DLT18 v Minister for Home Affairs
[2018] FCCA 3302
•14 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DLT18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3302 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority erred in its consideration of the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) – whether the Immigration Assessment Authority’s findings were open to it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36 |
| Cases cited: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | DLT18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1856 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 14 November 2018 |
| Date of Last Submission: | 14 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2018 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Monica Perotti (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1856 of 2018
| DLT18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application, filed on 4 July 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority dated 21 June 2018 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise Visa.
When the applicant’s application was filed he was legally represented. However, on 7 November 2018, in writing, the applicant dismissed the services of his lawyer in the following terms:
“I [applicant’s name] hereby instruct Mr Ejaz Khan solicitor to withdraw as a solicitor because I am not agree with my advice that my case is weak.”
(Errors in original)
The applicant was unrepresented before the Court at the hearing this morning, although had the assistance of a Nepali interpreter. The applicant sought an adjournment in order to obtain further legal advice. In relation to his application for an adjournment, the applicant told the Court he had sacked his lawyer. I asked the applicant if he had approached any lawyer or had the name of any lawyer or had an appointment with any lawyer. He replied he had not.
I raised with the applicant that he had chosen to dismiss the services of his lawyer and had had seven days from that point to have made inquiries or made an appointment to meet with another lawyer. In light of the deliberate dismissal of his lawyer’s services and his failure to take any steps to appoint another lawyer, the applicant’s application for an adjournment was refused.
In relation to the grounds of his application and his application generally, before inviting the applicant to say whatever he wished, I explained to the applicant the role of this Court. I explained that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court was whether or not the decision was made according to law. I explained that this Court had no power to interfere with the decision of the Authority unless the Court was satisfied that the Authority’s decision was affected by a mistake that goes to its jurisdiction. I explained that disagreement with various findings and conclusions of the Authority rarely by itself establishes such a mistake. I explained that even if the applicant disagrees with those findings, if they were open to the Authority on the evidence and material before it, the applicant’s disagreement alone would not be sufficient to demonstrate jurisdictional error.
The applicant confirmed that he relied on the grounds of his application which are as follows:
“1. The second respondent Immigration Assessment Authority (IAA) failed to give sufficient weight to the applicant claim of well-founded fear of persecution and evidence in support of protection visa and relied upon irrelevant consideration by asking questions outside of his claim to discredit him.
Particulars
Paragraphs 5 to 11 and 22
2. The IAA in addressing the Applicant's claim for complementary protection failed to adequately consider the risk that the applicant will suffer significant hmm if returned to Nepal.
Particulars
Paragraphs 46 49.”
(Errors in original)
Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
It was plain that the applicant was not able to speak to the grounds as presently pleaded. Ground 1 refers to questions asked of the applicant by the Authority. The applicant did not attend any hearing before the Authority and could, therefore, not have asked any questions.
I asked the applicant what was his complaint about the Authority’s decision. He was unable to identify any particular error. The applicant said that there was no safety for him in Nepal, that it was not an environment to which he could return, that he had spoken the truth to the Delegate, and that he wished to either stay in Australia or have a further opportunity to have his claims assessed.
Again, I endeavoured to explain to the applicant that the only issue before this Court was whether or not the decision of the Authority was made according to law. The applicant confirmed he had nothing further to say.
Following the first respondent solicitor’s submissions, the applicant was again invited to say whatever he wished either in response to anything that he had heard or in support of his application generally. The applicant began to reiterate his claims. I interrupted the applicant and again explained that it was not for this Court to reconsider those claims. The applicant then repeated that it was unsafe for him to return to Nepal and that he wished to have another opportunity to have his claims considered.
The background, the applicant’s claims and the Authority’s decision are accurately summarised in the submissions of the solicitor for the first respondent as follows:
“Background
3. The applicant, a citizen of Nepal, arrived in Australia on 25 November 2012, as an unauthorised maritime arrival (Court Book (CB) 36 and 43).
4. On 28 April 2016, an officer of the Minister's Department wrote to the applicant to advise him that the Minister had exercised the power under s 46A(2) of the Migration Act 1958 (Cth) (Act) to permit him to lodge a valid application for a Temporary Safe Have Enterprise visa or SHEV.
5. On 18 May 2017, the applicant applied for a SHEV (CB 23-73; see also CB 74). The applicant attended an interview with a delegate of the Minister on 8 March 2018 (CB 82 and 90) and on 6 April 2018, the delegate refused to grant the applicant a SHEV (CB 85-100).
