El Klink v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 289
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
El Klink v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 289
File number(s): SYG 934 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 28 March 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Temporary Work (Skilled) visa (subclass 457) – whether the Tribunal fell into jurisdictional error – minimum English language requirements – Nomination expired – jurisdiction to hear matter – statutory interpretation of “on the basis of nomination” – jurisdictional error is made out – the application fails on minimum English requirements – the application is dismissed Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 499, 338(2)(d)
Migration Regulations 1994 (Cth) cl 6704(15), 457
r 2.74(2)(b), r 2.74(2)(b)(a), r 4.02(1A).
Cases cited:
Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (2009) 239 CLR 27
Ex parte Aala [2000] HCA 57
Mangat v Minister for Home Affairs [2019] FCCA 2227
Modelez Australia Pty Ltd v AMWU [2020] HCA 29
Poudel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3261
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 19 March 2024 Date of hearing: 19 March 2024 Place: Parramatta Counsel for the Applicant: Mr Godwin Solicitor for the Applicant: Teleo Immigration Lawyers Counsel for the Respondents: Mr Johnson Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 934 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KHODR AHMAD EL KLINK
Applicant
AND: MINISTER FOR IMMIGRAITION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
28 MARCH 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 $8371.30.
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
The applicant is a citizen of Lebanon. On 10 March 2017, the applicant applied for a Subclass 457 temporary skilled work visa (“the visa”).
On 5 November 2019, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the minimum English language requirements for the grant of a temporary skilled work visa.
The applicant sought merits review of the delegate’s decision by the Administrative Appeals Tribunal (“the Tribunal”). On 20 December 2019, the Tribunal affirmed the decision under review from the delegate.
The applicant now seeks judicial review of the Tribunal’s decision in this Court.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the background of the matter, the Tribunal instructed itself to the requirements under cl 6704(15) of Schedule 13 to the Migration Regulations (1994) (“the Regulations”) that the applicant was required to meet in order to be granted his visa.
The Tribunal’s consideration concerned the delegate’s refusal of the applicant’s visa on 5 November 2019 on the basis that cl 457.22(4)(e)(b) of the Regulations, relating to English language requirements, was not satisfied.
At paragraph 3 of the decision record, the Tribunal noted that the applicant first applied for the visa on 10 March 2017. The applicant applied for the visa on the basis that he was nominated for the position of Project Administrator by an approved standard business sponsor, Sydney Wide European Autos Pty Ltd (“the nominator”). That nomination was made on 13 February 2018 and approved on 19 March 2018 (noting a prior nomination had ceased). Thus, the date of the visa application predated the application for nomination relevant to the review application before the Tribunal.
At paragraph 4, the Tribunal noted that the applicant’s application for the visa had been previously refused by a delegate 19 March 2018 in relation to a skills assessment. This was set aside by the Tribunal on 30 August 2019 and remitted to the Department for further consideration.
At paragraph 5 of its decision, on the premise of jurisdiction, the Tribunal outlined that it had jurisdiction to review decisions under the Migration Act 1958 (Cth) (“the Act”) if applications were sought under s 347 or s 412 of the Act, and pursuant to s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) in limited circumstances. The Tribunal further confirmed that the refusal to grant the visa fell within the ambit of a reviewable decision under Part 5 of the Act.
At paragraph 12 of its decision, the Tribunal noted that where the requirements in cl 6704(15) of the Regulations are fulfilled, the validity of a nomination can be extended beyond 12 months following its approval. More specifically, in relation to the applicant’s case, the Tribunal noted that the visa application was made prior to the relevant application for nomination being approved on 19 March 2018. For that reason, one of the relevant considerations for the Tribunal became whether the applicant applied for the visa on 10 March 2017 on the “basis of the nomination identifying him” made on 13 February 2018.
