EFK24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1242
•19 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EFK24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1242
File number: PEG 212 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 19 November 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa (class XA) (subclass 866) - whether the Tribunal misconstrued the risk and fear of significant harm in s 36(2A) – whether the Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant – whether the Tribunal acted outside jurisdiction – whether the Tribunal failed to comply with requirements under s 424A – no error jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AAA, 5LA, 5J(a), 36(2), 36(2)(a), (aa), (b), (c), 65, 65(1)(b), 423A, 424A, 424A(3)(a), (b), (ba), 424AA, 499.
Migration Regulations 1994 (Cth) sch 2.
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 1 November 2024 Place: Perth Solicitor for the Applicant: Self-represented litigant. Solicitor for the First Respondent: Ms Ismailjee (Sparke Helmore) Solicitor for the Second Respondent: Submitting appearances, save as to costs. ORDERS
PEG 212 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFK24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
19 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 29 May 2024. The Tribunal affirmed a decision made by a delegate of the Minister for Home Affairs (“delegate”) on 2 August 2018 to refuse to grant the applicant a Protection (class XA) (subclass 866) visa (“the visa”).
BACKGROUND
The applicant is a male citizen of Malaysia who first arrived in Australia on 20 March 2018 using an Electronic Travel Authority (class UD) (subclass 601) visa.
The applicant has worked in Australia doing food delivery, farmwork and at an abattoir. He lives with his wife whom he married in February 2022. She has also applied for protection.
By consent, this matter was heard concurrently with the application for judicial review by his wife. Each application has a separate judgement.
The applicant applied for the visa on 18 May 2018. His claims for protection were summarised by the delegate as follows (errors in original):
•He left Malaysia because of economic issue.
•If he returns to Malaysia, he will have no job and he cannot support himself and his family.
•The applicant claims that he applied for several jobs in Malaysia but failed because of economic issue in Malaysia.
The delegate refused to grant the applicant the visa under s 65 of the Migration Act 1958 (Cth) (“the Act”) on 2 August 2018. The delegate found that the applicant was not a person in respect of whom Australia had protection obligations as outlined in ss 36(2)(a) or (36(2)(aa) of the Act. The applicant was not a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant under ss 36(2)(b) and 36(2)(c) of the Act.
The applicant applied to the Tribunal for review of the refusal decision on 12 August 2018.
The applicant appeared before the Tribunal in February 2024. He was self-represented. He was assisted by an interpreter who spoke the Malay and English languages. He attended a second hearing in May 2024 and was again self-represented and assisted by an interpreter who spoke Malay and English. The applicant provided further information and documentation after the hearing.
The Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa on 29 May 2024.
For the reasons set out below the application must be dismissed.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal set out the criteria for a protection visa in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) wherein an applicant must meet one of the alternative criteria in ss 36(2)(a), (aa), (b) or (c). The Tribunal stated the applicant must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such as person, and that person holds a protection visa of the same class.
The Tribunal made reference at [9] to s 5AAA of the Act and stated that it makes clear it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.
It also outlined at [10] that s 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.
At [11] it listed the mandatory considerations required under Ministerial Direction No. 84 made under s 499 of the Act. These included the requirement for the Tribunal to consider the ‘Refugee Law Guidelines’ and ‘Complementary Protection’ assessments prepared by the Department of Home Affairs. It was also required to consider country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In particular, the Tribunal referenced a 2021 DFAT County Information Report for Malaysia.
At [14] the Tribunal summarised the applicant’s claims in his protection visa application as follows:
•Economy issue.
•No job so cannot support himself and family.
•His friend asked him to go to Australia.
•He has applied for many jobs but failed due to economy issue in Malaysia.
•Malaysia has a bad economy issue.
No further information was provided to the Tribunal.
During and following the hearings, the applicant provided photographs and information concerning money he had borrowed from a gang to start a café in 2016. He claimed the café was only open for less than a year before it closed. He stated that he joined the gang as a young person for the sole reason of borrowing money. He worked for them for about two years, which was limited to collecting protection money whilst the gang was involved in other illegal activities. He stated he feared returning to Malaysia as the business he set up in 2016 was not going well and he could not pay back the money he borrowed which had very high interest.
