DML20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 22
•10 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DML20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 22
File number(s): PEG 225 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 10 September 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Iraq – refusal of Protection (Class XA) (Subclass 866) visa – whether Tribunal failed to consider claim put to it – claim of perceived apostasy – whether jurisdictional error – writs issued
WORDS AND PHRASES – “secularism” – “secular” – “apostasy” – “apostate”
Legislation: Migration Act 1958 (Cth) ss 474, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758
ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228; (2018) 92 ALJR 1003
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 48 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Murrumbidgee Groundwater Preservation Assn Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Zentai v Honourable BrendanO’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Other material: The Macquarie Dictionary (7th Edn) (Sydney: Macquarie Dictionary Publishers, 2017)
The Shorter Oxford Dictionary on Historical Principles Vol II (Oxford: Oxford University Press, 1973)
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission: 3 May 2021 Date of hearing: 3 May 2021 Place: Perth Counsel for the Applicants: Mr D. Godwin Counsel for the First Respondent: Ms G. Ellis Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 225 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: DML20
First Applicant
DMM20
Second Applicant
DMN20
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.That a writ of certiorari issue quashing the decision of the second respondent made on 30 June 2020.
2.That a writ of mandamus issue requiring the second respondent to re-hear the application for a Protection (Class XA) (Subclass 866) visa made by the applicants on 10 December 2015 and determine it according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 LUCEV
INTRODUCTION
On 27 July 2020 the applicants, a father and his two minor children, filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Administrative Appeals Tribunal made on 30 June 2020 (“Tribunal Decision” and “Tribunal” respectively”). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant the applicants Protection (Class XA) (Subclass 866) visas (“Protection Visas”).
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 217-250.
On 7 April 2021 the Court made orders by consent that the applicants be given leave to file and rely on an amended Judicial Review Application in the form annexed to the orders (“Amended Judicial Review Application”). The Amended Judicial Review Application contains one ground of review which is set out below at [5].
BACKGROUND
The relevant background to the Amended Judicial Review Application is as follows:
(a)the applicants were born in Iraq and are Shia Muslims of Arab ethnicity: CB 11, 13, 36, 38, 61, 63;
(b)the second and third applicants are the minor children of the first applicant (“Applicant”): CB 2, and as such the children do not have claims independent of that of their father: CB 218 at [4];
(c)at CB 221 at [32] the Applicant alleges that:
(i)he fears harm on return to Iraq from Shia militias due to his secular views and criticism of Shia militias;
(ii)his father was shot at in 2004 due to his opposition to radical parties, and his father continues to receive threats by phone, and the Applicant has also received threats due to his father's activities;
(iii)the Applicant has expressed his views to workmates, close friends and relatives, and he has posted his views to his Facebook profile, which is publicly viewable. He has received threats in person, on Facebook, and communicated to him through family members for expressing these views.
GROUND 1
Ground 1 of the Amended Judicial Review Application is as follows:
The Tribunal failed to address all of the first applicant's claims
Particulars
The applicant claimed that he would be considered an apostate by fundamentalist Muslims
The Tribunal did not make any finding on whether he would be at risk of harm for this reason
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)considered country information including a 2018 Department of Foreign Affairs and Trade country report (“2018 DFAT Report”) stating that Shias did not face official discrimination in Iraq or societal discrimination in Shia areas, and other country information which indicated a significant decrease in security-related incidents in late 2018, and attached significant weight to the 2018 DFAT Report indicating southern regions of Iraq (including Najaf) were more secure than other parts of Iraq: CB 235 at [92]-[93];
(b)as to the risk from generalised violence, found that credible country information suggested that there was no longer a high level of indiscriminate violence and that the Applicant would not, therefore, face a real risk solely by being present in Iraq: CB 236-237 at [99];
(c)accepted that the Applicant posted material on Facebook critical of militias and the Iraqi Government from 2013, prior to his arrival in Australia, and that he had secular views that he had expressed to friends and family in Iraq: CB 237 at [101];
(d)was prepared to accept that the Applicant and his father were the subjects of an attack in 2004 by unidentified people while driving near Najaf (“2004 Incident”) and that his father may have been injured, but further found that:
(i)there was no evidence linking the attack to any political activity or perceived political views;
(ii)given the general level of instability in Iraq at that time, and in light of the Tribunal's concerns regarding the credibility of the Applicant's claims, it did not accept that the attack was the result of anti-militia or anti-government statements by the Applicant's father in his workplace or elsewhere; and
(iii)the fact that the Applicant's father continued to live safely in Najaf after the 2004 Incident without suffering any further harm showed that he was not of interest to the militia, the Iraqi government or extremists, and that there was no “fatwa” against him: CB 237 at [103]-[104];
(e)did not accept that the Applicant was at risk of serious harm from the Iraqi government, militia groups or extremists because of his expressions of political belief on Facebook, or for any other reason, due to the Applicant’s lack of profile and the Tribunal’s credibility concerns in relation to the Applicant: CB 237-238 at [105];
