencies were not raised in the decision of the Minister’s delegate or otherwise before the IAA’s decision.
c.As a result, the Applicant was not on notice that the perceived inconsistencies may form part of the reason for affirming the decision under review.
d.The IAA failed to consider exercising its discretion under s 473DC(3) of the Migration Act 1958 to get new information, or alternatively decided not to get new information, from the Applicant about the perceived inconsistencies.
e.In the circumstances of the case, the failure to consider exercising this power, or the decision not to exercise it, was legally unreasonable.
The evidence before the Court comprises the court book filed on behalf of the Minister and a supplementary court book filed on behalf of the applicant.
CONSIDERATION
Ground 1
By ground 1 the applicant asserts that the Authority constructively failed to exercise its jurisdiction by failing to consider his claim that he feared harm as a Tamil from the Eastern Province of Sri Lanka (Eastern Province claim), which was said to be a claim that emerged clearly from the materials before the Authority.
The principles relevant to the resolution of ground 1 are well-established. The Authority, in conducting a de novo review of the delegate’s decision, was required to consider each of the claims for protection expressly articulated by the applicant and their component integers as well as claims that are not expressly articulated but which clearly emerged on the materials before the Authority: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [55], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18]. Conversely, the Authority was not required to consider any claim which was not expressly articulated and which did not clearly emerge on the materials. In considering the applicant’s claims, the Authority was required to engage in an active intellectual process: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [43]-[47].
In AYY17 the Full Court summarised the following principles, collected by Barker J in AWT15 v Minister for Immigration & Border Protection [2017] FCA 512, relevant to determining whether a claim clearly emerges on the materials before the Authority at [18]:
(a) such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration & Border Protection (2016) 241 FCR 214 per Markovic J (at [37]–[38]))…
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
As can be seen from the principle summarised at (d) in the quote above, in determining whether an unarticulated claim emerged on the materials, it is relevant to take into account that the applicant was represented when he made his protection visa application and when that application was considered by the Department. Unless there were reasons to think otherwise, the Authority was entitled to assume that claims expressly articulated by an applicant and his representative as to his feared persecution were those on which the applicant relied: ELA18 v Minister for Home Affairs [2019] FCA 1482 at [32]; SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80]-[81]. That, of course, does not mean that an unarticulated claim can never arise when an applicant is represented. Rather, representation is just one of the matters that a court can take into account.
With these principles in mind, I now turn to the Eastern Province claim that the applicant submitted the Authority was required to consider in the present matter. The applicant submitted that the Eastern Province claim arose as a separate claim, or at the very least, as an integer of a claim.
The applicant submitted that the Eastern Province claim arose squarely on the following materials which were before the Authority:
(a)a submission dated 5 August 2013 prepared by the applicant’s former representative in relation to an earlier invalid application for a protection visa, which expressly referred to country information regarding the risk of harm faced by Tamils from the Eastern Province of Sri Lanka (2013 submission); and
(b)a report prepared by the United Kingdom Home Office titled, ‘Country Information and Guidance – Sri Lanka: Tamil Separatism’ dated 28 August 2014 (Home Office report).
The 2013 submission contains a section titled ‘Tamils from the Eastern Province’. At [14] of the applicant’s outline of submissions to the Court, the applicant said that the 2013 submission (footnotes omitted):
(a)stated that ‘available information continues to support that Tamils originating from the Eastern province of Sri Lanka remain particularly vulnerable to human rights abuses’;
(b)referred to [United Nations High Commissioner for Refugees] guidelines stating that a person’s place of origin may be a relevant factor in the assessment of risk;
(c)quoted a UK Home Office Guidance Note as stating that ‘Tamils throughout the country, but especially in the conflict-affected north and east, reported frequent harassment of young and middle-age Tamil men by security forces and paramilitary groups…
(d)stated that ‘Tamils from the East face particular threats from paramilitary groups that retain an active presence in the region’;
(e)referred to a report from the Immigration and Refugee Board of Canada that included information about the operation of paramilitary groups in the Eastern Province;
(f)stated that the Applicant’s return to the East would see him come into regular contact with members of security services or associated paramilitary groups that would heighten his vulnerability.