He claimed he had been beaten by the gang because he could not repay the money, so he fled to Thailand. He made reference to a photograph of a scar on his leg. He stated the gang threatened to harm him and his family if he went to the police, so he did not report it to the police. He did not seek medical treatment as the hospital would ask him to go to the police. The applicant told the Tribunal that he had not yet paid the money back so was afraid he would be harmed on his return as once you join a gang, it is difficult to leave, and you cannot avoid them.
The Tribunal discussed the provisions of s 423A with the applicant and asked why he did not mention his claims in relation to joining a gang to borrow money for his business as noted at [34]. The applicant told the Tribunal that he did not know he could raise gang matters. The Tribunal put to the applicant that as he claims he fled to Thailand and Indonesia before coming to Australia to escape the gang, would this reason not be at the top of his mind? The applicant replied that his only thought was of his family and the restaurant closing.
The Tribunal was not satisfied the applicant had a reasonable explanation for not making the claim about the gang before the primary decision was made. At [53] the Tribunal drew an inference unfavourable to the credibility of the applicant’s claim to fear harm from the gang members on his return to Malaysia.
At [54] the Tribunal found the applicant’s claim vague and lacking in detail, noting that it does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim.
The Tribunal found at [56] the applicant owned and operated a restaurant in his hometown in Malaysia.
At [57] the Tribunal was not satisfied on the basis of the applicant’s evidence that he was injured by members of the gang.
Whilst it was not possible to identify the person holding money, the amount of money or the purpose of money shown in a photograph, the Tribunal accepted at [58], that the applicant borrowed money from a moneylender to establish his restaurant. The Tribunal referenced country information which indicated funds from money lenders are usually paid in cash. The Tribunal accepted based on the applicant’s evidence that he had not paid off the loan.
As indicated to the applicant, the Tribunal had concerns about the applicant’s claims to be a member of a gang. The Tribunal had doubts that all a person needed to do to join a gang would be to show ID and pay a membership fee. The Tribunal discussed with the applicant that the photographs provided indicated an association with a religious organisation. However, the Tribunal noted at [59] it was aware of reports that the gang is thought to be associated with this organisation.
The Tribunal considered at [60] that organisations may assist the applicant to break away from the gang and that there are several significant anti-gang police operations, one of which resulted in the outlawing of, and arrest of, gang members. This suggests the power of the gang might have waned, and that authorities would take action to protect the applicant if he were threatened.
The Tribunal noted at [63] that country information states that the police force and the judiciary are reasonably effective and that they are able to afford a degree of protection from the illegal practice of gangs and moneylenders/loan sharks.
The Tribunal also noted at [64] that country information indicated that some banks and credit agencies were willing to offer people loans to consolidate and pay off illegal moneylenders/loan sharks.
The Tribunal noted at [65] that the relevant country information outlined reflects that illegal moneylenders/loan shark activity in Malaysia can be associated with threats and violent crime, but also that the Malaysian police and government authorities have taken, and continue to take, prosecutorial action against illegal moneylenders/loan sharks. While corruption is present, the Malaysian authorities demonstrate a commitment to dealing with unlawful activity including corruption and violence.
The Tribunal found at [66] that based on available country information, effective protection measures are available to the applicant in Malaysia in the event he or his family members are subjected to violence or threats of violence from the gang/illegal moneylenders/loan sharks because of his unpaid loan or because he has left the gang for any other reason. The Tribunal found that effect protection measures are available to the applicant by the State throughout the country and that the State is able and willing to provide such protection. The applicant can access the available protection, and the protection provided is durable.
Therefore, from the available country information the Tribunal found at [67] that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system. By operation of sections 5J(a) and 5LA, the applicant does not have a well-founded fear of persecution as a victim of a gang or illegal moneylender/loan shark as claimed or for any related claim or any other reason.
Given these considerations, the Tribunal found at [68] there was no real chance the applicant would suffer serious harm should the applicant return to Malaysia now or in the reasonably foreseeable future on the basis of this claim.
The Tribunal next considered at [68] the applicant’s claim of fear of returning to Malaysia as the economic situation was not good and he would be unable to find employment and earn a living sufficient to support himself and his family. The applicant indicated that the economy is better in Australia, and he is able to earn good money.