(f)found that there were inconsistencies in the Applicant’s evidence about his residential addresses prior to and after the 2004 Incident, and his claim that he and his family moved every six to eight months thereafter, and further found the Applicant's evidence in relation to the latter matter to be vague, implausible and lacking in detail, which was particularly concerning given this was a core element of his claims for protection, and the Tribunal was therefore unable to accept that the Applicant and his family moved every six to eight months due to a fear of harm from militia or authorities: CB 238 at [107]-[109];
(g)found that there were inconsistencies in the Applicant's evidence regarding his political or activist activities in Iraq and Australia, and did not find it plausible that the Applicant would not recall the details of his claimed participation in demonstrations, and that his failure to mention them earlier cast doubt on the credibility of the Applicant’s claimed activities and the Tribunal, therefore, did not accept those claims: CB 239 at [110];
(h)found elements of the Applicant's evidence concerning threats received while he was in Italy were implausible, and whilst it accepted that there may have been a financial incentive for him to return to Iraq, it found his family being threatened was not a credible explanation for him returning to a country (Iraq) where he feared harm, particularly as he had claimed similar threats had been made to his family in Iraq since his arrival in Australia, but he had not returned: CB 239 at [111];
(i)recorded the Applicant’s evidence that his wife did not consider that she would be at risk if she returned to Iraq, which contradicted the Applicant’s claim that his family would be at risk, and it did not accept it to be credible that the Applicant’s wife would return to Iraq if the children would be at risk or that she intended to return without them: CB 239 at [111];
(j)did not accept that the Applicant's father ceased work in 2006 due to fears concerning the 2004 Incident, and found it implausible that the Applicant’s father left his job in 2006 and then encouraged the Applicant to work in the same environment in 2009: CB 239 at [112];
(k)considered the Applicant’s explanation for the delay in seeking protection until one year after his arrival in Australia lacked credibility: CB 239-240 at [113], and found the timing of the Protection Visa application, being three months after the Applicant separated from his wife, cast doubt on the Applicant’s explanations in this regard: CB 240 at [114];
(l)accepted that the “applicant received several threatening messages visa [sic] Facebook in response to messages he posted on his personal page”, but said it was unclear over what period those messages were received, but noted the Applicant’s evidence that the four messages provided to the Tribunal were received in August 2019: CB 240 at [116];
(m)found that the Applicant's claim that militants had visited his parent's home and threatened him in 2015 was inconsistent with other claims and evidence before it and that in light of these inconsistencies, the implausibility of the account and the Tribunal's concerns regarding the credibility of his evidence, the Tribunal did not accept the Applicant's mother was visited in 2015 by people who threatened him: CB 240-241 at [117];
(n)did not accept that the Applicant developed a psychological disorder as a result of threats received in Iraq, pressure placed on him to reveal his political views in his workplace, or for any other reason: CB 241 at [118];
(o)said that it was careful to give the Applicant the opportunity to comment on, or clarify apparently inconsistent statements, dates and evidence where they appeared to contradict earlier sworn statements, but found that the large number of inconsistencies and vague, contradictory or implausible evidence, including in relation to key events, could not be explained merely by the passage of time, poor recollection, issues in translation, or the stress associated with the Applicant’s son’s eye treatment: CB 241 at [119]-[121];
(p)in light of its concerns, found that the Applicant’s claimed fears of persecution were not genuinely held: CB 241 at [122];
(q)found that the Applicant was not a high profile activist who came to the attention of militia or the government such that he would be at risk of harm: CB 241-242 at [122];
(r)found that credible country information did not support the Applicant's claim that someone who expressed views on their Facebook page and talked to friends and family about secular political beliefs would face a real chance of serious harm on that basis, and did not accept that the Applicant participated in demonstrations in Iraq or that he would do so in the future if he returned to Iraq: CB 241-242 at [123];
(s)found that the Applicant did not face a real chance of serious harm due to his real or imputed political opinion as a secular Shia Muslim, or because of his membership of a particular social group as a “civilian activist”, or due to the real or imputed political opinion of his father from Shia militia or authorities or any organisation connected with them on return to Iraq now or in the reasonably foreseeable future: CB 242 at [124];
(t)found that the Applicant would not face harm as a returnee from a Western country, as a failed asylum seeker from a Western country, or for having real or imputed secular political opinions having spent time in a Western country: CB 242-243 at [125]-[131];
(u)based on country information, did not consider that on the basis of his Shia religion the Applicant would be harmed by ISIS or other extremist groups if he returned to Najaf: CB 243 at [132]-[135];
(v)found that the Applicant did not have a well-founded fear of persecution for any reason: CB 244 at [138]-[142]; and
(w)for the purposes of the complementary protection criterion, and relying on its anterior findings and country information, found that there were no grounds for believing that there was a real risk of significant harm to the Applicant: CB 244-246 at [143]-[157].
The Tribunal affirmed the Delegate’s Decision to refuse to grant the applicants Protection Visas: CB 246 at [161].