As noted by the Minister in his written submissions, in the section under the heading ‘Tamils from the Eastern Province’, the applicant’s representative also said in the 2013 submission:
While the Applicant is not seeking to claim that his need for protection is based solely or merely on the fact that he is a Tamil from the East, both of these factors are relevant to the overall level of risks he faces on return to Sri Lanka.
The applicant in his written submissions identified two sentences in the Home Office report that he says gave rise to the Eastern Province claim. I reproduce these sentences below in bold font in the context in which they appear in the Home Office report:
(a)At [2.2.3] the Home Office referred to a Swiss Refugee Council report dated 15 November 2012 and quoted from that report (footnotes omitted):
Although the LTTE may have been defeated and there is not the slightest sign that this organisation has survived, the State machine of Sri Lanka is extremely paranoid and is trying to contain any resurgence of this group, or the germination of tendencies of independence alongside the Tamils. This concern has direct repercussions on all of the Tamils in the North and East because their ethnicity could indicate possible proximity to the LTTE. There are even suspicions directed at Tamils with a low profile, who do not escape surveillance. The authorities check whether these people may be in contact with the diaspora. This is especially the case of those who were recruited, whether or not by force, by the LTTE. The authorities also extend their suspicions to acquaintances and relatives of former members of the LTTE. According to several reports, people who return from abroad are often suspected of maintaining links with the LTTE and are particularly threatened.
(b)At [2.2.17] the Home Office referred to the US Department of State’s 2013 Country Report on Human Rights Practices, Sri Lanka, published on 27 February 2014 and quoted from that report (footnotes omitted):
The law provides for the right to privacy, but the government infringed on this right, particularly when conducting cordon and search operations in Tamil neighbourhoods. Security forces conducted searches of property and engaged in wiretapping and surveillance of private citizens with little judicial oversight. Seizure of private lands by various actors remained a problem across the country. There were reports of government-aided resettlement of Sinhalese families from the south into traditionally Tamil areas… Both local and Indian-origin Tamils maintained that they suffered longstanding, systematic discrimination in university education, government employment, and other matters controlled by the government. Tamils throughout the country, but especially in the north and east, reported that security forces and paramilitary groups frequently harassed young and middle-aged Tamil men.
Overall, I am not satisfied that the Eastern Province claim clearly emerged on the materials before the Authority. This conclusion is reached taking into account that a finding that an unarticulated claim arose should not be made lightly, that the applicant was represented by a lawyer when his application was before the delegate and the manner in which the applicant advanced his claims.
Although the applicant’s former representative referred to the Eastern Province claim in the 2013 submission, at least as an integer of his claim to fear harm as a Tamil, the 2013 submission was based on country information that was relevant and current at that time. The 2013 protection visa application was found to be invalid and the applicant did not advance anything in his 2016 protection visa application or in the documents provided in support of that application to suggest that he continued to rely on the Eastern Province claim as advanced in the 2013 submission or at all. The Authority made its decision in 2017 and some of the country information that it took into account was more up-to-date than some of the country information referred to in the 2013 submission.
Counsel for the Minister in his oral submissions directed the Court to the various evidence in the court book showing the manner in which the applicant advanced his claims. The applicant did not refer to being a Tamil from the Eastern Province in his entry interview conducted in October 2012 when asked why he left Sri Lanka. In his statutory declaration made on 23 July 2013 and provided in support of his 2013 protection visa application, the applicant claimed that he would be harmed in Sri Lanka because of his ‘race as a Tamil’, but did not mention any claim to fear harm, or claim to face any additional risk, as a Tamil from the Eastern Province. Likewise, in his statutory declaration made on 15 February 2016 and provided in support of his 2016 protection visa application, the applicant referred to being a Tamil and claimed that he would face harm as a result of his race, but did not claim that there was any significance to being a Tamil from the east.
The Minister also submitted that the delegate did not address whether the applicant would face harm as a Tamil from the east. This was said to be significant because the applicant was represented, and was provided with a copy of the Authority’s practice direction which invited him to make a submission, and the applicant did not make any submission suggesting that the delegate overlooked a claim that he would face harm as a Tamil from the east. I acknowledge that the applicant did not say anything to the Authority to suggest he believed that the delegate had overlooked any claim that he would face harm as a Tamil from the east, but I am unable to locate any evidence that the applicant was represented when the matter was before the Authority. While a submission by the applicant to the Authority suggesting that the Eastern Province claim had been overlooked would have been persuasive evidence to show that the claim arose, I do not place any weight on the applicant’s failure to provide any submission to the Authority in finding that the Eastern Province claim did not emerge clearly on the material before the Authority.
