Re Singh and Minister for Immigration and Citizenship
[2007] AATA 2023
•6 December 2007
CATCHWORDS – PRACTICE & PROCEDURE – jurisdiction - whether Tribunal has jurisdiction to review application – requirement of a person being a permanent resident under Australian Citizenship Act – not a permanent resident at time of making the application - no jurisdiction
PRACTICE & PROCEDURE – extension of time – would be jurisdiction if application lodged at a later time – extension of time granted.
Administrative Appeals Tribunal Act 1975 ss 25, 25(1), 25(2), 25(3), 25(3)(c), 25(4), 25(6)(b), 29(7), 29(8) and 37(1)(a)
Acts Interpretation Act 1901 s 8
Migration Act 1958 ss 5(1) and 30(1)
Migration Regulations 1994 r 155.511
The Australian Citizenship (Transitionals and Consequentials) Act 2007 Schedule 3, Part 1, Items 7, 10 and 12
Australian Citizenship Act 2007 ss 2, 3, 5, 5(1)(a), 5(1)(b), 21, 21(2), 21(2)(b), 24, 24(1), 52(1)(b) and 52(2)
Australian Citizenship Act 1948 ss 5(1), 5A, 5A(1)(bb)(i), 13, 13(1), 13(1)(a), 13(1A), 13(1A)(a), 13(9)(a), 13(9)(b), 52A and 52A(2)
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; 87 ALR 506
Jebb v Repatriation Commission (1988) 80 ALR 329
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re McGourty and Repatriation Commission (1988) 9 AAR 87
Re Tiknaz and Director-General of Social Services (1981) 4 ALN 44
Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525; 240 ALR 23
Surinakova v Minister for Immigration and Ethnic Affairs (1991) 33 FCR 87; 26 ALD 203
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
DECISION AND REASONS FOR DECISION [2007] AATA 2023
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/2849
GENERAL ADMINISTRATIVE DIVISION )Re:MALVINDER SINGH
Applicant
And:MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 6 December 2007
Place: Melbourne
Decision:1. The Tribunal does not have jurisdiction to consider the application for review of the respondent’s decision dated 24 February 2007 lodged on 2 July 2007; and
2.The time within which the applicant may lodge a further application for review of the respondent’s decision is extended to and including 2 January 2008.
S A FORGIE
Deputy President
REASONS FOR DECISION
The Minister for Immigration and Citizenship (Minister) refused Mr Malvinder Singh’s application for a grant of Australian citizenship under s 13 of the Australian Citizenship Act 1948 (1948 Act). I have decided that the 1948 Act applies even though it has since been repealed and the Australian Citizenship Act 2007 (2007 Act) has come into operation since 1 July 2007. When the Minister made his decision on 24 February 2007 and when Mr Singh applied to this Tribunal on 2 July 2007[1] for review of that decision, he was no longer a permanent resident. Since 6 September 2007, he is again a permanent resident for the purposes of the 1948 Act. I have decided that the Tribunal did not have jurisdiction to review the Minister’s decision because he was not a permanent resident when he lodged his application and so did not meet the requirement of s 52A(2) of the 1948 Act. I have also decided that Mr Singh had applied for an extension of time within which to lodge a further application and have granted that application to enable him to lodge it by 2 January 2008. If he lodges his application by that date, he will meet the requirements of s 52A(2).
BACKGROUND
[1] Mr Singh did not receive notice of the Minister’s decision until 7 June 2007
On 24 February 2007, a delegate of the Minister for Immigration and Citizenship (Minister) refused Mr Malvinder Singh’s application for a grant of citizenship under s 13 of the 1948 Act. The letter advising him of that decision told him that, as he had:
“… failed to provide the required documentation, that officer [of the Department of Immigration and Citizenship, who was the Minister’s delegate] was unable to assess whether you meet all of the relevant criteria under section 13 of the … Act. As you have not satisfied the relevant criteria, your application has been refused.”[2]
The Minister’s statement lodged under s 37(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act) referred to three of the bases on which he would claim that the decision could be supported.
