Der-Tsong Wong and Minister for Immigration and Border Protection
[2013] AATA 710
•3 October 2013
[2013] AATA 710
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1396
Re
Der-Tsong Wong
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 3 October 2013 Place Sydney Decision Summary:
The decision under review is affirmed.
Confidentiality Orders:
The Registrar is requested to restrict publication of these Reasons for Decision to the parties, their legal representatives and staff and officers of the Tribunal, until such time as the Tribunal has determined any objection Mr Wong might wish to make to the contents of part or parts of these Reasons for Decision.
Within 10 days from the date of this Decision Mr Wong must notify the Tribunal and the Minister for Immigration and Border Protection of any objection to any part of these Reasons and to provide reasons for any objection made.
The Minister is invited to make any submissions in reply provided they are given to the Tribunal and Mr Wong within seven days of receipt of Mr Wong’s submissions.
................[SGD]........................................................
Senior Member A K Britton
CATCHWORDS
MIGRATION—Citizenship application—Residence requirement—Whether the Applicant has a close and continuing association with Australia—meaning of “a period” in section 22(9) of the Australian Citizenship Act 2007 (Cth)—decision affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) – ss 15AA
Australian Citizenship Act 2007 (Cth) – ss 22(1); 22(1A); 22(9); 22A; 22B; 23
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Hingorani and Minister for Immigration and Citizenship [2011] AATA 266
Re Kilpi and Minister for Immigration and Citizenship [2012] AATA 605
Re Jiang and Minister for Immigration and Citizenship [2011] AATA 68
Re Minhas and Minister for Immigration and Citizenship [2011] AATA 388
Re Paula and Minister for Immigration and Citizenship [2012] AATA 543
Re Tanko v Minister for Immigration and Citizenship [2011] AATA 122
Re Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Re Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315
Re Young and Minister for Immigration and Citizenship [2012] AATA 268
SECONDARY MATERIALS
Australian Citizenship Instructions as at 1 July 2013
REASONS FOR DECISION
Senior Member A K Britton
3 October 2013
Mr Der-Tsong Wong was born in and is a citizen of Taiwan. He spent six years in Australia before returning to Taiwan in 1996 to work. His wife and two daughters remained in Australia. All are now Australian citizens.
In February 2013 Mr Wong unsuccessfully applied for Australian citizenship by conferral. He seeks review by the Administrative Appeals Tribunal of the decision made by a delegate of the Minister for Immigration and Border Protection to refuse that application on the ground that he did not satisfy the “residence requirement”, one of the criteria for the grant of Australian citizenship.
While there is no argument that Mr Wong did not meet the residence requirement, the parties disagree whether the discretion to treat the residence requirement as having been met can be exercised (s 22(9) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act)). That power can only be exercised if Mr Wong had “a close and continuing association with Australia” throughout those periods he was absent from Australia in the four years prior to making his application for Australian citizenship. During that period he returned to Australia on five occasions for a total of 87 days.
THE RESIDENCE REQUIREMENT
To be eligible for conferral of Australian citizenship a person must, among other things, satisfy the general residence requirement (s 22), the special residence requirement (ss 22A or 22B), or the defence service requirement (s 23). Mr Wong did not satisfy these requirements when he lodged his application for citizenship on 25 February 2013.
By s 22(1) of the Citizenship Act, the general residence requirement will be satisfied if:
(a)the person was present in Australia for the period of 4 years immediately before the day he or she made the application; and
(b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day he or she made the application.
By s 22(1A), a person will be taken to satisfy s 22(1)(a) if the total period of any absence in the four years immediately before the day they made an application for citizenship was not more than 12 months. By s 22(1B), a person is taken to satisfy s 22(1)(c) if the total period of any absence during the 12-month period immediately before the day he or she made the application was not more than 90 days and he or she was a permanent resident during each period of absence.