Although the Home Office report cites two pieces of country information that suggest that there may be some suspicion or harassment of Tamils from the east and the north of Sri Lanka, I do not accept that this information gives rise to an unarticulated claim that the applicant would face a real chance of serious harm or a real risk of significant harm as a result of being a Tamil from the east. The particular passages do not appear to have been brought to the attention of the delegate or the Authority by the applicant or his representative. In these circumstances, it is relevant to consider the report as a whole in considering whether the particular passages give rise to an unarticulated claim. When the report as a whole is considered, it becomes apparent there are other parts of that same Home Office report which tend to suggest that being a Tamil from the east is not of itself sufficient to meet the refugee criteria, which weighs against finding that the Eastern Province claim clearly emerged. For example, at [2.2.34], the Home Office quoted from the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines dated 21 December 2012 that (emphasis added, footnotes omitted):
At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.
Even if I am wrong in finding that the claim did not emerge clearly on the materials before the Authority, I would accept the Minister’s alternative submission that the Authority had sufficiently addressed the claim. The Authority accepted at [8] of its reasons that the applicant is a Tamil male from the Batticaloa District in the east of Sri Lanka. The Authority considered the applicant’s claims to face harm on account of his Tamil ethnicity. In so doing, the Authority observed at [38] that country information indicated that the overall situation for Tamils in Sri Lanka had ‘improved considerably’ since the end of the civil conflict in 2009 and at [39] that there is no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity. The Authority then referred to the UNHCR guidelines acknowledging that persons suspected of certain links with the LTTE may be in need of protection, depending on their individual circumstances, but found that the applicant was not a person who faced a real chance of serious harm on the basis of his Tamil ethnicity or any actual or imputed LTTE connections. The Authority did not accept that the applicant had a profile that would attract the adverse attention of the authorities in Sri Lanka. This finding is particularly significant because if the Eastern Province claim did emerge from the 2013 submission, it was advanced in a manner that suggested it was an additional factor relevant to the overall assessment of a risk, rather than a claim that of itself engaged Australia’s protection obligations. If the applicant did not have an adverse profile that would put him at risk of harm for any reason, any claim to face additional risk because of his origin from the east falls away.
In its consideration of the complementary protection criterion, the Authority made an express finding at [54] that (emphasis added):
I am not otherwise satisfied he faces a real risk of significant harm as a Tamil from the east or due to visible scarring.
I do not accept the applicant’s submission that this finding is incapable of constituting the consideration the Authority was required to give to the claim because it does not refer to or engage with the specific issues raised by the country information identified. It should be read in the light of the Authority’s reasons as a whole, including its observations at [39] about the circumstances in which Tamils may be in need of international protection, namely, in some circumstances where the person is suspected of having links to the LTTE. The lack of detail in the reasoning does not amount to jurisdictional error in the circumstances of this case.
Ground 1 is not established.
Ground 2
The applicant asserts by ground 2 that the Authority acted unreasonably in failing to consider whether to get new information, or in deciding not to get new information, from the applicant about the possibility of his scarring coming to the attention of the authorities or other persons from whom he feared harm.
The Authority has a discretion, conferred by s 473DC of the Migration Act, to get new information that was not before the delegate and that it considers may be relevant to the review. Section 473DC of the Migration Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The Authority is required to act reasonably in the exercise of its discretion in s 473DC, and the unreasonable failure to consider the exercise of the discretion to get new information, or the unreasonable refusal to get new information, can amount to jurisdictional error: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], [71], [90] and [97]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3]; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 (CRY16) at [82]; DPI17 v Minister for Home Affairs (2019) 268 FCR 134; [2019] FCAFC 43.
The applicant in his written submissions referred to the following comments of the High Court (Kiefel CJ, Bell, Gageler and Keane JJ) in ABT17 at [20] (footnotes omitted):
Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an “intelligible justification” but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate consider, as new information, further information capable of being provided by the referred applicant.
A finding of legal unreasonableness will invariably be fact dependent and requires careful evaluation of the evidence: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [84]; Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42].