They are:
“24.1 that the applicant had not satisfied the delegate that he was of good character, as required by s 13(1)(f) of the Act,
24.2that the applicant was not a permanent resident as required by s 13(1)(a) of the Act, and
24.3that the applicant was not onshore or a permanent resident engaged in offshore activities beneficial to Australia’s interests, as required by s 13(1A) of the Act.”[3]
[2] Documents lodged under s 37(1) of the AAT Act (T documents), 70
[3] T documents, 12
On 2 July 2007, Mr Singh lodged an application in the Tribunal seeking review of the Tribunal’s decision but, in a letter written on 3 August 2007 on his behalf, the Minister challenged the Tribunal’s jurisdiction to consider the application. He did so on the basis that the Tribunal’s jurisdiction is precluded by s 52A(2) of the 1948 Act. Section 52A(2) provides that:
“A person is not entitled to make an application under subsection (1) for review of a decision under section 13 (other than paragraph 13(9)(a) or (b)) unless the person is a permanent resident.”
Mr Singh submitted that the Tribunal does have jurisdiction. He submitted that, since 6 September 2007, he has once again become a permanent resident and that his permanent residence status has not been cancelled or revoked. Since that date, he has held a Class BB Resident Return Visa Subclass 155. In light of that, Mr Singh submitted, the Tribunal should extend the time within which he could make his application so that his application becomes an application made after 6 September 2007. He put his submission this way:
“… the effective time for making an application to the Tribunal is the time when it comes on for hearing. I am now again (since 6 September 2007) a permanent resident of Australia and therefore claim to have standing before the Tribunal. My permanent residence at no stage has been revoked or cancelled.”[4]
[4] [1] Applicant Submission
Mr Singh put forward several bases for his submission that it is reasonable to extend the time for the application. The first is that the more recently enacted 2007 Act does not require an applicant for Australian citizenship to be a permanent resident. Another, Mr Singh submitted, is that he and his ten year old daughter had been approved for a grant of Australian citizenship on 30 June 2006 and the relevant fees paid. The grants were subject only to their providing a Police Clearance Certificate from the Indian High Commission in Canberra (High Commission). Despite his calling the High Commission, it had delayed sending the relevant certificate to the Department of Immigration and Citizenship (Department) for ten months. That delay was not his fault. He did not apply for a renewal of his permanent resident visa because he thought it inappropriate to do so when he had already applied for and been approved for citizenship. He had been absent from Australia for some months due to his father’s ill health but it is the family’s intention to return to Australia at the earliest opportunity. Mr Singh noted that his son is already an Australian citizen by reason of his birth and submitted that, in the interests of family cohesion, it is desirable that all members of his immediate family hold Australian citizenship.
LEGISLATIVE FRAMEWORK
The Administrative Appeals Tribunal Act
The starting point for my consideration is the AAT Act by which the Tribunal was created. More particularly, the starting point is s 25. That section establishes the framework in which an enactment, other than the AAT Act itself these days, provides that an application may be made to the Tribunal for the review of a decision. Section 25(1) provides:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; ….”
Section 25(4) provides the necessary corollary to this sub-section when it provides that the “... Tribunal has power to review any decision in respect of which application is made to it under any enactment.” The general powers of the Tribunal are found in other provisions of the AAT Act.
The remaining ten sub-sections of s 25 go on to refine the general proposition made in s 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. Of particular interest in this case is s 25(6) which provides:
“If an enactment provides for applications to the Tribunal:
(a)that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 21, 21A, 22, 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and
(b)those sections and subsections have effect subject to any provisions so included.”