6. On 13 April 2018, the Minister referred the delegate’s decision to the Authority pursuant to s 473CA to the Act (CB 102). By a letter and accompanying information sheet of the same date, the Authority relevantly advised the applicant that he could provide new information in support of his case, but that the Authority could only consider such information in limited circumstances (CB 102- 108). The information sheet also informed the applicant that he could make a submission to the Authority about why he disagreed with the delegate’s decision and about any claim or matter that was not considered. However, no submission or further information was received from the applicant (CB 117, [4]).
7. On 21 June 2018, the Authority affirmed the delegate’s decision not to grant the applicant the SHEV.
The applicant’s claims
8. The applicant’s claims for protection were initially set out in a statement accompanying his visa application and are summarised as follows (CB 66-68):
(a) The applicant was born in Bagum and remained there until 2008.
(b) He was employed by the Communist Party of Nepal as an area secretary from 1995 to 1997. In 1997, he was elected a member of the Lamjung District 2 Government Committee and was involved in community development work.
(c) He refused to join the Communist Party of Nepal (Maoists) and as a result, they accused him of being a spy and reactionary. In 2004, Maoists attacked him at his home and broke his leg.
(d) The applicant resigned from his employment because he became a supporter of the King. After the monarchy was abolished, he was targeted by Maoists and other supporters of the republic. They planned to attack him so he and his family moved to Kathmandu.
(e) The applicant continued to receive threats in Kathmandu and different groups tried to attack him on two or three occasions.
(f) The applicant sometimes went to India for his safety. He discovered that he was being followed there and as a consequence, did not feel safe in India because of the connections there with Nepalese political parties.
Authority’s decision
9. The Authority had regard to the material referred to it under s 473CB of the Act and noted that no further information had been obtained or received (CB 117, [3] – [4]).
10. Having summarised the applicant’s claims (CB 117, [5]), the Authority accepted that the applicant was a citizen of Nepal of Gurung ethnicity who completed tertiary education, worked as a teacher and had a wife and three children who continued to live in Kathmandu (CB 118, [8]). The Authority noted that the applicant did not make claims to fear harm based on his ethnicity or religion, but rather his claims centred on his political affiliations and attacks and threats made against him as a result (CB 119, [9]).
11. The Authority made detailed adverse credibility findings, finding that the applicant’s evidence was “evasive, vague and confused” (CB 119, [13] – [15]). It noted that the applicant needed significant prompting before he made claims of being attacked in his protection interview (CB 119, [14]). The Authority further noted that the applicant had little knowledge or understanding of the communist party or the monarchists, or the reasons why he joined them (CB 120, [16]). The Authority considered the applicant’s claim advanced during the protection interview that he had difficulty recalling evidence because of his depression. However, the Authority did not accept this explanation as there was no medical evidence to support it (CB 119, [13]).
12. The Authority then turned to the inconsistencies it had identified in the applicant’s evidence. The Authority found that the applicant changed his evidence in relation to the 2004 attack in response to the delegate’s concerns and was not recounting a true event (CB 120, [17]). The Authority found that the applicant’s account of his employment was also inconsistent and on that basis did not accept as credible that he was without income or unemployed for 8 years prior to his departure from Nepal (CB 120, [20]).
13. The Authority also found concerning the applicant’s failure at the arrival interview to raise the claim that he was attacked. The omissions and inconsistencies reinforced the Authority’s view that the applicant was not recounting true events (CB 121, [21]).
14. The Authority observed that police clearance notes demonstrated that the applicant did not have an adverse record (CB 121, [23]). It had regard to the 1997 election identity card provided by the applicant, but noted that this was inconsistent with the applicant’s claims and did not appear on official letterhead or have any security features. In those circumstances, it placed little weight on this document (CB 121, [24]).
15. Turning to the letter from the “Association of Sufferers from the Maoist Nepal”, the Authority noted this letter was dated after the applicant’s arrival in Australia, which led it to believe that it was obtained to enhance the applicant’s protection claims. The letter was also inconsistent with the applicant’s evidence. While the Authority placed little weight on the inconsistencies in the date of the applicant’s departure from Nepal, there were further inconsistencies in the letter and in those circumstances, and noting the prevalence of fraudulent documents, the Authority placed no weight on the letter (CB 121, [25]).
The Authority accepted the following claims:
(a) the applicant had an interest in politics and was employed at the government district committee until 2003 (CB 122, [27]);
(b) he might have moved from Begam to Kathmandu in 2004/2005 when his job was dissolved by the government (CB 122, [28]);
(c) the applicant’s political affiliations changed and he now supported the Democratic Party and not the Royalists (CB 122, [28]); and
(d) he might have attended a protest (CB 123, [33]).