Applicants’ submissions
The applicants’ submissions were as follows:
(a)that the Applicant is a Shia Muslim who was not an active member of that religion;
(b)that the Applicant had claimed that:
(i)he was critical of fundamentalists as well as corruption in Iraqi politics; and
(ii)he had expressed these criticisms to friends, family, colleagues at work, and on social media;
(c)that in the Protection Visa application the Applicant had stated that:
(i)he had received threats to stop expressing his views: CB 85; and
(ii)that he was perceived as an infidel and as being against Islam: CB 86;
(d)the Applicant submitted that he was articulating his faith-based claims and setting out his political beliefs distinctly in the Protection Visa application at CB 86 at [9] and 87 at [11] as follows:
I am illiberal in my views and that I believe in distinctions between religions and politics; whereas others oppose my views and perceive me as if I was against Islam. This perception is serious enough to find a legitimate reason to murder me
…
I’ve been criticising the religious parties and the current and previous governments because they are the entire main cause of our country destruction and caused in eliminating a large number of lives. I was and still am an active member of Facebook pages and expose the corruption of the government and militias associated with it
(e)that the Applicant had received threats in 2015 on Facebook, which, translated, read as follows (at CB 130):
You have acted contrary to Religious Principles and beliefs which are God’s judges on earth. What you have done selling your religion for world matters; shall be rewarded for that – you will be killed and your family will be taken as “Captives” – We will reach you wherever you may be.
You are tempted and attracted by the land of the heretics and the people there made you a heretic. It is known that heretics will be killed even if the killing is not immediate – it comes later after sometime)
(f)that before the Tribunal, the Applicant’s written submissions (“Applicant’s Tribunal Submissions”), included the following claims:
(i)at CB 173 where the Applicant says he raises the apostasy claim:
As he holds strong secular views, he has been identified by extremists as being against Islam, and therefore is at risk of being killed: CB 173.
(ii)at CB 174 where it was submitted that the apostasy claim was distinctly made:
Although the applicant agreed with the information provided, he disagrees that it is relevant to his circumstances being secular with liberal opinion and yet he was not targeted because of his religion but because of his real and imputed political opinion
Yet, he is perceived to be apostate and this perception by itself would lead to get him seriously harmed in pursuant to Islamic fundamentalism.
(iii)at CB 176:
The applicant has well-founded fear of being persecuted for reasons of his imputed faith being secularist and being perceived as apostate, his membership of particular social group that was discussed above “civilian activist”, and his real and/or imputed political opinion.
(g)that the Tribunal accepted that the Applicant had received threatening messages on Facebook: CB 240 at [116];
(h)that the Tribunal records the apostate claim at CB 224 at [40], and at CB 234 at [90] it says:
The applicant indicated he was not worried about extremists like ISIL but was worried about the government and militia. However, the applicant submitted that 'he is perceived to be apostate and this perception by itself would lead to get him seriously harmed in pursuant with the Islamic fundamentalism';
(i)the Tribunal makes no express finding concerning the claim in the quote at (h) above, but does conclude at CB 242 at [122] that:
In light of these concerns regarding the credibility of core elements of the applicant's claims … the Tribunal finds that the claimed fears of persecution from the Iraqi government, the militia or extremists on the basis of his membership of a particular social group of 'civilian activists' or because of his actual or imputed political opinions as a secular Shia are not genuinely held by the applicant.
(j)the Applicant’s Tribunal Submissions, therefore, made a clear distinction between his imputed political opinion and his imputed apostasy;
(k)one of the threats on Facebook was directed at the Applicant’s imputed apostatic profile, and the Tribunal made no finding on whether the Applicant had a subjective fear of harm arising therefrom, and if so whether it was well-founded; and
(l)a failure on the part of the Tribunal to consider a claim made by the Applicant in support of the Protection Visa application may constitute a jurisdictional error: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (“AYY17”) at [18] per Collier, McKerracher and Banks-Smith JJ; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [24] per Gummow and Callinan JJ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No 2)”) at [55] per Black CJ, French and Selway JJ.
Minister’s submissions
The Minister’s submissions were as follows:
(a)the 34-page Tribunal Decision was clearly comprehensive, and the Tribunal expressly recorded the Applicant’s claim to fear harm on the basis of his imputed apostasy on three occasions: CB 222, 224, 234;
(b)the Applicant bears the burden of demonstrating that, on the balance of probabilities, the Tribunal did not consider the imputed apostasy claim, and the Applicant has made no effort to discharge this onus and cannot do so given the express mention of the claim on three occasions in the Tribunal Decision;
(c)insofar as the Applicant claims that he made “a clear distinction between his imputed political opinion and his imputed apostasy”, no such clear distinction can be gleaned from the portions of the Applicant’s Tribunal Submissions quoted in the Applicant’s submissions, and otherwise found at CB 174 and 176. The extract from CB 174 is particularly opaque. In any event, there would be no error in the Tribunal considering the Applicant’s chance of harm based on his imputed apostasy in the context of his imputed political opinion if the Tribunal, as an arbiter of fact, considered that the two issues overlapped;
(d)a fair reading of the Tribunal Decision shows that the Tribunal dealt with the imputed apostasy claim in the context of the Applicant’s claim to fear harm from his real or imputed secularism as well as his imputed political opinion. This is not surprising given the way the Applicant raised the claim in his statement of claims provided to the Department at CB 85 and 87 respectively as follows:
At university I always expressed my views towards human rights and my objections against the new radical groups that appeared after the collapse of Saddam Hussein's regime… My views associated with my family views against the new extremism in Iraq put us at risk. We received threats to stop expressing our views as they perceived us infidels and against the Islamic system.