These provisions do not assist Mr Wong because in the four years immediately before making his application for citizenship, 25 February 2009 to 25 February 2013 (the statutory period), he was present in Australia for a total of 87 days, and in the 12 months immediately before making that application, present for 31 days.
THE DISCRETION
The Act confers on the decision-maker the power to treat the residence requirement as having been met in certain circumstances. The only applicable provision is s 22(9) which is in the following terms:
Ministerial discretion--spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9)If the person is the spouse … of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse or de facto partner of that Australian citizen during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Mr Wong satisfies paras (a), (b) and (c) of s 22(9).
The Minister has issued the Australian Citizenship Instructions (“the Instructions”) to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. Unless there are cogent reasons not to do so the Tribunal must take the Instructions into account (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). In respect of the discretion under s 22(9), there is no material difference between the version of the Instructions used by the Minister’s delegate in assessing Mr Wong’s application for citizenship (issued on 1 January 2013) and the current version (issued on 1 July 2013). The Instructions state (at [5.18]):
5.18 Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen (s 22(9) & (10))
….
Policy is that this discretion would usually be exercised only if the applicant was overseas with their Australian citizen spouse or de facto partner.
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:
·Australian citizen children
·long term relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·regular return visits to Australia
·regular periods of residence in Australia
·intention to reside in Australia
·employment in Australia where the person has been on leave to accompany their spouse or partner overseas
·ownership of property in Australia
·evidence of income tax paid in Australia over the past four years and
·evidence of active participation in Australian community based activities or organisations.
….
Application of the discretion
Mr Wong contends that the Minister’s delegate in assessing whether he had a close and continuing association with Australia misapplied s 22(9) by (i) having regard to those periods he was absent from Australia during the statutory period and (ii) not having regard to any period which predates the statutory period.
Are periods a citizenship applicant was not present in Australia relevant to the exercise of the discretion?
Mr Wong argues that the very purpose of s 22(9) is to permit the decision-maker to treat “a period” during which a citizenship applicant was not present in Australia as a period in which the citizenship applicant was present in Australia, and therefore time spent outside Australia is irrelevant to the assessment of whether the citizenship applicant had “a close and continuing association with Australia”. He contends, that the following extract from the Instructions (at [5.18]) is ultra vires:
In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d), it is policy that more weight should be given if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australian for at least this period.
….
Section 22(9) requires the decision-maker to be satisfied that the citizenship applicant had a close and continuing association with Australia during “that period”. The words “that period” refer to the words “a period” in the first sentence of s 22(9). The provision, read as a whole, makes plain that “a period” is a reference to a period or periods the citizenship applicant was not present in Australia.
I agree with Mr Wong that absence from Australia is not decisive for the purpose of determining whether the citizenship applicant had the requisite association with Australia during “that period”, meaning a period they were not present in Australia. I do not, however, agree with the contention that in assessing whether a person had the requisite association with Australia during “that period” the decision-maker should ignore the amount of time the citizenship applicant was absent from Australia during the statutory period. The task of assessing whether a person has the requisite association with Australia during the period or periods of absence from Australia cannot be undertaken in isolation and requires regard to be given to, among other things, the length of any absence or absences.
Does s 22(9) permit decision-maker to treat “a period” outside the statutory period as a period a citizenship applicant was present in Australia?
Mr Wong contends that in deciding whether he had the requisite association with Australia, the Tribunal should take into account the six years he was resident in Australia from 1990 to 1996. He argues that the words “a period” in the first sentence of s 22(9) should be read as “any period” and not, as contended by the Minister, as a period falling within the statutory period. In support of that proposition he cites Re Hingorani and Minister for Immigration and Citizenship [2011] AATA 266 and Re Kilpi and Minister for Immigration and Citizenship [2012] AATA 605.