It is clear from s 25 generally and from ss 25(1) and 25(2), which I have set out, that Parliament intended that the Tribunal’s power of review be defined and circumscribed by the enactment providing for that review. That intention is underlined by s 25(3). It permits an enactment to specify conditions subject to which applications to the Tribunal may be made.[5] The upshot for this case is that the Tribunal will only have jurisdiction to review a decision if that decision is of a sort for which an enactment provides for its review. This interpretation is consistent with the statements made by the Attorney-General in his Second Reading speech in the House of Representatives.[6]
[5] AAT Act s 25(3)(c)
[6] Hansard, House of Representatives, page 1187
The 1948 Act
The decision made by the delegate of the Minister was made under ss 13(1) and (1A) of the 1948 Act. Section 13(1) provided that the Minister may grant a certificate of Australian citizenship to a person who satisfied the Minister of the nine matters it set out. The first is that the person was a permanent resident.[7] Where a person was not present in Australia at the time the Minister considered the grant of Australian citizenship, the Minister must not grant that certificate if the person was a permanent resident.[8]
[7] 1948 Act, s 13(1)(a)
[8] 1948 Act, s 13(1A)(a)
Section 52A of the 1948 Act provided for review of decisions under s 13 but it was subject to an exception. The exception was that, subject to two provisos that are not relevant in this case,[9] a person was not entitled to apply for review of a decision under s 13 unless the person was a permanent resident. That was the effect of s 52A(2). I will return to what is meant by the term “permanent resident”.[10]
[9] s 52A(2). The provisos are ss 13(9)(a) (relating to a person who has not attained 18 years) and (b) (relating to a person who has attained 18 years but who made an application before attaining that age)
[10] See [18] – [20] below
The 2007 Act
The relevant provisions of the 2007 Act commenced operation on 1 July 2007 and so after the date of the delegate’s decision.[11] Even though I do not consider them relevant in this case, I will set out two sets of the provisions of the 2007 Act because they are relevant to Mr Singh’s submissions.
[11] 2007 Act, s 2
The first set is found in Subdivision B of Division 2 of Part 2, which provide for citizenship by conferral. There are seven situations in which a person may be eligible to become an Australian citizen by conferral. One of those situations requires the applicant for citizenship to meet the general eligibility requirements of s 21(2). There are eight requirements and the second is that “… the person … is a permanent resident at that time”.[12] There is no suggestion that Mr Singh comes within any of the other six situations. If a person makes an application under s 21, the Minister must approve or refuse to approve the person’s becoming an Australian citizen. That is the effect of s 24(1) of the 2007 Act.
[12] 2007 Act, s 21(2)(b)
The second set of provisions that is relevant is found in s 52(1)(b), which provides for the Tribunal to review a decision under s 24 to refuse to approve a person’s becoming an Australian citizen. Section 52(2), however, qualifies a person’s right to make an application. It provides that:
“However, if:
(a)the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen; and
(b)the Minister’s reasons for the decision did not refer to the eligibility ground in subsection 21(8) (about statelessness); and
(c)the person was aged 18 or over at the time the person made the application to become an Australian citizen;
a person (the applicant) cannot apply for review of that decision unless the applicant is a permanent resident.”
Transitional Act
The Australian Citizenship (Transitionals and Consequentials) Act 2007 (Transitional Act) provides for transitional and consequential matters relating to the enactment of the 2007 Act as well as for the repeal of the 2005 Act.
If an application had been made under s 13 of the 1948 Act but had not been decided before 1 July 2007 when the 2007 Act came into operation, the application was to be taken to be an application under s 21 of the 2007 Act and decided according to its provisions. That is the effect of item 7 of Part 1 of Schedule 3 of the Transition Act.
In so far as the review of decisions made under the 1948 Act is concerned, item 10 of Part 1 of Schedule 3 provides that:
“Despite the repeal of the old Act made by item 42 of Schedule 1, section 52A of the old Act continues to apply in relation to a decision made under that Act, as if that repeal had not been made.”