At paragraphs 14 and 15 of its decision, the Tribunal referred to its correspondence with the applicant on 20 December 2019 inviting him to comment on the validity of the application for review, which referred to the “apparent lack of an associated approved nomination or a pending review application pertaining to the refused application for nomination”. In the applicant’s response of 23 January 2020, he contended that he received benefits from the transitional provisions of r 2.74(2)(b) and (ba) of the Regulations. After considering the applicant’s submissions and the relevant evidence residing within the Department and Tribunal files, the Tribunal decided that it did not have jurisdiction in this matter for a multiplicity of reasons. Chiefly, because the visa application was made retrospectively on 10 March 2017, the applicant could not have subsequently made the application on the “basis of the nomination identifying him” as it was made thereafter on 13 February 2018.
As a result, at paragraph 15 of its decision, the Tribunal decided that the applicant’s circumstances did not fall squarely within the purview of cl 6704(15) of the Regulations. The Tribunal deduced that cl 6704(15) operates to maintain the applicability of r 2.76(2)(b) of the Regulations – as it was at the time of the nomination on 13 February 2018. Consequently, the relevant nomination of Sydney Wide Eastern Autos Pty Ltd ceased on 13 February 2019 some 12 months after its approval, and the applicant did not subsequently identify an approved nomination which had not ceased, nor was there any evidence before the Tribunal of a pending application made by the nominator.
At paragraph 17 of its decision, the Tribunal, on 5 November 2019, concluded that the applicant, in failing to identify an approved nomination or a pending application by a nominator, meant that the approved nomination had ceased on 13 February 2019.
At paragraphs 17 and 18 of the decision record, the Tribunal reasoned – alongside the fact that it did not have jurisdiction in this matter – that the applicant did not have a valid approved nomination and fell short of meeting the requirements of s 338(2)(d) of the Act. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
GROUNDS OF JUDICIAL REVIEW
The single ground of judicial review relied upon is contained in an Amended Initiating Application filed with the Court on 15 October 2020. It is as follows (less particulars):
Ground One
The Tribunal erred in its conclusion that it did not have jurisdiction to hear this matter.
THE APPLICANT’S SUBMISSIONS
It was submitted that the Tribunal found there was no current nomination by the employer in relation to the position outlined in the visa application. It was asserted that there was an error in that reasoning. That is, the applicant did not make the visa application on the basis of the Nomination, which was lodged subsequently.
The reasoning of the Tribunal was that, because the applicant applied for the visa prior to the Nomination being lodged, he could not have applied for the visa on the basis of that Nomination. Consequently, the transitional provisions would not be able to exempt the application from the operation of r 2.75(2)(b) of the Regulations at the time the Nomination was lodged.
The applicant claimed that the Tribunal had fallen into error on this point as Kendall J, in Mangat v Minister for Home Affairs [2019] FCCA 2227 (“Mangat”), considered a similar situation to that of the applicant’s. In Mangat, Kendall J reasoned that the applicant was unable to obtain a new nomination and was never able to do so once the original nomination had expired because no new applications for nominations could be made once the statutory timeline lapsed after 18 March 2018.
The applicant submitted that if, in accordance with Kendall J’s approach in Mangat [at 100], “had the applicant taken steps to obtain a new nomination (which likely would have seen the expiry of the nomination occur after 18 March 2018), then he would have benefited from cl 6704(15) of the Regulations”.
The applicant then brought the Court’s attention to the statutory interpretation of the words “on the basis of nomination” in cl 6704(15) of the Regulations when construed in line with the intention of the transitional provisions, which was said to include cases where “the person identified in the nomination” applied for the visa before the nomination was filed. In such cases, the applicant reasoned, the visa application could still “sensibly be said to be on the basis of the nomination as it is the nomination which enables the applicant to meet the criteria for the visa”.
The applicant also relied on Modelez Australia Pty Ltd v AMWU [2020] HCA 29 to demonstrate the importance of “construing legislation in a manner that conforms to the legislative purpose even where this means not giving the words their ordinary meaning,” citing Edelman J at [96-97]:
[96] More unusual meanings of words can also be countenanced in a range of more common circumstances, and will be likely to be so countenanced where several of these circumstances exist in combination: where the ordinary meaning of the words is contrary to the scheme of the legislation; where the ordinary meaning of the words runs contrary to the legislative history; and where the ordinary meaning of the words is inconsistent with the expressed understanding of the legislative operation in extrinsic materials. None of these matters of context has any greater a priori weight than any other.