In the present case, the applicant provided to the delegate, as evidence to support his claims that he was detained and tortured, photographs that depicted scarring on his back. The applicant did not claim that he would face a risk of harm because of his scarring and did not claim that the scarring would bring him to the adverse attention of the Sri Lankan authorities. The delegate did not accept that the applicant had been abducted or tortured as claimed, but did not otherwise refer to the scarring.
The Authority considered whether the applicant would face a real chance of harm as a result of his scars and said at [37] (footnotes omitted):
On the basis of the photographs submitted I accept that the applicant has scarring on his back; however, I have found these scars are not as a result of events claimed by the applicant. Country information in the referred materials confirms that scarring has been a risk factor in the past for returnees. However, country information does not indicate the body scars alone are now likely to attract the attention of the authorities. The UK Tribunal opined that the issue of scarring was only relevant in circumstances where the person was being detained and stripped. While I accept the applicant has scarring as claimed, in his circumstances, I am not satisfied he will be at risk of being detained and stripped upon his return to Sri Lanka. I note the applicant exited and entered Sri Lanka on two occasions since he claimed to have received the scars and did not come to the adverse attention of the authorities on account of bodily scarring, or for any other reason. I am not satisfied that the applicant is at risk of coming to the adverse attention of the authorities on his return due to scars on his back.
The Authority also considered the applicant’s scarring in the context of its consideration of whether the applicant would face harm as a consequence of departing Sri Lanka unlawfully. The Authority said at [42] (emphasis added, footnotes omitted):
Having regard to the country information before me, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities by virtue of him being a Tamil asylum seeker. [Department of Foreign Affairs and Trade] assess the risk of mistreatment for the majority of returning asylum seekers to be low. While I have accepted that the applicant has scars on his back, there is no information before me to indicate that the applicant is at risk of coming to the attention of the authorities on his return on account of bodily scarring. For these reasons I am not satisfied the applicant faces a real chance of serious harm due to being a failed asylum seeker from Australia, or his scarring, now or in the reasonably foreseeable future, if he returns to Sri Lanka.
To the extent that ground 2 alleges that the Authority acted unreasonably in failing to consider exercising the discretion in s 473DC of the Migration Act to obtain further information from the applicant about the possibility that his scarring would come to the attention of the authorities in Sri Lanka, the ground fails. This is because the applicant has not established that the Authority did not in fact consider whether or not to exercise the discretion in s 473DC of the Migration Act.
In this regard, I do not accept the applicant’s submission that, as there is no evidence that the Authority considered seeking new information from him, such as a statement in its reasons from which it can be inferred that the Authority considered obtaining further information, the correct or preferable inference is that the Authority failed to consider exercising the power. As the Minister submitted, the Authority is not required to give reasons for procedural decisions, such as whether or not it chooses to exercise the discretion in s 473DC: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38]-[40]. Accordingly, the failure to include any statement in its reasons as to whether or not it considered exercising the discretion in s 473DC does not of itself establish that the Authority failed to consider the exercise of the discretion. The applicant has not otherwise identified any feature of the Authority’s reasons from which the Court can infer that the exercise of the discretion was not considered. In these circumstances, the applicant has not established that the Authority failed to consider the exercise of the discretion.
I now turn to whether the Authority acted unreasonably in deciding not to exercise the discretion to get new information about the possibility of the applicant’s scarring coming to the attention of the authorities.
The applicant submitted that it was unreasonable for the Authority not to obtain new information from him about the possibility of his scarring coming to the attention of the authorities for the following reasons:
(a)these matters were never raised by the delegate or the Authority prior to the Authority’s decision and there was no indication that these were issues about which the applicant ought to provide further information or make submissions, and no suggestion that they might form part of the reason for affirming the decision under review;
(b)any new information that the applicant might have been able to provide about the possibility of his scars coming to the attention of the authorities was especially important given the Authority had accepted the applicant would come to the attention of the authorities for having departed Sri Lanka illegally and, consequently, would be subject to enhanced scrutiny from authorities on his return;
(c)the applicant was uniquely placed to provide information about matters considered by the Authority in concluding that it was not satisfied that he was at risk of coming to the adverse attention of authorities due to his scarring, including in relation to his previous return to Sri Lanka from abroad and the screening process he previously underwent and why his scarring did not come to the attention of the authorities.
