MZYYE v Minister for Immigration
[2012] FMCA 1254
•13 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYYE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1254 |
| MIGRATION – Failure to attend Tribunal hearing – whether applicant notified of hearing – whether error in postcode invalidates a notification – application for judicial review dismissed. |
| Acts Interpretation Act 1901, s.36(1) Migration Act 1958 (Cth), ss.36(2)(aa), 422B, 425, 426A, 441A, 477 Migration Act Regulations 1994, reg.4.35D |
| Luu & Anor v Renevier (1989) 91 ALR 39 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 SZIGT v Minister for Immigration & Anor [2006] FMCA 569 SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84 SZLBR v Minister for Immigration & Anor [2008] FMCA 154 SZLBR v Minister for Immigration & Citizenship [2008] FCAFC 85 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 |
| Applicant: | MZYYE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 656 of 2012 |
| Judgment of: | Turner FM |
| Hearing date: | 13 November 2012 |
| Date of Last Submission: | 13 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 13 November 2012 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Ms Gangemi |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The applicant is granted an extension of time for the filing of his application to 5 June 2012.
The application for judicial review filed on 5 June 2012 is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 656 of 2012
| MZYYE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex tempore & Revised)
The applicant has been denied a Protection (Class XA) visa and seeks judicial review of that decision. The applicant filed an application for judicial review on 5 June 2012, which contained the following grounds.
(1)RRT has erred in their decision, as given on 01/05/2012. As the applicants matter was not dealt in accordance with the principles of the natural justice, the learned member of the RRT himself confessed that the applicant has suffered the harassments, and his many close relations were killed during the Sikhs uprisings in India, and the applicant is undergoing the stress and the persecutions by the hand of the authorities back in India.
(2)The RRT has not given the country information regarding the Sikhs genocide which took place in the mid-eighties, this fact is evident from the facts and figures given by the US information department.
(3)Furthermore, decisions lakes in its spirit and letter as the Khalistan movement has not finished as yet , and the police and the other intelligences are cracking down on the families of those , who are still involved in the movement of the Khalistan, in this regard it is submitted that the applicants families back in Punjab India are still undergoing lot of interrogations and the secret police investigations. There are the examples that the family members of the Sikhs activities are facing the persecuting of the acts of the Indian authorities.
(4)RRT also access to all the necessary information’s regarding the killings and the genocides of the Sikhs in India, the RRT has also the latest information’s regarding the recent killings of the Sikhs youths and the extra-judicial killings in the state of the Punjab. The RRT did not referred to any of the information’s in the statement of the decision given on 01/05/2012 in the instant matter.
(5)In the recent times the Amnesty International also quoted many stories regarding the state killings of the Sikhs in India, moreover there are so many reports given in human rights commission regarding the amount of the persecution and the killings of the Sikhs, it is submitted that many reports which appears in the international reports are not quoted in the matters of the Sikhs uprisings, it appears that the various governments are only hesitant to quote the Indian persecution , and do not quote them , because according to them the India is a secular Country ,but in fact it is not so. Although the constitution looks to be secular , but in the practical it is a theoretic state. It is respectfully submitted that the RRT has beyond its jurisdiction and has committed an error of law as to why the applicant was pi point by some other claim, to which the applicant has no information, but this very finding of the RRT has resulted in a grave miscarriage of justice, putting the applicant in the shoes of some other refugee claimaint.
(6)May the case was same; RRT is under legal obligation to ask the information from the applicant, regarding the above set finding. This means that the RRT has gone into statement and claims of some other applicant. The applicant is not concerned with claims of others,
(7)It is widely understood that All India Sikh student federation is banned by the Indian authorities like many other Sikh organisation, information regarding ASIIF is available on the Khalistan movement website. Moreover, the applicant party in known nationalist Party.
In his amended application filed 16 October, the applicant entered the following grounds (which the Court numbers 8-19):
(8)My father Sarup Singh was injured in 1984 attack on the most sacred place of Sikhs called The Golden Temple Amritsar, As the Golden Temple is known as one of the holiest place of the Sikh religion and by orders of the then Prime Minister of India Indara (sic “Indira”) Ghandi, the army struck into the golden temple and destroyed the whole golden temple and there was a mass killing of Sikh including women and children. They tried to kill every young of the Sikhs.