[97] Consistently with this approach, courts have sometimes interpreted statutory words in a manner contrary to their ordinary meaning in order to give effect to parliamentary intention. For instance, the Privy Council, dismissing an appeal from this Court, held that the word "arrangement" in the former s 260 of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth) does not bear the ordinary meaning of an initial plan but includes "all the transactions by which [the plan] is carried into effect". This Court held that the word "interview" in former s 570D of the Criminal Code (WA) does not bear the ordinary meaning of a formal or structured meeting but means "any conversation between a member of the Police Force and a suspect", including an informal conversation initiated by the suspect. And this Court held that the words "otherwise mutilates" in s 45(1)(a) of the Crimes Act 1900 (NSW) do not bear the ordinary meaning of injury or damage that is more than superficial but instead have an open-textured meaning of engaging, otherwise, in the undefined practice of female genital mutilation (citations omitted).
It was submitted that cl 6704(15) of the Regulations only saves applications where the application was made to the Tribunal within 12 months of the Nomination being approved. Because the applicant made the application to the Tribunal within 12 months of it being approved, that application was successful, and the matter was sent to the Department for reconsideration. It would be the later refusal of the visa that became the problem which the applicant now seeks to have reviewed, however, the application is now more than 12 months post the Nomination approval.
The applicant submitted that based on the above construction of the clause, the question now becomes, how long the first application to the Tribunal will “pause” or freeze the expiry date of the Nomination.
The seeking of the review in the Tribunal within 12 months of the approval of the Nomination suspended the Nomination until the date of the final determination. Thus, r 2.75(2)(b) of the Regulations did not cause the Nomination to cease on 13 February 2019 and so the Tribunal would still have jurisdiction to review the applicant’s application under s 338(2)(d) of the Act and r 4.02(1A) of the Regulations.
As the Tribunal did not turn its mind to the aforementioned matters, which were a central question of the statutory task, this caused a jurisdictional error to arise.
THE FIRST RESPONDENT’S SUBMISSIONS
The principles of statutory construction are “well-established” in accordance with SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, [14].
The constructional dispute in this matter concerns whether 15(a) of the Regulations can be defined to mean a person who has applied for a visa prior to the lodgement of a Nomination. Based on this, the applicant could not have applied for a visa with a Nomination lodged retrospectively. That is, “literally speaking, the applicant cannot be said to have applied for the visa on the basis of a nomination that had not yet been approved, let alone lodged, at the time of the visa application.”
The statutory construction exercise conducted by the applicant was incorrect because such a view is not found in the words of cl 6704(15) of the Regulations.
The purpose behind the visa scheme was to mandate applicants to lodge an application for the visa on the basis of an existing nomination – whether approved or not.
The applicant’s statutory construction was based on the elements set out in the Explanatory Memorandum to the Regulations, however, extrinsic materials are “less helpful than reading the legislation itself”; (see: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [74]; Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (2009) 239 CLR 27, [47].
In response to the applicant’s statutory construction of the words “on the basis of the nomination”, the first respondent identified that in the current context, the clause refers to ‘the nomination’ and not to ‘a nomination’. Consequently, if the applicant’s construction of the legislation were to be correct, it would mean that an applicant who applied for the visa (and who later withdrew their nomination or where the Nomination lapsed), could rely on a retrospective Nomination by a different employer. This would defeat the purpose of the visa scheme.
In response to the applicant’s reliance on Kendall J’s judgment Mangat, the nature of that case was factually distinct from the present case. Chiefly, in Mangat, the applicant had argued that the effect of cl 6704(15) of the Regulations was to “resurrect” a Nomination which had ceased prior to the commencement of the Amending Regulations. The applicant’s Nomination in that case ceased months prior to the commencement of the Amending Regulations, and therefore, Kendall J’s remarks remain obiter.