…
I am illiberal in my views and that I believe in distinctions between religions and politics; whereas others oppose my views and perceive me as if I was against Islam. This perception is serious enough to find a legitimate reason to murder me.
(e)it is also not surprising that the Tribunal considered the claims together given the inherent overlap between apostasy (rejection of one’s religion), secularism (separation between religion and politics), and political opinion;
(f)whilst the Tribunal accepted that the Applicant was a secular Shia Muslim: CB 237 at [101] and [105], it firmly and repeatedly rejected his claims to fear harm due to his secularism and any related real or imputed political opinion, which includes any harm that would arise from his imputed apostasy. At CB 238 at [106] the Tribunal said that it had:
significant concerns about the credibility of the elements of the applicant’s claims in particular claims relating to harm and threats of harm arising from perceived or actual secular political opinions expressed while he was living in Iraq.
(g)at CB 241 at [122] the Tribunal said:
In light of these concerns regarding the credibility of core elements of the applicant’s claims, … the Tribunal finds that the claimed fears of persecution from the Iraqi government, the militia or extremists on the basis of his membership of a particular social group of ‘civilian activists’ or because of his actual or imputed political opinions as a secular Shia are not genuinely held by the applicant.
(h)at CB 241-242 at [123] the Tribunal found that the Applicant was not a high profile activist who came to the attention of militia or the government such that he would be at risk of harm and that credible country information did not support the Applicant's claim that someone who expressed views on their Facebook page and talked to friends and family about secular political beliefs would face a real chance of serious harm on that basis;
(i)at CB 242 at [124] the Tribunal said as follows:
Due to these concerns and based on the evidence and credible country information, the Tribunal finds that the applicant does not face a real chance of serious harm due to his real or imputed political opinion as a secular Shia Muslim, or because of his membership of a particular social group as a ‘civilian activist’, due to real or imputed political opinion of his father from Shia militia or authorities or any organisation connected with them on return to Iraq now or in the reasonably foreseeable future.
and see also: CB 243 at [131], 243-244 at [137]-[139], 244 at [144] and CB 245 at [149];
(j)the Applicant’s imputed apostasy claim was not expressly rejected by the Tribunal, but it was subsumed in findings of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ, when the Tribunal rejected the Applicant’s claims to fear harm due to his secularism and any related real or imputed political opinion;
(k)the Tribunal was aware of the imputed apostasy claim, raising it three times in the Tribunal Decision, and considered it in the context of the Applicant’s claims to fear harm due to his secularism and any related real or imputed political opinion (mirroring the way the claim was raised by the Applicant), and rejected the claim as lacking in credibility, not being genuinely held and not being supported by the country information, and no error arises therefrom and the assertion that the imputed apostasy claim was overlooked cannot be made out;
(l)the Tribunal Decision in this matter turned largely on:
(i)its significant credibility concerns that arose from the Applicant’s inconsistent and implausible evidence, his one-year delay in applying for protection, and the fact that his former wife (with whom he came to Australia as a dependent on her student visa) did not apply for protection as she did not hold any fear of harm; and
(ii)the Tribunal’s finding that the Applicant did not genuinely hold the fears claimed; and
(m)the Tribunal was not required to accept uncritically any and all claims made by the Applicant: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 48 ALD 481; CLR at 596 per Kirby J, or possess rebutting evidence before finding that the Applicant’s assertions were not established: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J.
Consideration
Jurisdictional error required
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. To be a jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon the Applicant to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine the Applicant’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Failure to consider claims
It is an established principle that a failure by the Tribunal to consider an applicant’s claim may amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]; AYY17 at [18] per Collier, McKerracher and Banks-Smith JJ; NABE (No 2) at [55] per Black CJ, French and Selway JJ. In Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.
The Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 (“Singh”) per Reeves, O’Callaghan and Thawley JJ at [34], observed as follows:
…a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
In the assessment of a claim the Tribunal is required to engage in an “active and intellectual process directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [45]-[46] per Lindgren, Rares and Foster JJ.