Item 12 goes on to provide that Part 1 “… does not limit the operation of section 8 of the Acts Interpretation Act 1901 in relation to the repeal of the old Act.” In so far as it is relevant to this case, s 8 provides, in so far as it is relevant, that:
“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)…
(b)affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; …
(d)…
(e)…
…”
Permanent resident
Section 5A of the 1948 Act provided the circumstances in which “A person who is not an Australian citizen shall be taken to be, or to have been, a permanent resident for the purposes of this Act …”. Section 5A(1)(bb)(i) provided that a person holding a permanent visa was taken to be a permanent resident. A “permanent visa” had the meaning it is given in the Migration Act 1958 (Migration Act).[13]
[13] 1948 Act, s 5(1)
When it is used in the 2007 Act, the expression “permanent resident” has the meaning given to it by s 5.[14] Section 5 is worded differently from s 5A of the 1948 Act. In the case of a person who is overseas at the relevant time, as Mr Singh was at the time of this hearing, a person must hold a permanent visa and have previously been present in Australia and held a permanent visa immediately before last leaving Australia.[15] If Mr Singh were in Australia at the relevant time, he would be a permanent resident if he held a permanent visa at that time.[16]
[14] 2007 Act, s 3
[15] 2007 Act, s 5(1)(b)
[16] 2007 Act, s 5(1)(a)
In both Acts, the term “permanent visa” has the meaning given to it in the Migration Act.[17] That meaning is set out in s 30(1) of the Migration Act:[18]
“A visa to remain in Australia (whether also as a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.”
The Class BB Sub Class 155 Resident Return Visa, which Mr Singh held until 21 December 2006, was a permanent visa permitting him to travel to and enter Australia for, in his case, five years.[19] On entering Australia during that period, he was permitted to remain indefinitely. Therefore, for the purposes of both the 1948 Act and the 2005 Act, Mr Singh was a permanent resident while he held that visa. As soon as he was granted the same class of visa on 6 September 2007, he again held a permanent visa. He again became regarded as a permanent resident for the purposes of both Acts. In the period between 21 December 2006 and 6 September 2007, however, he did not hold a visa to come to Australia at all and so was not a permanent resident under either Act.
CONSIDERATION
[17] 1948 Act, s 5(1) and 2007 Act, s 3
[18] Migration Act, s 5(1)
[19] Migration Regulations 1994, Schedule 2, r 155.511
Decision reviewable under the 1948 Act and not the 2007 Act
It is clear from the provisions of the Transitional Act, to which I have referred, that an application made and decided while the 1948 Act was in operation is to be reviewed under that Act. It is not to be reviewed under the 2007 Act. The 2007 Act would only have been relevant if the delegate had not decided Mr Singh’s application before 1 July 2007 as Mr Singh’s application under s 13 of the 1948 Act would then have been treated as an application under s 21 of the 2007 Act. That is not the case here.
Application for review not properly made as Mr Singh not a permanent resident at the time he lodged it in the Tribunal
It follows from my conclusion that Mr Singh could only apply for review of the Minister’s decision if he was permitted to do so by the 1948 Act. Only s 52A of that Act is relevant. As I have previously observed, a person who had applied for a grant of citizenship under s 13 and who did not come within the terms of ss 13(9)(a) or (b), was not entitled to make an application unless a permanent resident. Mr Singh was not a permanent resident when he lodged his application for review in the Tribunal on 2 July 2007. He was not to become one until 6 September 2007. Therefore, he was not entitled to apply. In light of s 25(4) of the AAT Act, it follows from the fact that Mr Singh may not make an application to it that the Tribunal does not have power, and so the jurisdiction, to review the Minister’s decision.
The relevance of his becoming a permanent resident since he lodged his application
Mr Singh has sought to overcome this difficulty by suggesting that he apply for an extension of the time within which to lodge his application. His request to the Tribunal to extend time is found in his submissions dated 27 September 2007. It complies with the requirement that such an application be in writing.[20] There is nothing in the 1948 Act that modifies or restricts the Tribunal’s power to grant an extension of time. Its power is found in s 29(7) of the AAT Act. If the time were extended to a time after 6 September 2007 then, arguably, he would overcome the problem presented by s 52A(2). He would then be a permanent resident.
[20] AAT Act, s 29(7)
Section 29(7) of the AAT Act permits the person whose interests are affected by a decision to apply for an extension of the time allowed to lodge an application in accordance with s 29(7) of the AAT Act. That person may do so even though the time for an application has expired.[21] The Tribunal’s power is given by s 29(7) in these terms:
“The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”
[21] AAT Act, s 29(8)
An extension of time would only be granted after taking into account a number of issues. The only issue among them that is relevant in this case relates to the prospects of success of an application if time were extended to permit its being lodged. A consideration of the prospects of success requires me to have regard to whether Mr Singh could satisfy the requirements of s 13. In particular, it requires me to consider whether the Tribunal would be limited to considering whether Mr Singh satisfied the criteria in s 13 on 24 February 2007 when the Minister’s delegate made the decision refusing his application or whether it would be considered at the date the Tribunal made its decision on review. If the former date, any application that Mr Singh made could not succeed as he was not a permanent resident on that day. If the date of the Tribunal’s decision on any review, he would satisfy the criteria of being a permanent resident as he has enjoyed that status since 6 September 2007.