17. The Authority otherwise rejected the applicant’s claims relating to attacks (CB 122, [29]), threats or targeting by Maoists in Kathmandu (CB 122, [30]), detention, arrests or injury during protests (CB 122, [32]), that he was a high profile supporter of the King (CB 123, [33]), or that he was unemployed or hiding to avoid harm (CB 123, [34]). The Authority concluded that the applicant fabricated his claims of threats and attacks and did not accept that he faced any harm from Maoists or other political parties or opposition groups (CB 123, [38]).
18. The Authority did not accept that the applicant faced any harm as a result of his past pro Monarchy support or political affiliations (CB 124, [39]). Nor did it accept that the applicant would face a real chance of harm from Maoists or other groups or that he would be viewed as a spy or traitor. The Authority concluded that the applicant did not face a real chance of harm on the basis of “any reasons claimed or at all” (CB 124, [43]).
19. The Authority therefore found that the applicant did not meet the definition of refugee in s 5H(1) and thus did not satisfy s 36(2)(a) of the Act (CB 124, [44]).
20. The Authority also rejected the applicant’s claim for complementary protection under s 36(2)(aa) on the basis that there was no real risk that he would suffer significant harm if he were returned to Nepal (CB 125, [48]).”
Whilst the applicant did not make any submission in support of either of the grounds of the application, the first respondent’s solicitor attempted to identify what the complaints, as disclosed in those grounds, may be.
The complaint in Ground 1 that the Authority asked questions of the applicant to discredit him and in so doing relied on irrelevant considerations, is not capable of establishing any jurisdictional error on the part of the Authority. As stated above, the applicant did not attend a hearing before the Authority. The bare assertion in Ground 1 that the Authority failed to give sufficient weight to the applicant’s claims was unsupported by particulars or oral or written submissions.
The Authority’s decision record discloses that the Authority commenced its decision record with an accurate summary of the applicant’s claims. The Authority had regard to the applicant’s arrival and protection interview and statement and also listened to the recording of the applicant’s account at the arrival interview. The Authority found that the applicant understood the questions being asked and had every opportunity to put his case. The Authority also found that the applicant understood and spoke English.
The Authority found the applicant’s evidence to be evasive, vague and confused. The Authority noted the applicant’s assertion that he could not remember everything because of depression. However, the Authority did not accept that explanation in the absence of any medical evidence of a poor memory or depression.
The Authority identified with specificity various concerns that it had had about the applicant’s claims, which it found to lack detail and be unconvincing. It also noted, in some detail, various inconsistencies that it found to exist in the applicant’s accounts of his claims at interview.
The Authority also had regard to the fact that the applicant had not mentioned attacks on himself in his arrival interview, despite the interview being nearly three hours long. The Authority considered his failure to mention those aspects of his claim to be of concern.
The Authority accepted that the applicant was a Nepalese citizen and that the police clearance notes disclosed that there was no adverse record against him. The Authority identified various documents relied upon by the applicant upon which it ultimately placed no weight for reasons that it gave.
The Authority accepted that the applicant has had some low level political interest and was on the Local Government District Committee in 2003. The Authority noted in particular that at the interview the applicant reiterated that his position was at a low level.
However, ultimately the Authority found that the applicant had fabricated his claims of threats, attacks upon him and his family, and did not accept that he was attacked or targeted or had to hide or was unemployed due to a fear of harm. The Authority rejected the applicant’s claims of past harm and did not accept that he faced or faces any harm from Maoists or political parties or opposition groups in Nepal.
Further, the Authority did not accept that the applicant was a critic of the constitution in Nepal. However, it did accept that the applicant supported the monarchists in the past and supports a democratic party. The Authority also accepted that the applicant may continue an interest or low level involvement in politics if he was to return to Nepal.
The Authority then had regard to various independent country information, which it identified. The Authority found that the applicant’s past political affiliations and involvement, support for democracy and his low level political interest, in light of the country information before the Authority, led the Authority to find that the applicant does not face a real chance of harm from Maoists or opposition groups or political groups. Nor did the Authority accept that he would be viewed as a spy or traitor. Based on country information before the Authority, it found that Nepal provides for diverse political views and parties and persons so involved are generally respected.
Accordingly, the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act 1958 (Cth) (“the Act”) and, therefore, did not meet the criteria in s.36(2)(a) of the Act.