The applicant submitted that in affirming the delegate’s decision in part based on an issue that the delegate had not decided and which had never previously been raised with the applicant, the Authority denied the applicant an effective opportunity to respond to a matter on which the outcome of the review potentially turned.
A key premise of the applicant’s ground is his interpretation of the Authority’s reasons as indicating that the fact of the applicant’s scarring ‘could be a significant risk factor’ if it came to the attention of the Sri Lankan authorities. The applicant also submitted that it was clear the Authority considered the procedures the applicant might be subjected to on his return were relevant to its conclusion that scarring would not come to the Authority’s attention, specifically referring to the applicant having previously returned to Sri Lanka without experiencing problems.
The Minister submitted that the applicant, in suggesting that the Authority considered the fact of scarring ‘could be a significant risk factor’, misstates the Authority’s reasons which, when read fairly, contain no such finding. I accept that the applicant has overstated the risk identified by the Authority based on the country information. An acknowledgement that scarring had been a risk factor in the past for returnees does not equate to a finding that scarring could be a significant risk factor if the applicant were returned to Sri Lanka in the reasonably foreseeable future.
It is necessary to have careful regard to the actual propositions that the Authority articulated based on country information. The Minister has identified relevant extracts in his submissions, and I accept the Minister’s submissions that:
(a)the Authority’s observation that country information ‘does not indicate that body scars alone are now likely to attract the attention of the authorities’ suggests that the country information did not support the proposition that the existence of scars alone would lead to any adverse interest in the applicant and this was significant given that the Authority otherwise found that the applicant was of no adverse interest to the Sri Lankan authorities for any other reason; and
(b)the Authority’s observation that scarring was relevant only when a person was detained and stripped does not assist the applicant in circumstances where the Authority found that the applicant was of no adverse interest to the Sri Lankan authorities and where there was no information before the Authority to suggest that the applicant would be detained and stripped on his return to Sri Lanka.
In my view, the Authority did not act unreasonably in failing to seek new information from the applicant about whether his scarring may come to the attention of the authorities.
I acknowledge that the delegate did not consider whether the applicant would face harm as a result of any scarring and neither party has suggested that the applicant’s scarring was discussed in the interview with the delegate. However, nothing in CRY16, ABT17 or any other case that the parties referred to in their submissions establishes any general principle that it will be unreasonable for the Authority not to exercise the discretion in s 473DC any time that the Authority considers an issue that was not addressed by the delegate. Therefore, while it is appropriate to take into account, in assessing the reasonableness of the Authority’s decision not to exercise the discretion in s 473DC, that the delegate did not address the applicant’s scarring, this is not determinative.
In advancing his claims, the applicant did not make any claim that he may face any risk of harm as a result of the scars on his back. The Minister submitted, and I accept, that it was up to the applicant to advance evidence and arguments in support of his claims and for the Authority to decide if those claims are made out, and the Authority was not required to assist the applicant to provide better or more complete evidence or to make out his claims: see s 5AAA of the Migration Act; Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187].
Counsel for applicant submitted that this submission misses the point because it was the Authority that identified that the applicant’s scarring needed to be treated as a claim.
Decision-makers in migration matters will frequently consider claims that are not articulated by an applicant, and these unarticulated claims can often be resolved based on the existing materials before the decision-maker, such as country information. There may be some cases where the Authority identifies a claim that emerges from the materials before it, which has not been addressed by an applicant or the delegate, where it would be unreasonable for the Authority to proceed to determine the claim without exercising the discretion in s 473DC to invite the applicant to comment. I do not consider that this is such a case, taking into account the manner in which the applicant articulated his claims, the findings made by the Authority and the evidentiary basis for those findings.
As mentioned above, the applicant provided the photographs of his scars only as evidence to support his claim of past torture, without claiming that his scarring could give rise to any fear or risk of harm. The applicant was represented by a migration agent at the time he advanced his claims to the delegate and when he provided the photographs to the delegate.