The words “a period” in s 22(9) are not defined by the Act. The purpose of s 22(9) (and ss 22(6) and (11)) is to allow a decision-maker to treat a period “as one in which the person was present in Australia as a permanent resident” providing the other requirements of the provision are met. Recourse to these provisions only becomes necessary if a person does not satisfy (i) the general residence requirement (s 22(1)), that is, to be present in Australia throughout the statutory period and to be present in Australia as a permanent resident in the 12 months prior to making an application for citizenship, or (ii) the deemed residence requirement (ss 22(1A) and (1B)). Given that presence in Australia prior to the statutory period does not form part of the general residence requirement, no useful purpose would be served by allowing the decision-maker to treat a period prior to the statutory period as one in which the person was present in Australia as a permanent resident.
Hingorani and Kilpi are not, as suggested by Mr Wong, authority for the proposition that the words “a period” in s 22(9) includes a period that predates the statutory period. In Hingorani the question raised was whether the discretion in s 22(9) can only be exercised in respect of those periods where the citizenship applicant’s wife was an Australian citizen. The Tribunal (DP Handley) held that it did, but did not address whether the words “a period” extended to a period that predated the statutory period (see [13] to [16]). In Kilpi the Tribunal held that the words “a period” meant the four years immediately before the applicant applied for Australian citizenship ([38] to [42]).
In my opinion the words “a period” in s 22(9) should be read as meaning a period within the statutory period. That construction in my opinion would promote the purpose of the provision and, as instructed by s 15AA of the Acts Interpretation Act 1901 (Cth), should be preferred over that advanced by Mr Wong.
Nonetheless I accept that in deciding whether a citizenship applicant has the requisite association with Australia for the purpose of s 22(9), it is necessary to also have regard to the totality of the person’s association with Australia and, if relevant, any association that pre-dates the relevant period. While regard may be had to any association that pre-dates the statutory period the question posed by s 22(9) remains whether — during the statutory period — the citizenship applicant had the requisite association with Australia during that period or periods they were not present in Australia.
Factors relevant to Mr Wong’s association with Australia
Australian citizen children: Mr Wong’s two daughters have resided in Australia since 1990 and were granted citizenship in 1992. They completed their secondary and tertiary studies in Australia. Each now works in Australia.
Long term relationship with Australian citizenship spouse: Mr Wong and Mei-Chong Lee married in Taiwan in 1977. Mrs Lee remained in Australia when her husband returned to Taiwan in 1996 and was granted Australian citizenship at the same time as her daughters. There is no evidence to suggest that the marriage is other than genuine.
While her daughters were growing up, Mrs Lee remained in Australia when her husband returned to Taiwan for work. Over the past decade she has accompanied her husband to Taiwan on a more regular basis. The following table shows the travel movements of Mr Wong and Mrs Lee throughout the statutory period:
Mr Wong Mrs Lee Arrive
AustraliaDepart
AustraliaDays in Australia Arrive
AustraliaDepart
AustraliaDays in Australia 24 January 2009 7 February 2009 15 30 August 2008 7 February 2009 162 26 December 2009 2 January 2010 8 26 December 2009 4 March 2010 69 NA NA NA 10 July 2010 7 October 2010 90 25 December 2010 3 January 2011 10 25 December 2010 28 March 2011 95 NA NA NA 29 June 2011 3 October 2011 98 24 December 2011 30 January 2012 38 24 December 2011 31 March 2012 98 10 October 2012 25 October 2012 16 30 June 2012 25 October 2012 119 9 February 2013 23 February 2013 15 9 February 2013 27 April 2013 79
Reasons for leaving Australia: Mr Wong states that the reason he left Australia in 1996 was because, despite holding qualifications in electrical engineering, he found it difficult to obtain suitable permanent employment in Australia. Mr Wong was employed as an electrician by Westinghouse Electric from October 1991 until retrenched in March 1993. In February 1995 he commenced as a Marketing and Export Coordinator with Ausfa International Pty Ltd and remained in that position until the company closed down in 1996.