In an ancillary response, the first respondent argued futility. Even if it were to be accepted that the Tribunal fell into jurisdictional error, the Court would be obliged to refuse relief, in its discretion, because it would be futile to remit the matter to the Tribunal since the applicant could not meet the requirements of cl 457.223(4)(be) of the Regulations: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.
The applicant did not and does not fall into the category of persons who qualifies as an “exempt applicant” with respect to cl 457.223(4)(b) of the Regulations. This is because under cl 457.223(6) of the Regulations, to be an “exempt applicant”, the applicant’s guaranteed annual earnings in accordance with Item 10 must satisfy a minimum of $96,400.00, however, the applicant’s guaranteed annual earnings as referred to in his application were $60,000.
For these reasons, the Minister would not be satisfied that the applicant’s occupational terms and conditions are no less favourable than those that are or would be provided to an Australian citizen.
The Tribunal did not fall into jurisdictional error and the Court should refuse to grant the relief sought by the applicant by way of the Court’s discretion.
CONSIDERATION
Resolution of this matter revolves around the correct statutory construction to be placed upon cl 6704(14) and (15) of Schedule 13 to the Migration Regulations 1994 (as amended) which provide respectively as follows:
(14) Despite the amendments of regulation 2.75 made by the amending regulations, that regulation, as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to a nomination made before the commencement day.
(15) However, paragraph 2.75(2)(b) does not apply to a nomination made before he commencement day if:
(a) before the commencement day, the person identified in the nomination applied for a subclass 457 (Temporary Work (Skilled) visa on the basis of the nomination (emphasis added); and
(b) within 12 months after the day on which the nomination is approved, the person applied to the Tribunal for a review of a decision to refuse to grant the visa.
It is common ground between the parties that cl.6704(15)(b) is satisfied by the applicant. The issue relates to the interpretation of the words “on the basis of the nomination”.
It is convenient to set out a chronology as to the history of the matter in order to gain a full understanding of the it. The applicant started work with the sponsor employer in 2004. On 12 March 2013, he was granted an initial 457 visa as a project administrator with the sponsor. That visa expired on 12 March 2017.
On 10 March 2017, some two days before his initial 457 visa expired, the applicant made a further application for a second 457 visa. However, his sponsor employer did not lodge a nomination until 13 February 2018, some 11 months after the applicant lodged his visa application. On 18 March 2018, 457 visas were repealed. On 19 March 2018, the sponsor employer’s nomination was approved.
On the same day however, the applicant’s visa application was refused. The applicant sought merits review at the Tribunal. On 30 August 2019, the decision of the delegate to refuse the applicant his visa was overturned by the Tribunal and the matter remitted to the Department for further consideration.
On 5 November 2019, a delegate of the Minister again refused the applicant his visa. The applicant again sought merits review by the Tribunal. On 17 March 2020, the Tribunal found it had no jurisdiction to determine the matter.
The Court was taken to the Explanatory Memorandum in relation to the amendments. Item 178 of that Explanatory memorandum states as follows in relation to cl 6704(15):
Clause 6704, entitled Application and Transitional Provisions to Amendments of Part 2A, has the effect that the changes to the regulations relating to sponsorship and nomination under Part 2A of the Migration Regulations do not affect applications and nominations made before 18 March 2018. There are two exceptions:
Subclause 6704(15) ensures that a nomination linked to a Subclass 457 visa application will not cease during AAT review of a decision to refuse the visa. This is a beneficial change to extend the validity of a nomination, which would have otherwise ceased 12 months after approval (paragraph 2,75(2)(b) of the Regulations), to avoid situations where the applicant is successful at the AAT but the related nomination ceased to be in effect, noting that it is not possible to make another Subclass 457 nomination after 18 March 2018.
The Minister contends that the words “on the basis of the nomination” cannot extend to a nomination made after the application for the visa was made, in this case some 11 months after the visa application. Further, the Minister contends that reference should only be made to Explanatory Memorandum in circumstances where there is some confusion or uncertainty as to the Regulation. As noted above, the Minister contends that extrinsic material “is much less helpful than reading the legislation itself”.
The Court has considered the impact of two separate decisions of the predecessor of this Court in Mangat (particularly at [100] – [101]) and Poudel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3261 (“Poudel”).