In WAEE at [47] per French, Sackville and Hely JJ, the Full Court of the Federal Court observed that:
(a)where:
(i)the reasons given are otherwise comprehensive; and
(ii)the issue has at least been identified at some point,
the inference that an administrative decision-maker (there the former Refugee Review Tribunal) has failed to consider an issue should not be too readily drawn; and
(b)it may be unnecessary for the Tribunal to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ.
In considering the law as set out above the Court must consider whether:
(a)the claim was actually made and clearly articulated, or at least clearly discernible;
(b)the claim was identified and considered by the Tribunal;
(c)the Tribunal engaged in an active and intellectual process directed at the claim; and
(d)the claim, if made out, might have been dispositive of the review.
Was the claim made?
The Court notes that in the Applicant’s Tribunal Submissions:
(a)at CB 174, the Applicant submitted that:
Although the applicant agreed with the information provided, he disagrees that it is relevant to his circumstances being secular with liberal opinion and yet he was not targeted because of his religion but because of his real and imputed political opinion
Yet, he is perceived to be apostate and this perception by itself would lead to get him seriously harmed in pursuant to Islamic fundamentalism.
(b)and at CB 176, the Applicant submitted that:
The applicant has well-founded fear of being persecuted for reasons of his imputed faith being secularist and being perceived as apostate, his membership of particular social group that was discussed above “civilian activist”, and his real and/or imputed political opinion
It is clear that at CB 174 the Applicant has set out a stand-alone claim that because “he is perceived to be apostate” that perception “by itself” gives rise to a fear of serious harm. That is sufficient to establish that the Applicant did make a claim concerning possible persecution or fear of harm on the basis of the Applicant being perceived to be an apostate.
The passage in the Applicant’s Tribunal Submission at CB 176 is not so clear. On one view it might be said that the Applicant has overlapped or intertwined the concepts of secularism and apostasy in a single conjoined claim, namely a “well-founded fear of being persecuted for reasons of his imputed faith being secularist and being perceived as apostate”. Read differently there might be said to be separate claims of a well-founded fear of persecution by reason of the Applicant’s:
(a)“imputed faith being secularist” (although secularism is not a faith, but a philosophy or philosophical concept: see [31(a)] and [32(a)] below); or
(b)“imputed faith … being perceived as apostate”, albeit that this is probably a claim properly based on imputed non-faith, that is apostasy: see [33(a)] and [34(a)] below.
Given that a claim of being perceived to be an apostate is open on the Applicant’s Tribunal Submissions at CB 176, and noting it is a not dissimilar claim to that at CB 174, and based on the ordinary meaning of the words “being perceived as apostate” in [18(b)] above, the Court concludes that the Applicant did make a claim of a well-founded fear of persecution because of perceived apostasy at CB 176.
Was the claim identified and considered by the Tribunal?
Having regard to the finding made at [21] above as to the claim actually made by the Applicant, being a claim of a well-founded fear of persecution the basis of perceived apostasy, the Court considers that it was necessary for the Tribunal to identify and consider that claim.
The Tribunal Decision is 31 pages long (excluding attachments) and contains 161 paragraphs. The difficulties for the Tribunal in this case in identifying and considering the various threads within the Applicant’s Tribunal Submissions ought not to be underestimated. The Court notes that it is only the Applicant’s claim concerning possible persecution on the basis of his being perceived to be an apostate that the Applicant alleges has not been addressed by the Tribunal. In all other regards, it appears that the Tribunal Decision is thorough and comprehensive, and it cannot be said that the Tribunal did not endeavour to engage in an active intellectual process directed at, or give proper, genuine and realistic consideration to, the claims otherwise made by the Applicant. The question remains, however, whether the Tribunal did consider the Applicant’s claim concerning possible persecution on the basis of his being perceived to be an apostate.
The Tribunal summarised the Applicant’s 23 claims: CB 221-223 at [32], which the Applicant “confirmed” as “a true and correct summary of his claims”: CB 223 at [33]. The fact that the Applicant, who appeared before the Tribunal with the assistance of an interpreter, confirmed the claims in this way does not relieve the Tribunal from considering a claim which is otherwise clearly articulated or evident on the materials before it, whether or not that claim was raised, or not amongst the claims confirmed, by the Applicant: Htun at [13] per Merkel J; NABE (No 2) at [58] and [63] per Black CJ, French and Selway JJ; EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758 at [34] per Charlesworth J.
The summarised claims include the following at CB 221-223 at [32]:
(a)at the second dot point (at CB 221):
The applicant fears harm on return to Iraq from Shia militias due to his secular views, criticism of Shia militias and his position as an academic.
(b)at the thirteenth dot point (at CB 222):
As the applicant holds strong secular views, he has been identified by extremists as being against Islam, and therefore he is at risk of being killed.
(c)at the eighteenth dot point (at CB 223):
He cannot return to Iraqi [sic] as Shia militia will eliminate him due to being secular, his political opinion and being a moderate Muslim who will not obey the rules set by the radicals.