In an effort to improve his employment prospects Mr Wong obtained additional qualifications while living in Australia including a master’s degree in safety science from the University of New South Wales, an associate diploma in engineering (electrical engineering) and a certificate in Trade Contractors Management from TAFE NSW.
Extended family in Australia: Mr Wong’s nephew and his two children have lived in Australia since about 1985.
Period spent in Australia throughout the statutory period: Mr Wong spent about six per cent of the statutory period (87 days) in Australia.
Period spent in Australia since arrival: Mr Wong resided in Australia with his wife and daughters between May 1990 and July 1996, when he returned to Taiwan. Since 1996 he has used his annual leave to make regular visits to Australia, usually twice a year for about 14 days. From time to time he has taken leave without pay so he can spend more time in Australia. Since 1996 he has spent 445 days in Australia.
Intention to reside in Australia: According to Mr Wong, soon after he moved to Australia he realised that it would be difficult to secure permanent employment. For that reason he decided not to apply for citizenship at the same time as his wife and daughters. He stated that he was concerned that Australian citizenship might have made securing permanent employment in Taiwan difficult.
Mr Wong is now 67 years of age and says he is considering retirement and returning to live in Australia with his wife and daughters to “make up for lost time”. In oral evidence he claimed that he now intends to retire in 2014. He testified that it was his understanding that had he left his current position in Taiwan before he turned 65, his pension benefits would have been significantly reduced. For this reason he claimed he had decided to stay in his current position at least until he reached 65 years of age.
According to Mr Wong when he retires he would like to work part-time and to that end looks at jobs in Australia advertised on the internet. He explained that one of the reasons he has applied for citizenship is to enable him to be considered for jobs within the government and the defence sector, where he believes that citizenship is a pre-requisite. He stated that he has not applied for any position in Australia in the last five years.
Employment in Australia: Mr Wong has not worked in Australia since 1996.
Business interests in Australia: Mr Wong has held a small parcel of shares in an ASX-listed company since 2000.
Ownership of property in Australia: In 2005 the Wong family purchased a home in Sydney. To obtain finance the title of the property was registered in the names of Mr Wong’s daughters. Mr Wong and Mrs Lee contributed about 30 per cent of the purchase price.
According to Mr Wong there is a clear understanding that the property is the family home and that he and Ms Lee will live there during their retirement.
The insurance for the property is in Mr Wong’s name.
Mr Wong holds a NSW drivers licence. He is the registered owner of two cars which are used by his family in his absence.
Ownership of property outside Australia: Mr Wong owns an apartment in Tainan, Taiwan, where he resides while in Taiwan. He claims that when he retires he will keep the apartment and stay there when he visits Taiwan, which he expects will be for about three months each year.
Money invested in Australia: Mr Wong and Mrs Lee have a joint Australian bank account into which Mr Wong makes regular deposits. Since 2005 the amount he has deposited into that account has varied from between about $4,000 and $190,000.
As a consequence of his employment in Australia in the 1990s Mr Wong has a small amount of money in Australian superannuation funds.
Evidence of income tax paid in Australia in respect of the relevant period: Mr Wong has not been liable for or paid income tax in Australia since 1996.
Evidence of active participation in Australian community-based activities or organisations: In support of his claim of actively participating in Australian community-based activities, Mr Wong points to:
An Electrical Contractor Licence l certificate issued by the Building Services Corporation in 1994
An electrical fitter certificate issued by the NSW Local Electrical Trades Committee in 1990 and
A statement issued by the Long Service Payment Corporation in 1994.
In oral evidence Mr Wong also pointed to his interest in Australian occupational and safety rules and practice and his attendance at a trade fair in 2012 in Sydney.
Mr Wong claims to have an interest in Australian current affairs. He uses the Sydney Morning Herald as his internet homepage and subscribes to a regular newsletter published by WorkCover NSW.