Mangat involved a situation where the applicant had not obtained a new nomination after his existing one lapsed. Kendall J stated at [101] that had the applicant taken steps to obtain a new nomination he would have benefited from sub-cl 6704(15). This, in my view, is different to the current case where there was an approved Nomination. By analogy, however, Kendall J seems to accept that a new nomination would have cured the defect in the applicant’s case. However, this would have been a different nomination than that which was the original nomination. This would seem to not be a visa “on the basis of the original nomination”. This has similarities to the current case where there was a nomination after the visa application was lodged.
In Poudel, Vasta J dealt with a situation where an applicant applied to the Tribunal in a situation where there were 4 separate nominations. By the time the Tribunal dealt with the matter in October 2019, the last nomination approved on 4 September 2018 had expired. At [47] His Honour noted that the applicant applied to the Tribunal on 7 March 2018, some 6 months before the nomination was approved. His visa application had been made in July 2016. His Honour concluded that the two exceptions in cl 15 were cumulative, and the applicant did not satisfy one of them, let alone both of them.
Again, this matter is somewhat different to Poudel. While the nomination was made some 11 months after visa application in this matter, the nomination was approved on 19 March and the visa refused on the same day. The nomination in this matter lapsed during the period after the matter was remitted to the delegate for further consideration and the time the Tribunal considered the matter for a second time in March 2020.
In coming to a resolution of the correct interpretation to be placed on the words “on the basis of the nomination”, the better view is that expressed by Kendall J in Mangat. The Court is satisfied that the Explanatory Memorandum by using the term a “beneficial change to extend the validity of a nomination which would otherwise cease 12 months after the nomination” should be interpreted in the applicant’s favour. The applicant as of 19 March 2018 had an approved nomination. The effect of the transitional regulations was to preserve that nomination as valid notwithstanding the expiration of 12 months from the date of the approval. Accordingly, jurisdictional error is made out.
The Minister submitted that even if jurisdictional error was found, it would be futile to remit the matter to the Tribunal as the applicant did not meet and could not meet the requirements of cl 457.223(4)(eb), which the second delegate found the applicant did not meet [CB 168]. That clause required that the applicant undertake a language test specified by the Minister at item 9 in IMMI 17/057 and achieve the requisite score test within 3 years from the date of the visa application (i.e before 10 March 2020). There is no evidence the applicant undertook such a test or achieved the requisite score.
The exception to an applicant needing to satisfy cl 457.223(4)(eb) arises if the applicant is an exempt applicant. There is no material to reveal that the applicant falls within any of the classes of applicants specified in cl 457.223(11) (a)-(e) as an exempt applicant. The Court accepts this assertion.
If the applicant is not an ‘exempt applicant’ then cl 457.223(6) applies if:
(a)the base rate of pay for the applicant for paragraph 2.72(10(c) is at least the level worked out in a way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a sub-class 457 visa to the applicant to be in the interests of Australia.
Affidavit evidence of Katherine Evans tendered without objection (Exhibit 2) indicates that the applicant’s guaranteed annual earnings were $60,000.00, below the level set by the Minister of $96,400.00 in r 2.72(10)(c). In these circumstances, the Tribunal would be obliged to refuse the application.
The High Court of Australia stated the following in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [28] – [29]:
This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala, Gaudron and Gummow JJ noted at [56]:
“Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:
‘For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’”
The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[20], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse” [21]. In this regard, the references that were made in the course of argument to the "unbundling" of a Tribunal's reasons into "impeachable" and "unimpeachable" parts were more likely to mislead than to assist. While there may well be cases in which a tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.
In the Court’s view, the applicant cannot succeed even if the matter were remitted to the Tribunal for further consideration as he cannot meet the English language test requirement. That test is time limited, and that time limit has now expired.
In the Court’s view, the outcome in this matter is harsh. However, that is a result of the law as it stands. The Court is of the view, however, that this is a matter where the Minister may wish to consider exercising Ministerial discretion to allow the applicant the opportunity to apply for a further possibly different visa.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 28 March 2024
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