It is notable that the Tribunal’s summary of the Applicant’s claims at CB 221-223 at [32] contains no reference to “apostasy” or to the Applicant claiming to be perceived as an “apostate”. Significantly, at CB 223 at [34], the Tribunal “notes that the applicant did not raise any new claims at the review stage, however, he did submit additional documentary evidence and submissions”.
The Tribunal at:
(a)CB 224 at [40] says it “has taken the applicant’s submissions into account” and summarises the submissions including, at the second dot point, the following:
The applicant has a well-founded fear of being persecuted for reasons of his imputed faith being secularist and being perceived as apostate, his membership of a particular social group being a 'civilian activist' and his real or imputed political opinion.
(b)CB 234 at [90] records that:
The applicant indicated he was not worried about extremists like ISIL but was worried about the government and militia. However, the applicant submitted that 'he is perceived to be apostate and this perception by itself would lead to get him seriously harmed in pursuant with Islamic fundamentalism’.
The Tribunal’s summary and record at CB 224 at [40] and 234 at [90] reflects the Applicant’s Tribunal Submissions at CB 174 and 176, but because the summary at CB 221-223 at [32] does not include the perceived apostasy claim, and because the Tribunal noted at CB 223 at [34] that the Applicant did not raise any new claims “at the review stage”, when in fact the Applicant did raise the perceived apostasy claim: see [21] above, the Court has concluded that the Tribunal did not expressly consider the perceived apostasy claim. Insofar as the Tribunal says that it took the Applicant’s Tribunal Submissions into account, it may have done so, but if it did, it did so without expressly considering the apostasy claims. So whilst the Tribunal recorded the perceived apostasy claims, it did not expressly consider those claims.
The Minister, however, submitted that:
(a)the claim of perceived apostasy was one which overlapped with other claims made by the Applicant as to his actual or imputed opinion as a secular Shia (or Shia Muslim); and
(b)in determining the claim as to the Applicant’s actual or imputed opinion as a secular Shia (or Shia Muslim) the Tribunal determined a claim of greater generality which subsumed the claim of perceived apostasy (citing WAEE at [47] per Black CJ, French and Selway JJ).
To assist in the determination of whether the Tribunal considered that the claim that the Applicant would be perceived to be an apostate was one subsumed in a finding of greater generality, the Court considers it is necessary to consider the meanings of “apostasy”, and “secularism”. In so doing, the Court is acutely mindful that the dichotomy between merits review and judicial review is at the heart of Australian administrative law and the boundary between the two is vigorously policed, and hence the Court ought not to overzealously scrutinise the reasoning and mode of expression in the Tribunal Decision: Murrumbidgee Groundwater Preservation Assn Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 at [127] per Spigelman CJ; Zentai v Honourable BrendanO’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J; Wu Shan Liang, CLR at 272 and 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Macquarie Dictionary (7th Edn) (Sydney: Macquarie Dictionary Publishers, 2017) (“Macquarie Dictionary”), p 1350 defines:
(a)“secularism” as:
1.secular spirit or tendencies, especially a system of political or social philosophy which rejects all forms of religious faith and worship.
2.the view that public education and other matters of civil policy should be conducted without the introduction of a religious element.
(b)“secular” as:
1. of or relating to the world, or to things not religious, sacred, or spiritual; temporal; worldly.
2. not relating to or connected with religion, as literature, music etc.
3. dealing with non-religious subjects, or, especially, excluding religious instruction, as education etc
…
5. Not in accordance with religious instructions or rules: …
…
The Shorter Oxford Dictionary on Historical Principles Vol II (Oxford: Oxford University Press, 1973) (“Oxford Dictionary”), p 1926 defines:
(a)“secularism” as:
1. The doctrine that morality should be based solely on regard to the well-being of mankind in the present life, to the exclusion of all considerations drawn from belief in God or in a future state.
2. The view that education, or the education provided at the public cost, should be purely secular.
(b)“secular” as:
A. adj. I. Of or pertaining to the world.
1. …
2.Belonging to the world and its affairs as dist. From the church and religion; civil, lay, temporal. Chiefly as a neg. term, with the meaning non-ecclesiastical, non-religious or non-sacred
…
c.of literature, history, art (esp. music), hence of writers, artists: Not concerned with or devoted to the service of religion; not sacred; profane …
d.Of education, instruction: Relating to non-religious subjects …
3.Of or belonging to the present or visible world; temporal; worldly
…
b. Unspiritual (rare). …
The Macquarie Dictionary, p 65 defines:
(a)“apostasy” as:
n. a total desertion of, or departure from, one's religion, principles, party, cause, etc.
(b)“apostate” as:
n. 1. Someone who forsakes their church, cause, party, etc.
adj. 2. Guilty of apostasy.