The Tribunal accepted at [71] the costs of living are high, and wages are lower in Malaysia as compared to Australia. The Tribunal also accepted that the applicant would experience some stress and difficulty in re-establishing himself if he is returned to Malaysia. However, the Tribunal noted the applicant has indicated he has previously worked in Malaysia and has experienced working in a variety of jobs in Australia. The Tribunal found that he would likely be able to find employment in Malaysia and continue to have access to a means of supporting himself.
Whilst the Tribunal accepted at [72] the applicant’s earnings would be lower than what he might earn in Australia. However, it was not satisfied that they would be so low as to threaten the applicant’s ability to subsist in Malaysia or otherwise amount to serious harm.
The Tribunal noted at [73] it had considered country information that stated the Malaysian economy is growing and poverty rates decreasing. The Tribunal found that any economic hardship the applicant will incur will not amount to serious harm in the sense that it would threaten his capacity to subsist. The Tribunal found that given the applicant’s qualifications, experience, and his motivation for work, he will not be denied the capacity to earn a living, nor would he be denied basic services, where such denials would threaten his capacity to subsist. Accordingly, the Tribunal found that there was no real chance the applicant would be seriously harmed if he returned to Malaysia by reason of his economic circumstances.
The Tribunal also noted at [74] that country information did not reflect that there was a real chance the applicant would be denied employment, threatening his capacity to subsist for any refugee reason if he returns to Malaysia. The Tribunal did not accept the applicant would be denied basic services, the capacity to earn a living or suffer economic hardship which would threaten his capacity to subsist for any refugee reason if he returns to Malaysia now or in the foreseeable future.
The Tribunal did not accept at [75] there was a real chance the applicant would be denied the capacity to earn a livelihood of any kind or subjected to significant economic hardship in Malaysia, such that his capacity to subsist would be threatened. It found that he would not be at risk of serious harm.
Having considered all of the applicant’s claims, individually and cumulatively, all evidence and country information and personal circumstances, the Tribunal found at [76] there was no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion or for economic reasons or any other reason if he returns to Malaysia now or in the reasonably foreseeable future.
Therefore, the Tribunal found at [77] the applicant does not have a well-founded fear of persecution for any reason now, or in the reasonably foreseeable future, if he returns to Malaysia. The Tribunal was not satisfied at [85] that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal considered the complementary protection criteria in section 36(2)(aa) and the found there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will face significant harm for any reason on his return to Malaysia. The Tribunal was not satisfied at [86] that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There was no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
GROUNDS OF JUDICIAL REVIEW
The grounds for judicial review are contained in the Originating Application filed on 26 June 2024. They are reproduced as follows (errors in original):
1.The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act 1958.
2.The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Malaysia because he borrowed money from an underworld gang called the Double 7 Gang and from economic hardship.
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
4.The Tribunal has failed to investigate the applicant’s claim, especially the grounds of persecution in Malaysia.
5.The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. The applicant’s hearing was held concurrently with that of his wife. The applicant was advised that this case would be considered separately to that of his wife.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been served on him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case. The applicant told the Court that the Tribunal did not accept his proof. The applicant conceded he was given the opportunity of a second hearing to provide more evidence. Even after this they said his proof was not strong.
The applicant was unable to address the grounds of judicial review by way of submission. At the conclusion of the respondent’s oral submissions, the applicant was asked if you wish to state anything in reply. He answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted insofar as grounds one, two and four contend, that the Tribunal misapplied the refugee criteria as provided by the Act, these grounds should fail at a factual level given the Tribunal correctly identified and set out the relevant criteria and considerations for the grant of the visa (CB 135- 136, [4]-[12]). The Tribunal consistently referred to the correct tests of “well-founded fear of persecution” for the refugee criterion and “real risk of significant harm” for the complementary protection criterion in its decision. There is nothing on the material to suggest that the Tribunal misconstrued any relevant provision of the Act or otherwise failed to investigate the applicant’s claims, particularly noting there was no obligation for the Tribunal to make the applicant’s case for her (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43] per Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”) at [20] per Black CJ, Sundberg and Bennett JJ). The grounds should therefore fail.