The approach of the Authority was essentially to identify that while the existence of scars has been a risk factor in the past, by the time of the Authority decision, scarring was no longer of itself likely to attract the attention of the authorities and would only be an issue now if someone was to be detained and stripped. The Authority was not satisfied that the applicant would be at risk of being detained and stripped. This was based on the Authority’s finding that the applicant would not come to the adverse attention of the authorities on his return to Sri Lanka. I acknowledge that the Authority referred to the applicant having previously exited and entered Sri Lanka without attracting any adverse attention of the authorities. However, when the Authority’s reasons are read as a whole, it is clear that the main reason the Authority found that the applicant would not come to the adverse attention of the authorities, which informed its finding that he was not at risk of being stripped and detained, was the applicant’s lack of adverse profile. The applicant had been afforded an opportunity in his written claims and at his protection visa interview to discuss why he thought he would be harmed by the authorities before the matter was referred to the Authority.
Once it is understood that the Authority’s finding that the applicant would not face a risk of harm due to his scarring was based on country information and aspects of the applicant’s risk profile which he had already been afforded an opportunity to comment on, it was not unreasonable for the Authority to decline to exercise the discretion in s 473DC to get new information from the applicant.
Contrary to the applicant’s submissions, it is not obvious that the applicant might have had relevant information to provide, such as the reason he did not come to the attention of the authorities when he entered Sri Lanka previously. This may be based on the subjective views of the authorities or relevant officers at the time of the applicant’s last arrival, in which case, the applicant may not be able to meaningfully comment on it. In any event, as the applicant acknowledged, he may well face different procedures returning to Sri Lanka after having departed Sri Lanka unlawfully. It is not to be expected that the applicant will have any firsthand knowledge of that process, and the Authority had before it the same country information as the delegate about the treatment that the applicant may face as a returnee who departed Sri Lanka unlawfully.
Taking into account all of the relevant circumstances, the Authority did not act unreasonably in not exercising its discretion to get new information. Ground 2 is not established.
Ground 3
By ground 3 the applicant asserts that the Authority’s failure to consider getting new information, or its decision not to get new information, from the applicant in relation to the inconsistencies in his evidence was legally unreasonable.
For the same reasons as I explained at [48] and [49] above, I do not accept that the Authority failed to consider the possible exercise of the discretion in s 473DC to get new information from the applicant.
I then turn to whether the Authority acted unreasonably in not exercising its discretion to get new information about the inconsistencies in the applicant’s evidence.
The applicant in his written submissions noted that the Authority identified nine inconsistencies and four implausibility findings in the applicant’s evidence. The Authority identified at [18]-[26] of its reasons the following inconsistencies:
18.Firstly, the applicant claimed in the SHEV interview was that he did not see who had abducted [his friend] and that he only learned that the Karuna Group was responsible when [his friend] returned three days later. However, the applicant also claimed that [his friend’s] release was secured when [his friend’s] father went to speak with his captors, and that [his friend’s] father knew where [his friend] was because the applicant’s family informed him.
19.Secondly, the applicant’s claim in his SHEV statement that he was abducted by the Apache Group in April 2008 was inconsistent with information provided in the entry and SHEV interviews. In the SHEV interview, the applicant initially stated on two separate occasions that he was abducted by the Apache Group in August 2008, although later in the interview this was corrected to April 2008. When asked by the delegate how he knew he had been abducted by the Apache Group, he responded that the Apache Group was made up of two elements – the SLA and the Karuna Group. The applicant also said he feared returning to Sri Lanka because he would face harm from the SLA and the Karuna Group. However, in the entry interview, the applicant said it was the ‘CID’ (Criminal Investigation Department) who had arrested him in April 2008 and that he feared returning to Sri Lanka because his life was in danger from the CID. He further stated in the entry interview that both the military and Karuna Group operated in his area, but that he did not have any problems or involvement with those groups.
20.Thirdly, the applicant’s claim in his SHEV statement that he came to the adverse attention of the Apache Group on account of [his friend’s] refusal to join the Karuna Group was inconsistent with information provided in the entry interview, where he stated that [his friend] was in fact already connected with the Karuna Group and that the CID wanted to know where [his friend] lived.
21.Fourthly, the applicant’s claim that he fled to India using a fraudulently obtained passport in another person’s name in May 2008 was inconsistent with his earlier evidence in the entry interview, where he stated that he travelled to India legally. Further, I note in ‘Form 80’ which was submitted with his invalid application for a Class XA Subclass 866 Protection visa, the applicant claimed that he previously held a passport and the name in that passport was his own name.