(9)The Khalistan movement was and is in the best interest of the Sikhs in India. As Sikhs all over the India and overseas wanted their own independent state where they can have their own religious and cultural freedom. This movement was very popular among Sikhs and as per Indian authorities and the Indian propaganda that the Khalistan movement is dead is not correct. In reality the Khalistan movement has been strongest ever since 1979 onward. There are so many known leaders of the Khalistan movements were killed brutally by the Indian authorities. Over 100000 young Sikhs were disappeared during the time and till today; nothing has ever been heard of them.
(10)Since my father was nearly killed and He was only saved by my uncle who lay on top of him, to protect his from indiscriminate gun fire. My grandmother was also killed brutally. The passion for a Khalistan movement has since been strongest in my family. During the riots, my father was very poor so he began working to support my mother and then I was born in 1987. My father was very upset of all the atrocities he has seen, including the death of my uncle and grandmother. When I was born, He wanted me to take this fight for Khalistan further so our coming generations can live in peace. My father is a smart person, He told me to get good education, so I went to school and then after I went to university.
(11)My passion for bringing my father’s dream into reality, I joined political party called Alkali Dil Mann while I was in university. As I have seen my parents cry for the loss they suffered during their life time, I am very passionate about equal Sikh rights and their right to an independent state in India. Therefore I was always talking in school in speeches and with my friends. My father always warned me to hide my feelings in school, as it can have grave consequences on me and family. My best friend name Ajit Singh was killed, his body was found with obvious signs of torture and mutilated body parts. This made me very angry and I wanted to kill those responsible, but my father told me to calm down and pursue our dreams in peace and with legality.
(12)Therefore, in university I decided to join the Akali Dil Mann, well known political party seeking Sikh rights and lobbying for Khalistan. We as Sikhs has been victimized by the Indian authorities’ and our peoples were also killed by the Hindu extremists with the help of the Indian army .I was an active member of the Akali Dil Mann. I used to hold the meetings in my own area, in the city of Amritsar; this city is the holy city of the Sikhs living all over the India. In other words I along with my other friends was the strong supporters of the Khalistan movement. Every body from our party helped the Khalistan movement while it was on its peak, although it is still working underground. During the Army operation on the Golden Temple which was carried out by the Indian Army and other security agencies, it was great shock for all the Sikh religion every where in the world. Although I was not born at that times, but it was crystal clear that our holy places are at the mercy of the peoples, and authorities of other religion in India. There were mass killings of the Sikhs and the mass arrests by the Indian authorities, many of my relations including my uncles were killed in the above incident. Keeping all these fact I became the supporter and the member of the above party.
(13)This is an open fact that our party is a political party operating within the laws as laid down in the India. We are being blamed that we are supporting the cause of the Khalistan movement; this is a fact that we are the supporter of the Khalistan movement; we are supporting them for their cause which is based on the principle, that there should be an independent state. Our party believes in the peaceful struggle for the creation of the Independent state for the Sikh community. We are not against other religions within India. All that we want that we should struggle for our own State.
(14)After passing my Higher Secondary School, I became an activist of my above party, I used to call the public meetings , in which all the peoples from different thoughts used to attend the meetings . I used to deliver the speeches based on our manifesto to make the public at large understand as to what are our requirements. As I had seen all the acts of violence against the Sikhs, I use to tell the people in the general meetings that we were and we being discriminated by the majority of peoples in India. The doors of the employment were closed on our peoples, we were and still we are treated in the same way.
(15)I became a member of the central committee of my party within my own circle along with my friend namely Gurpal Singh and other friends of mine, although , I was young , but my activities were so effective that , I was made a member of the central committee . Our whole working body was very active like me he also used to work hard. I, along with others used to recruit more young peoples consisting of the Sikhs to join our party. We had created a student wing through out Punjab for our party; these young students under the guidelines given by Akali Dil Mann worked very hard for the promotion of our political thoughts.
(16)As I am my other friends were branded that we are the supporters of the Khalistan Movement, the secret agencies followed us. As a matter of fact I used to be chased by the security agencies for a long times, I knew this fact as many a times I was interrogated by the security agencies. Similarly all the important members were also shadowed by the above agencies. I was arrested for the first time in the year along with my colleagues, we were very badly treated by the police, and we were handed over to the special branch of the Punjab police consisting of the military intelligence officials. Our movement was and is based on the peaceful struggle, and is not based on the violence, and breaking the laws of the country.