The Oxford Dictionary, p 88 defines:
(a)“apostasy” as:
1. Abandonment or renunciation of one's religious faith or moral allegiance. …
2. The abandonment of principles or party generally …
(b)“apostate” as:
A. sb. 1. One guilty of APOSTASY 1; a pervert.
…
2. A turncoat, a renegade …
There are numerous instances throughout the Tribunal Decision where the Tribunal has addressed the Applicant’s claim that he would be at risk due to his actual or imputed opinions as a secular Shia Muslim: CB 237 at [105], CB 238 at [106], CB 241 at [122], CB 242 at [124], and CB 243 at [137]. It might, therefore, be said to be reasonable to infer, in circumstances where the Tribunal has specifically made reference to the Applicant’s claim of imputed apostasy, that when Tribunal used the phrase, “actual or imputed political opinion as a secular Shia [or “Shia Muslim”]”: CB 241 at [122], CB 242 at [124] and CB 244 at [138] and [139], the imputed opinion refers to the Applicant being perceived to be apostate due to his secular stance. On that basis, when, at CB 244, the Tribunal made the following findings as to whether the Applicant met:
(a)the refugee criterion:
(i)that the Applicant's claims that there is a real chance that, if he is returned to Iraq, he would be persecuted because of his actual or imputed political opinions as a secular Shia are not credible: CB 244 at [138]; and
(ii)that there is no real chance that the Applicant would be seriously harmed due to his:
(A)real or imputed political opinion as a secular Shia Muslim;
(B)Shia religion; and
(C)time spent in a Western country, including any real or imputed political opinions arising from having spent time in such a country: CB 244 at [139]; and
(b)the complementary protection criterion, and found that there is no real risk that the Applicant would suffer from any of the designated harms on account of, amongst other things, his:
(i)real or imputed political opinion as a secular Shia Muslim; or
(ii)time spent in a Western country, including any real or imputed political opinions arising from having spent time in such a country: CB 244 at [144],
it might be inferred that the Tribunal drew no distinction between the Applicant’s secular opinions and his being perceived to be an apostate.
The question is, however, whether having regard to the separate and distinct claim of apostasy, the Tribunal ought to have considered whether there was a distinction between secularism, political opinion and apostasy, and whether if there is a distinction, what that distinction was, and whether that distinction might require consideration of the claim of apostasy made by the Applicant.
Is there a distinction between secularism, political opinion and apostasy? Plainly, there is.
Apostasy and secularism might have areas of overlap and are therefore not necessarily mutually exclusive, but they also have significant areas of difference. A secular person may be someone who is simply not religious. It may include a person who is a believer, and perhaps a religious observer, but who does not consider that religion has a place in the general organisation and governance of civil society. This is quite different to the complete rejection of a religion (here Islam) by a person, which constitutes apostasy, with all the circumstances which might be alleged to flow therefrom, particularly where it is alleged that the religion concerned has a significant or dominant role within a nation’s society, or part thereof.
Apostasy, viewed objectively is also not a political matter, but rather a religious one (or perhaps more correctly a theological one). Politics may, particularly in a theocratic state, have an impact upon apostates, but apostates may not, and need not, ordinarily be acting politically or expressing political opinions, when living out or expressing their apostasy. Apostasy does not, of itself, encompass politics or political matters or opinions.
Ultimately the determination of such matters is for the Tribunal as the determiner of fact on merits review. But in this case, the separate claim of apostasy had to be considered separately, and not merely as an inferred subset of the expression of secular beliefs or political opinion. It may be that having considered an apostasy claim separately a Tribunal might arrive at a conclusion that an applicant’s apostasy claim did overlap with other claims or might be subsumed within other claims. In each case it will be fact-specific, and would still require recognition by, and consideration of, the separate apostasy claim by the Tribunal.
The Tribunal here did not, however, consider the distinct claim of apostasy in light of the distinctions between apostasy, secularism and political opinion. Further, these distinctions make it plain that whilst there may be some overlap on some occasions between the secular, the political, and the apostatic, ordinarily, the distinction between them is such that the apostatic cannot simply be subsumed under the umbrella of secularism or political opinion. Thus, the Minister’s submission that the Court ought to infer that the Tribunal did just that and that the specific claim of apostasy, in this case, was therefore subsumed by the Tribunal’s consideration of claims related to the Applicant’s secular or political opinion cannot, without more, be accepted.
A different way of testing whether the separate claim of apostasy was considered by the Tribunal is to look at what country information the Tribunal considered. The Tribunal asserted that it discussed with the Applicant “country information relevant to his claims”: CB 229 at [69].
The Tribunal considered country information under the following broad headings:
(a)the general security situation in Iraq and the Popular Mobilisation Forces (”PMF”): CB 229-231 at [70]-[79];
(b)civilian activists: CB 232-233 at [80]-[85];
(c)academics: CB 233-234 at [86]-[89];
(d)the risk of harm from insurgents or extremists due to Shia religion: CB 234-235 at [90]-[93];
(e)refugees or failed asylum seekers from a Western country: CB 236 at [94]-[96]; and
(f)generalised violence in Iraq: CB 236-237 at [97]-[99].