22.Fifthly, the applicant’s claim in his SHEV application, SHEV statement and SHEV interview that he remained in India for about 18 months from May 2008 until December 2009, was inconsistent with his evidence in his PV statement and entry interview, where he stated that he remained in India for only six months.
23.Sixthly, the applicant’s claim in his SHEV application, SHEV statement and SHEV interview that he remained in India until he returned to Sri Lanka in June/July 2012 was inconsistent with his evidence in his PV statement and entry interview, where he stated he went to Thailand in 2011 and remained there for 18 months prior to returning to Sri Lanka.
24.Seventhly, the applicant’s claim towards the end of the SHEV interview that his Malaysian visa indicated he was in Malaysia for medical reasons, and it was for that reason he did not attract adverse attention by the authorities upon return to Sri Lanka in June/July 2012 was inconsistent with his earlier evidence in the same interview, and in the entry interview, that he held a tourist visa while in Malaysia.
25.Eighthly, the applicant’s claim in his SHEV statement that his parents had been house arrested and interrogated after he left Sri Lanka contradicted his evidence in the SHEV interview, where he stated that his parents were not arrested or interrogated, but monitored by the authorities. He also advised the delegate that he was unsure whether this monitoring began before or after he left Sri Lanka on 27 July 2012. In his PV statement, the applicant advanced no claim that his parents were arrested, interrogated or monitored.
26.Ninthly, the applicant’s evidence in his SHEV application and SHEV interview was that when he returned to Sri Lanka in June/July 2012, and prior to his departure from Sri Lanka on 27 July 2012, he was residing with his parents in Kalmunai. He also stated that he received a telephone call from his cousin, who lived opposite the applicant’s family home in Batticaloa, who stated that the Apache Group had visited his house and advised his cousin that they knew the applicant had returned to Sri Lanka. However, in the entry interview, the applicant stated that he was living in the family home in Batticaloa prior to his departure from Sri Lanka. He also stated he departed Sri Lanka from the family home in Batticaloa to board the boat to Australia.
The Authority set out at [28]-[31] of its reasons the following aspects of the applicant’s claims that it considered implausible:
28.Firstly, I find it difficult to accept that the Karuna group wanted to recruit a person that they ‘harboured animosity’ towards.
29.Secondly, the applicant claimed in the SHEV interview that [his friend’s] disappearance was not reported to the authorities at the time he went missing due to distrust in the police. However, as noted above, the applicant’s oral evidence was that he did not know [his friend] had been abducted by the Karuna Group until he returned three days later.
30.Thirdly, I find it difficult to accept that the applicant, with no prior involvement or connection with the LTTE, would be released by the Apache Group on the basis that he would become a ‘collaborator’ and pass the Apache Group information about the LTTE.
31.Fourthly, I find it difficult to accept the applicant’s claim in the SHEV interview that he was unable to seek medical treatment after he was severely beaten and burned with iron rods because the hospital was connected to the military.
The applicant submitted that the Authority’s findings above were not mentioned in the delegate’s decision or otherwise raised with the applicant before the Authority made its decision. The applicant submitted that the Authority’s rejection of his claims that the applicant’s friend had been abducted, and that the applicant had been abducted, detained and physically harmed involved a significant divergence from the delegate’s reasons. This is because the delegate accepted that the applicant’s friend was abducted in 2008 and may have been involved with the LTTE, and relied on a different basis to reject the claims that the applicant was abducted, held and tortured.
The applicant submitted that the present case ‘closely resembles’ DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 (DFW16). In DFW16, Barker J found that the Authority unreasonably failed to consider the exercise of its discretion to get new information from the applicant in circumstances where the Authority made adverse credibility findings against an applicant based on inconsistencies in his protection visa application and an earlier invalid application, and where the delegate had not referred to the earlier invalid application. Justice Barker said at [62]:
Indeed, in circumstances where there had been a gap of more than two years between the making of the 2013 protection application and the receipt of the 8 September 2015 letter from the Department inviting the SHEV application; the making of the SHEV application some two months later in November 2015, which in its terms did not make any reference to the protection application; the decision of the delegate making no reference to the 2013 protection application or the grounds advanced in support of it; and the ambiguities as to the status of the 2013 application arising from the 8 September 2015 Departmental letter advising of the invalidity of the 2013 application, and returning the copy of it with advice that it would not “be processed any further”; all should have caused the Authority at least to consider whether it should invite the appellant to comment on the apparent inconsistencies it had identified as arising out of the two applications in its own decision-making process.