(17)We were made to under go lot of tortures; we were made to sleep on the ice blocks, both of us to be with out food and water. We were made to awake all the times, when we use to sleep they used to bash us. There were interrogating as to which enemy agents we are working with, and how we are being financed. After about three weeks we were let free on the conditions that we will not take part in the politics, we warned that they are keeping an eye on us and that they will not spare us if again we are in the politics.
(18)We kept on our political activities we were declared by our opposite parties that we are Pakistani agents, and that we should be boycotted. Our political opponents published the flyers, and pamphlets against us. After the general elections again we worked day and night for our party, once again we were made victims by the hands of the authorities. Once again we were arrested or kidnapped in real terms, bashed by the police, mistreated. We were released, but we were continuously harassed by the hands of the authorities. We were made a target our lives were in danger as we than used to get the threats that we shall be killed, my parents and my friends parents used to get the threats.
(19)I had no alternative to survive in India, I decided to flee from the country, I obtained a student visa, and came to Australia, I, had a real chance of being killed by the hands of the authorities in India, based on my political opinions, I have an subjective and objective fear of life in India. Once a person comes in the light of these events, he has no place in India. There is a real and well founded fear to my life and is in great danger of being killed if I am sent back to India.
The applicant seeks an extension of time to make his application for judicial review. Section 477 of the Migration Act 1958 (the “Act”), specifies the provisions relating to an extension of time as follows:
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3)In this section:
"date of the migration decision" means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
(c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the oral decision; or
(d)in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
The applicant had 35 days from the date of the Refugee Review Tribunal’s (the “Tribunal”) decision (being 30 April 2012), to make his application for judicial review. His application had to be made by 4 June 2012, as by s.36(1) of the Acts Interpretation Act 1901, the date of 30 April is excluded in reckoning the end date. The application was made one day late, on 5 June 2012.
To obtain an extension, an application for extension must be made in writing. That was done in the application for judicial review. The application must state why the applicant believes it is necessary to extend the time in the interests of the administration of justice. That is done, as the grounds of application for extension of time are set out in the application filed on 5 June 2012.
The first respondent does not oppose an extension of time, and, in fact, consents to an extension of time.
The Court considers that it is necessary in the interests of the administration of justice to extend the time to 5 June 2012, and does so.
The applicant is a citizen of India, of Sikh religion (Court Book “CB” p.16-19). He came to Australia on 26 February 2009, on a student visa, and applied for a protection visa on 14 June 2011 (CB p.6)
The delegate of the Minister refused the application for a visa on 28 October 2011 (CB p.66). The applicant lodged an application for review of the decision of the delegate on 22 November 2011 (CB p.89 [24]). On 6 March 2012, the Tribunal invited the applicant to appear before it on 26 April 2012 to give evidence and present arguments (CB p74-75).
In that letter, the Tribunal advised that it had:
“considered the material before it but is unable to make a favourable decision on this information alone.”
And that:
“…if ( the applicant) failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it”.
Section 426A of the Act provides
(1)If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ (supra) per Downes J at [5].
By proceeding to a decision without hearing from the applicant, the Tribunal acted in accordance with the statutory scheme: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]. Further, there is no obligation on the Tribunal to make inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].
Section 426A of the Act sets out the consequences of failure to appear before the Tribunal. By s.425 of the Act, the Tribunal must invite the applicant to appear (CB p.74).
By section 425A of the Act, the Tribunal must give the applicant notice of the time and date on which to appear. That was done at CB p74, being on 26 April 2012 at 10 am.
Section 441A of the Act sets out the methods for serving the notice. Pursuant to s.441A, it has to be sent within three working days of the date of the document. That was done (CB p.89 [25]). Section 441A provides for sending by prepaid post at the last address for service. The invitation was sent to the applicant at 40 Springvale Road, Springvale, Victoria, 3178. There was an error in the postcode, but that does not invalidate the service. The address the invitation was sent to was the last address for service, other than the incorrect postcode. The Court finds that the invitation was properly served on 23 March 2012, as an Australia Post document has been handed to the Court evidencing that receipt.
The applicant has admitted to the Court that he received the invitation to attend the hearing.
The decision in SZIGT v Minister for Immigration & Anor [2006] FMCA 569, was referred to, but that decision is not binding in these circumstances, as the applicant received the invitation. SZIGT is also contrary to later decisions. For instance, SZLBR v Minister for Immigration & Anor [2008] FMCA 154 was handed down on 15 February 2008. At [32] of that decision, it is recorded that the invitation contained an error in the postcode. At [40], her Honour held:
“In light of those definitions, the address of “one’s place of residence” is properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification of that physical location.”