Mr Wong claims to have three friends in Australia who he has met through his wife. He says he had a very good friend in Australia who has passed away. Another friend whom Mr Wong says he met in Taiwan “comes and goes” from Australia.
DID MR WONG HAVE A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA THROUGHOUT THE RELEVANT PERIOD?
Whether Mr Wong had “a close and continuing association” with Australia throughout the relevant period must be objectively assessed having regard to all relevant factors, including those listed in the Instructions. The indicia of association listed in the Instructions have no hierarchy or weighting. The weight to ascribe to each and whether one or more should be given greater weight than others is a matter for the decision-maker, as is the question of whether other indicia of association might be relevant. The forming of an opinion about whether a person has demonstrated the requisite association is not a simple mechanical exercise undertaken by merely tallying the relevant factors.
The phrase “close and continuing association” is not defined in the Act. The words in that phrase are ordinary English words and should be given their ordinary meaning in the context in which they appear. The Australian Oxford Dictionary defines “close” as “having a strong or immediate relation or connection”, “continuing” as meaning “to remain in existence or unchanged” and association as “the act or an instance of associating; fellowship or companionship”. The Macquarie Dictionary offers similar definitions, defining “close” as “near, or near together, in space, time, or relation”, “continuing” as “to last or endure” and “association” as “the act of associating … connection or combination”.
Mr Wong argues that in assessing the nature of his association with Australia it is highly relevant that when he moved to Australia in 1990 it had been his wish to reside in Australia on a permanent basis, and had it not been for his inability to find suitable employment and the need to support his family, he would have done so. He argues that his association with Australia consists of more than simply his ties to immediate family, pointing to, among other things, his beneficial interest in the family home, ownership of two cars, the joint bank account with his wife, his investments in Australia, involvement in Australian organisations and the qualifications he holds from various Australian educational institutions.
I accept that when Mr Wong migrated with his family in the 1990s he intended to reside in Australia. I also accept that when he returned to Taiwan in 1996 he remained optimistic that a suitable position might become available and would enable him to return to Australia. However it is apparent that as time progressed and such employment did not materialise, he resigned himself to the fact that he had to remain in Taiwan at least until he reached retirement age. It is unclear when he came to that realisation but it was probably well before the commencement of the statutory period. I also accept he now plans to return to Australia in around 2014.
The evidence Mr Wong cites in support of the assertion that he is actively involved in Australian community-based activities and organisations establishes that he worked in Australia over 17 years ago and during that time was issued trade certificates and the like. In my opinion it falls well short of evidence that demonstrates active participation in Australian community-based activities or organisations. Similarly the evidence does not support a finding of Mr Wong having established any significant social networks in Australia: the friendships he referred to in oral evidence are apparently largely maintained by his wife, and there is no evidence of Mr Wong maintaining those relationships when he returns to Taiwan. These observations are not intended to be a criticism of Mr Wong or his commitment to Australia. It is entirely understandable that the little time he is able to spend in Australia is devoted mainly to his family.
I accept that the circumstances in which Mr Wong finds himself of having to live apart from his family are not of his choosing. Despite building on his already impressive qualifications and making diligent efforts to find employment while in Australia in the 1990s, he was ultimately forced to return to Taiwan to find work to support his young family. As a consequence, while he has some association with Australia in the past 17 years, it has been limited. In my opinion, of the indicia of association, Mr Wong’s relationship with his wife and daughters and his interest in the family home are the most significant. While there is some other evidence of association, none of the other indicia relied upon by Mr Wong could be described as especially significant.
Mr Wong contends that his association with Australia is demonstrably closer than the applicants in the following cases where the Tribunal decided not to exercise the discretion in s 22(9):
·Re Jiang and Minister for Immigration and Citizenship [2011] AATA 68; Mr Wong contends that it is significant that unlike him the applicant lived apart from his wife, an Australian citizen; had never worked or paid taxes in Australia and apparently intended to continue to maintain significant business interests in China if granted citizenship. The applicant had spent only 76 days in Australia in the four years prior to making an application for citizenship
·Re Minhas and Minister for Immigration and Citizenship [2011] AATA 388; where the applicant had never resided in Australia; had commitments to elderly parents who resided outside Australia; and had applied for citizenship of Bahrain.