Within the above broad headings, it is only under the heading “Risk of harm from insurgents or extremists due to Shia religion” at CB 234 that apostasy is mentioned at CB 234 [90] when it is said that the Applicant “submitted that he is perceived to be apostate and this perception by itself would lead to get him seriously harmed in pursuant with the Islamic fundamentalism”. Having identified this claim the Tribunal then fails to discuss it, discussing instead, at CB 234-235 at [91]-[93], matters relating to:
(a)Shia making up the majority of the population in southern Iraq;
(b)Shia marches being the target of terrorist attacks;
(c)casualties from terrorist and general violence in southern Iraq, and comparing them to casualties in the remainder of Iraq;
(d)the lack of official or societal discrimination against Shia in Iraq;
(e)the number of security-related incidents in Shia areas, and the control of southern Iraq by the Iraqui Security Forces; and
(f)protests in relation to poverty and water shortages in southern Iraq.
None of the matters considered by the Tribunal referred to in the previous paragraph relate to the issue of apostasy (or the rejection of religion or religious belief). Thus, although the Applicant’s claim of apostasy was mentioned, it was not the subject of any of the country information subsequently set out. It, therefore, also follows from the country information that the Tribunal did not consider country information relevant to the issue of apostasy, either at all and certainly not as a separate claim by the Applicant.
In circumstances where:
(a)the Applicant’s claim of apostasy was not identified or considered as a separate claim;
(b)it cannot be inferred that the Applicant’s separate claim of apostasy was subsumed within the Applicant’s other claims; and
(c)the country information failed to:
(i)mention apostasy; or
(ii)consider the nature of apostasy as a distinct issue,
it cannot be said that the Tribunal considered the Applicant’s claim of apostasy.
Did the Tribunal engage in an active and intellectual process directed at the claim?
The Tribunal failed to consider the separate claim of apostasy made by the Applicant, and the Tribunal did not, therefore, engage in an active and intellectual process directed at the apostasy claim: Lafu at [45]-[46] per Lindgren, Rares and Foster JJ; Singh at [34] per Reeves, O’Callaghan and Thawley JJ.
Could the claim have been dispositive of the Tribunal review?
For the Tribunal’s failure to consider, and then engage in an active and intellectual process in relation to, the Applicant’s apostasy claim, to be characterised as jurisdictional error it must be capable of being dispositive of the review: NABE (No 2) at [63] per Black CJ, French and Selway JJ; ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228; (2018) 92 ALJR 1003 at [14] per Bell, Keane and Gordon JJ (“EAT067”); MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In this regard, the Applicant’s claim identified above must be material to the assessment of the Protection Visa criteria. Whether it is established to be so is ultimately a question for the Tribunal, after consideration of the claim. For present purposes, the Court need only find that the claim is not irrelevant to the assessment to be made by the Tribunal as to the criteria for the grant of the Protection Visa.
Whilst the Tribunal had considerable doubt generally about the Applicant’s credibility, the Tribunal accepted that the Applicant had received a number of threatening messages via the Facebook Messenger platform since he had been living in Australia, albeit, it was unclear over what period of time they had been received: CB 240 at [116]. Those threats specifically included one relating to the fact that the Applicant “didn’t have a religion”, which message (despite apparent difficulty with having the message interpreted) appeared to suggest that the Applicant needed to be “careful” about what he wrote, that the writer knew he was not in Iraq, and that the Applicant “should be afraid about yourself”: CB 226 at [50]. At CB 130 another threat provided to the Tribunal by the Applicant was, in part and without amendment, as follows:
You have acted contrary to Religious Principles and beliefs which are God’s Judges on earth; What you have done is ‘selling your religion for world matters; You shall be rewarded for that – you will be killed and your family will be taken as ‘Captives” – We will reach you wherever you may be.
The Tribunal considered this, together with the Applicant’s relatively small number of followers on Facebook, as not being consistent with the Applicant’s alleged well-known profile as a civilian activist or with the monitoring of the comments by the militia or authorities in Iraq, because most of the comments on the Applicant’s Facebook with respect to the comments giving rise to these threats “appeared to be positive”: CB 226-227 at [54]. The threats were not, however, considered by the Tribunal in the context of the separate apostasy claim. Those threats were material to the apostasy claim and ought to have been considered in that context. In that context, properly considered, there may have been a possibility that the Tribunal Decision could have been different, and that consideration of the apostasy claim might have been dispositive of the review: ETA067 at [14] per Bell, Keane and Gordon JJ; MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
In circumstances where:
(a)the Tribunal has:
(i)not considered the apostasy claim; and
(ii)not engaged in an active and intellectual process directed at the apostasy claim as it relates to the Protection Visa criteria; and
(b)the apostasy claim may have been dispositive of the Tribunal review if considered,
ground 1 is made out and establishes jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that ground 1 of the Amended Judicial Review Application has been made out. It follows that there will be orders that a writ of:
(a)certiorari issue quashing the Tribunal Decision; and
(b)mandamus issue requiring the Tribunal to re-hear the Amended Judicial Review Application and determine it according to law.
The Court will hear the parties as to costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 September 2021
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