In response to the applicant’s reliance on DFW16, the Minister submitted that analogising from one case to another is the wrong approach to assessing legal unreasonableness. The Minister also referred to two cases in which DFW16 had been distinguished. These cases were:
(a)BDR18 v Minister for Home Affairs [2020] FCA 212, in which Lee J distinguished DFW16 on the basis that in DFW16 ‘the previous visa application that was not referred to by the delegate appeared to be a significant, if not the only, piece of evidence that the IAA compared with the appellant’s subsequent evidence to reach its conclusion that there were inconsistencies in the appellant’s evidence over time’ and in BDR18 the earlier visa applications were ‘simply part of a body of material noted by the IAA such that none had particular significance or were the only basis for the finding made by it’: see BDR18 at [56]; and
(b)CQW17 v Minister for Home Affairs [2019] FCCA 643, in which Judge Manousaridis distinguished DFW16 on the basis that in CQW17 the Authority did not ‘only rely on the inconsistent statement’: at [42][1].
[1] An application for an extension of time to appeal from this judgment was dismissed on 1 December 2022: see CQW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1436.
Turning to the facts of the present case, I do not accept that the Authority acted unreasonably in not inviting the applicant to comment on the inconsistencies and implausibility findings that formed the basis of its reasons for rejecting the applicant’s claims. The Authority is required to consider the review material for itself and form its own conclusions in respect of the applicant’s claims: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 (DGZ16) at [72]. In so doing, the Authority is not required to disclose to an applicant its thought processes or doubts and provide the applicant with an opportunity to respond. The applicant was on notice from the delegate’s decision that his credibility was in issue, because the delegate did not accept all of his factual assertions.
I acknowledge that the delegate accepted that the applicant’s friend had been abducted. However, when one looks at the delegate’s reasons, it is clear that the delegate had reservations about the applicant’s evidence in this regard. The delegate said:
The applicant was unable to provide the detailed narrative I would expect in recounting the story of this nature, instead providing limited details beyond that mentioned in his statement. Further it seems unreasonable that the Karuna group cadres would attempt to recruit someone they hated. Given [the applicant’s friend’s] refusal, it seems further unlikely that the cadres would release him without further harm. Country information does support the occurrence of kidnappings during the conflict. I am willing to accept that [the applicant’s friend] was kidnapped in 2008.
The applicant provided no evidence in support of [his friend’s] claimed membership of the LTTE. However given [the applicant’s friend’s] background as a Tamil from the north, I accept that he may have been involved with the LTTE in some capacity, though I have no evidence to support this may have extended beyond low-level activity.
It appears from this that the only basis for accepting that the applicant’s friend had been kidnapped was country information which supported the occurrence of kidnappings during the conflict. The only basis on which the delegate was prepared to accept that the applicant’s friend may have been involved with the LTTE in some capacity is that he was a Tamil from the North. The delegate otherwise expressed doubts about the evidence. Further, there is nothing in the delegate’s decision to suggest that its acceptance that the applicant’s friend had been abducted was in any way based on the oral account of the applicant’s evidence given at his interview and therefore the error identified in ABT17 does not arise.
The applicant was clearly aware from the delegate’s decision that the credibility of his own claim to have been abducted and tortured was in issue, with the delegate rejecting this claim. The applicant provided no new information in relation to this claim in response to the delegate’s decision.
It appears in this matter that the Authority reached its own view of the material as it was required to do. The Authority gave reasons for rejecting the applicant’s claims which were more detailed than the reasons given by the delegate. It did not rely solely on the prior inconsistent application and instead relied on a range of sources in reaching its adverse credibility findings and, in this way, the present case is distinguishable from DFW16. The Authority did not need to put the applicant on notice or invite the applicant to comment on any additional reasons it had to reject his claims beyond those mentioned in the delegate’s reasons: see DGZ16 at [72].
Ground 3 is not established.
Conclusion
The applicant has not established that the Authority decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 February 2023
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