·Re Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118, where the applicant held significant business and property interests outside Australia requiring his constant attention.
Mr Wong argues that in exercising the discretion the totality of his circumstances must be taken into account. He contends that a decision to exercise the discretion would be consistent with the approach taken by the Tribunal in: Re Tanko v Minister for Immigration and Citizenship [2011] AATA 122, Re Paula and Minister for Immigration and Citizenship [2012] AATA 543, Re Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315 and ReYoung and Minister for Immigration and Citizenship [2012] AATA 268.
The cases referred to by Mr Wong provide limited assistance in undertaking the task of deciding whether he had the requisite association in Australia during the statutory period. While consistency in decision-making is desirable, the facts of each are invariably different.
Mr Wong argues that in the assessment of his association with Australia, significant weight should be given to his relationship with his wife, an Australian citizen. I agree. If, however, he is also suggesting that that relationship, together with the evidence of his wife accompanying him in Taiwan during the statutory period, is determinative, I cannot agree. The assessment of whether a person has a close and continuing association with Australia requires all relevant factors to be taken into account, not only the existence of a relationship with an Australian citizen spouse.
While the totality of Mr Wong’s association with Australia must be taken into account for the reasons discussed above, the focus of s 22(9) is on the association with Australia throughout the statutory period. Mr Wong plainly had some association with Australia during the statutory period. I am not satisfied, however, that it could be described as close and continuing.
I have decided that the preferable decision is to affirm the decision to refuse to approve Mr Wong’s application for Australian citizenship.
CONFIDENTIALITY ORDERS
Mr Wong sought orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to prohibit the publication of any information of a personal nature relating to him or members of his family. His principal concern was that detailed information of a personal nature that he had provided in support of his application, which included his tax file and bank account numbers and residential address, might be included in the published Reasons for Decision.
Section 35(3) of the AAT Act instructs that in deciding whether the publication of some or all evidence should be prohibited, the Tribunal must take as the “basis of … consideration” the principle that it is desirable that the public should have access to evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal. Section 35 also instructs that “due regard” be paid to any reason given for why publication or disclosure of the evidence should be prohibited or restricted.
Sections 43(2B) and 43(3) of the AAT Act require the Tribunal to include in its written Reasons for Decision findings on material questions of fact and references to the evidence or other material on which those findings are based. That obligation and the principle of open justice enshrined in s 35 of the AAT Act sometimes come into conflict with legitimate privacy concerns. It is a matter of common knowledge that the type of information about which Mr Wong is especially concerned, such as bank account and tax file numbers, can be misused by third parties.
In these proceedings I advised Mr Wong that my practice is not to include unnecessary personal information in Reasons for Decision, especially so-called personal identifiers: bank account numbers and the like. To allay his concerns, with the agreement of the Minister, I decided to request the Registrar to restrict publication of these Reasons for Decision to the parties, their legal representatives and staff and officers of the Tribunal, until such time as I have determined any objection Mr Wong might wish to make to the contents of part or parts of these Reasons for Decision. I have granted Mr Wong 10 days from the date of this Decision to notify the Tribunal and the Minister of any objection to any part of these Reasons and to provide reasons for any objection made. The Minister is invited to make any submissions in reply on this point provided they are given to the Tribunal and Mr Wong within seven days of receipt of Mr Wong’s submissions.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ..................[SGD]......................................................
Associate
Dated 3 October 2013
Date(s) of hearing 3 September 2013 Date final submissions received 10 September 2013 Advocate for the Applicant Shine Wong Solicitors for the Respondent Clayton Utz
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