Two decisions of the Full Court of the Federal Court were referred to, being SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84 and SZLBR v Minister for Immigration & Citizenship [2008] FCAFC 85, on appeal against the decision of Emmett FM.
In SZKGF at [4], the Full Court referred to an incorrect postcode being used in that case. The Full Court went on to say:
“we see no reason to disagree with the views expressed by the learned Federal Magistrate in dismissing these claims…”
At [10]:
“In any event there are cogent reasons for concluding that the postcode is not part of the address and therefore the use of the incorrect postcode did not result in non-compliance with s 424A(2)(a). On this point see the views expressed by Emmett FM in SZLBR v Minister for Immigration and Citizenship [2008] FMCA 154 at [39]- [40].”
At [8]:
“…there has been no practical injustice… the appellant, he received both invitations”.
And at [13]:
“the clear absence in this case of any practical injustice or even inconvenience to the appellant resulting from the postcode error is such that, were we to find that there had been a jurisdictional error, we would, in the exercise of our discretion decline to grant relief. “
In SZLBR, the Full Court on appeal from the decision of Emmett J at [13] and [15] adopted what was held in SZKGF. The appellant in that case had received the invitation and no practical injustice occurred. In the current case, the applicant has received the invitation and no practical injustice occurred. The Court is bound by the decisions on appeal in SZLBR and SZKGF. Therefore, the error of one digit in the postcode, in relation to the invitation to attend by the applicant does not mean that the invitation was not properly sent to the applicant.
Regulation 4.35D of the Migration Act Regulations 1994 (the “Regulations”) requires that the period of notice under s.425A(3) must be at least 14 days. The notice of invitation was given on 6 March 2012 but not actually served until 23 March 2012. That date comes from the Australia Post proof of delivery. The hearing was on 26 April 2012, therefore, more than 14 days notice was given.
The Court finds that the requirements for notifying the applicant of the invitation to attend were complied with. The inevitable result of the failure to attend was the rejection of the application. The court refers to SZIGQ (supra). The reason for non-attendance did not matter: SZIGQ (supra).
The court finds that there is no evidence that the Tribunal failed to consider relevant material that was before it or had made its decision to proceed under s.426A in a manner that that was perverse or otherwise unreasonable. The court refers to the decision in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568.
The Tribunal found that the applicant’s claims were very general and lacked detail in significant aspects (CB p.89 [30]). Because of the lack of detail, the Tribunal was not satisfied that the applicant was a member of the Akali Dil Mann political party in India or a supporter of the Khalistan movement (CB p.90 [31)
The Tribunal was not satisfied that the applicant, his friends and family members were harmed, harassed or threatened by the authorities (CB p.90 [31]). The Tribunal was not satisfied that anyone ever targeted the applicant for political or any other convention related reason (CB p.90 [31]).
The Tribunal stated the applicant had “not provided the level of detail necessary to satisfactorily establish the relevant facts of his case”. (CB p.90 [32]).
In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 [40]:
“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened”.
And at [84]:
“Accordingly, neither the Tribunal itself nor the primary decision-maker acts as a contradictor to a visa applicant’s case. But an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider”. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40].
Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out”.
A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.
The Court applies the following decision in another matter:
“The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected”.
The applicant’s failure to provide sufficient information about his claims to satisfy the Tribunal was a valid reason for the application to be rejected: NAST, NAVX and VSAF of 2003 (supra).
It was properly open to the Tribunal to find that it was not satisfied that there was a real chance for the applicant being persecuted now or in the reasonably foreseeable future for any Convention related reasons; or that he would suffer a real risk of significant harm under the complementary protection criterion should he return to India (CB p.89 [29] and p.90 [33 – 34])
Complementary protection is a term used to describe the provisions for people who are not refugees but who cannot be returned to their home country because there is a real risk that they will suffer certain types of harm that engage Australia’s non-refoulement (that is “non-return”), obligations. Those provisions are set out in s.36(2)(aa) of the Act..
The Tribunal complied with the requirements of Division 4 of the Act, which by s.422B is an exhaustive statement of the natural justice hearing rule.
The Court finds no error of law or fact in the Tribunal finding (at CB p.90) that it was not satisfied that the applicant is a person whom Australia has protection obligations under the convention or under the complementary protection provisions in section 36(2)(aa).
The application for judicial review is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 25 January 2013
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