In relation to ground three, the first respondent submitted ss 65 and 36(2) of the Act require the Tribunal to reach a requisite level of satisfaction in respect of the relevant criteria before a visa can be granted. Further, s 65(1)(b) of the Act requires that if the Tribunal is not so satisfied, it must refuse to grant the visa. Clearly here, the Tribunal was not satisfied given the applicant’s vague claims (CB 142, [54], CB 143, [57]) and lack of any corroborative documents to support his claims of his leg being injured by members of the gang who found him in Thailand (CB 143, [57]). No error is apparent.
In relation to ground five, contrary to the applicant’s claims, there was no information that the Tribunal was required to put to the first applicant pursuant to s 424A of the Act. No breach of s 424A of the Act is apparent, and therefore this ground cannot succeed. Further, the Tribunal’s obligations under ss 424A and 424AA of the Act were not enlivened because there was no relevant “information” that was required to be put to the applicant. In making its findings, the Tribunal relied on inconsistencies, as well as the country information and the applicant’s oral and written evidence to the Department and Tribunal, all of which are exempted by ss 424A(3)(a), (b) and (ba) of the Act. In any event, it is well-settled that the Tribunal is not required to provide its “subjective appraisals, thought processes or determinations” in relation to the evidence (SGLB, VSAF),1F or a “running commentary upon what it thinks about the evidence that is given” (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]-[48] per Gleeson CJ, Kriby, Hayne, Callinan and Heydon JJ; Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]-[89] per Emmett, Weinberg and Lander JJ). 2F
The first respondent submitted the Tribunal’s decision was open, justified in its reasons and cannot be said to have been unreasonable (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [48] per Kiefel CJ).3 The Tribunal drew an unfavourable inference to the applicant’s credibility under s 423A of the Act (CB 142, [53]) (EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182 at [51]-[52] per Raper J). No error is apparent.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].
It is for the applicant to satisfy the Tribunal or Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [76]. Further, the Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82].
Grounds one, two and four
Grounds one, two and four, as identified by the respondent, can be dealt with together insofar as they contended the Tribunal misapplied the refugee criteria as provided by the Act. The Court is satisfied the Tribunal correctly identified and instructed itself as to the tests of “well-founded fear of persecution” for the refugee criterion and the “rule risk of significant harm” for the complimentary protection criterion. The relevant tests are set out at [4] – 10] of the decision record.
The Court is satisfied that the Tribunal correctly applied those tests when it came to the findings it did at [50] – [77] and [78] – [84]. Further, for the reasons set out above, the Tribunal was under no obligation to investigate the Applicant’s claims. Its role was to undertake a review, not an investigation of the applicant’s claims. Grounds one, two and four have no merit.
Ground three
Ground three is a bare assertion that the Tribunal failed to reach the requisite level of ‘reasonable satisfaction’ in accordance with the Act. No particulars are provided in respect of this assertion. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
The Court is satisfied that the conclusion arrived at by the Tribunal that the applicant did not meet the relevant criteria, was based on the legitimate findings of the Tribunal. It was not satisfied as to the applicant’s vague claims and the lack of any accompanying documents to support his claim of his leg being injured by members of the gang who he says found him in Thailand. The Court notes the applicant was given the benefit of an adjournment which provided him with an opportunity to produce any documentation that he had, but he was apparently unable to do so. Further, the applicant provided no written or oral submissions in relation to this ground. The Court is satisfied there is nothing irrational, illogical or legally unreasonable in the Tribunal’s findings. These are based on the evidence that was before it and to the probative reasons it gave. Ground three has no merit.
Ground five
Ground five is again a bare assertion that the Tribunal failed to comply with the requirements of section 424A to give the applicant clear particulars of information considered would be part of the reason for affirming the decision under review. No particulars are provided of what information was not provided to the applicant. This ground could be dismissed on that basis alone.
The Court, however, is satisfied, based on its review of the decision record and the supporting documentation contained within the Court Book, that there was no information which enliven the requirement for information to be provided to the applicant under s 424A. Ground five has no merit.
DETERMINATION
As the applicant is unrepresented, the Court has perused the Tribunal decision record together with supporting documentation contained within the court book that was tendered to the court. The Court is unable to ascertain any unarticulated jurisdictional error.
In the circumstances the application must be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 19 November 2024
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