The Authority then considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act. In considering that criterion, the Authority identified the definition of “significant harm” in s.36(2A) of the Act and considered the applicant’s circumstances as to whether he faces a real risk of significant harm upon return to Nepal.
The Authority found that, as it had not accepted the applicant’s claims about threats or attacks or harm from Maoists or any opposition groups, it did not accept that the applicant faced a real chance of any harm on any of the bases claimed, or at all.
In the circumstances, the Authority concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant would suffer significant harm. Accordingly, the Authority found that the applicant did not meet s.36(2)(aa) of the Act.
It is well accepted that the Authority is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J). Those principles have been expressed regularly in the past to refer to decisions of the Administrative Appeals Tribunal. However, I am satisfied that they are equally apt in relation to the Authority’s consideration of the applicant’s claims.
It is also well accepted that the country information to which a decision maker, such as the Authority, has regard is a matter for the Authority as is the weight it gives that information (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
It is the responsibility of the Authority to evaluate and consider the evidence and material before it and to make relevant findings on that material in the context of the applicant’s claims of persecution.
The Authority also, as stated above, found the applicant’s claims to lack detail. The Authority gave detailed reasons as to why it rejected the applicant’s claims of past harm. Those adverse findings were made in the context of the Authority accepting that the applicant was interested in low level politics; had supported the democratic party since 2012; may have been asked for donations by Maoists during the civil conflict in 2013; and, that he may have moved from Begam to Kathmandu in 2004 or 2005 when his committee job was dissolved by the government.
The Authority explained in some detail the reasons why it found the applicant’s employment history to be unsatisfactory, as it did the applicant’s account of the King protests. The Authority accepted that the applicant had an interest in politics and was employed at the Government District Committee until 2003.
In the circumstances, the Authority’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Authority’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Authority’s findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis, or unreasonableness and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). As stated above, The Authority made clear that the basis for those adverse credibility findings were the inconsistencies which it identified with particularity and the inconsistent evidence given by the applicant and the vague, evasive and confused claims that he made.
The first respondent in submissions suggested that Ground 1 may raise an allegation of bias. Certainly, no such clear allegation is made. It is well-established that such an allegation must be firmly and distinctly made and clearly proven.
Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Authority makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). A fair reading of the Authority’s decision does not disclose any prejudgment on the part of the Authority in the sense that the Authority was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).
A fair reading of the Authority’s decision does not suggest that the Authority approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Authority, might reasonably apprehend that the Authority may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).
Ground 1 otherwise does not identify any jurisdictional error on the part of the Authority and appears more to be a disagreement with the findings and conclusions of the Authority. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 1 is not made out.
Ground 2 asserts that the Authority failed adequately to consider the risk that the applicant would suffer significant harm if returned to Nepal. Ground 2 is also expressed as a bare assertion unsupported by relevant particulars or oral or written submissions.
It is well established that it is acceptable for the Authority to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion in s.36(2)(aa) of the Act (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).
Justice Robertson stated in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] as follows:
“56. There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.”
I also note SZSYI v Minister for Immigration and Border Protection [2015] FCA 1276 at [46] Gilmour J stated that there was no need for any separate consideration of the same factual matters in relation to the complimentary criterion, as follows:
“46. The Tribunal’s findings of fact with respect to the adult applicants' factual claims, were germane to its assessment of the adult applicants' claims to fear persecution under s 36(2)(a) of the Act as well as s 36(2)(aa), the complementary protection criterion. There was no need for any separate consideration of these same factual matters in relation to the complementary protection criterion.”
It is clear from the Authority’s reasons that the Authority understood the notion of “significant harm” as it is used in s.36(2)(aa) of the Act by its reference to s.36(2A) of the Act. The Authority referred to its findings of its rejection of the applicant’s claims of threats or attacks or harm from Maoists or any opposition groups and that he did not face a real chance of any harm on any of the bases claimed.
The Authority was entitled, as stated above, to have regard to those findings in considering whether the applicant met the complementary criterion in s.36(2)(aa) of the Act.
In the circumstances, there is no jurisdictional error demonstrated by the assertion in Ground 2 that the Authority failed adequately to consider the risk that the applicant would suffer significant harm if returned to Nepal.
The Authority’s findings and conclusions were open to it on the evidence and material before it and were based on the findings that it had made and for which it had provided comprehensive reasons.
As stated above, the applicant has not identified any other error by the Authority capable of establishing jurisdictional error and none is otherwise apparent on the face of the Authority’s decision record or the conduct of its review.
In the circumstances, Ground 2 is not made out.
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 29 November 2018
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