If he were permitted to make an application, I have decided that the Tribunal would review the decision and so consider whether he met the criteria at the date of its decision. Therefore, he would meet the criterion in s 13(1) and his application would have some prospects of success. Mr Singh has lodged an application for an extension of time, and I will consider this aspect in the context of his application later in these reasons.[22]
[22] See [34] below
I will briefly set out my reasons for my conclusion regarding the date on which Mr Singh must meet the criteria under s 13. As a general proposition, the Tribunal is not limited to the facts that were before the decision maker. Its role was succinctly stated by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs[23] when they said:
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”[24]
[23] (1979) 24 ALR 577; 2 ALD 60
[24] (1979) 24 ALR 577; 2 ALD 60 at 589; 68
There is, however, a distinction to be drawn between what could generally be described as cancellation decisions on the one hand and entitlement decisions on the other. Decisions relate to a wide and diverse range of matters from a social security pension to a registration to carry out a certain occupation or activity. Cancellation and refusal decisions may take various forms and have different consequences but there remains a distinction between the two.
The distinction has been made in a number of cases, some of which were brought together by Davies J in Freeman v Secretary, Department of Social Security.[25] His Honour was concerned with a decision to cancel a widow’s pension and he reviewed the earlier decisions of Re Tiknaz and Director-General of Social Services,[26] Jebb v Repatriation Commission,[27] Re Easton and Repatriation Commission[28] and Re McGourty and Repatriation Commission.[29] The principles that can be drawn from his decision are that regard must always be had to the nature of the decision under review. The Tribunal is entitled to take into account all of the facts proved before it but must do so within the confines of the decision under review. So, in the case of Mrs Freeman, Davies J said that the issue to be decided by Tribunal:
“…was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow’s pension as at the date of the Tribunal’s decision.”[30]
[25] (1988) 19 FCR 342; 87 ALR 506
[26] (1981) 4 ALN 44 (Davies J, President, Senior Member Ballard and Dr Garlick, Member)
[27] (1988) 80 ALR 329 (Davies J)
[28] (1987) 12 ALD 777 (Davies J)
[29] (1988) 9 AAR 87 (Davies J)
[30] (1988) 19 FCR 342; 87 ALR 506 at 345; 509
His Honour contrasted the task that the Tribunal had to undertake in:
“… Re Tiknaz, in Re Easton, in Jebb’s case and in McGourty’s case, [where] the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the tribunal’s decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal’s decision.”[31]
[31] (1988) 19 FCR 342; 87 ALR 506 at 345; 509
If limited to reviewing the decision at the time it was made, there are limits on the evidence to which the Tribunal may have regard. Those limits are illustrated by the judgment of Wilcox, Burchett and French JJ in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services.[32] The limited way in which regard can be had to evidence of events after the date of the decision was referred to a year earlier by Hill J in Surinakova v Minister for Immigration Local Government and Ethnic Affairs.[33]
[32] (1992) 39 FCR 225 at 234
[33] (1991) 33 FCR 87; 26 ALD 203
The approach I have outlined in the preceding paragraphs accords in principle with that adopted by the majority in Shi v Migration Agents Registration Authority.[34] Special leave to appeal to the High Court has been granted but the majority’s view remains the law by which I am presently bound. This means that I must decide the date on which I consider the merits of the decision under review according to the legislative framework in which the decision is made and the nature of the decision.
[34] [2007] FCAFC 59; (2007) 158 525; 240 ALR 23, Nicholson and Tracey JJ, Downes J dissenting.
A decision under s 13 is a decision that falls into the class of decision conferring a right, privilege, benefit or entitlement of some sort. Section 13, under which the decision was made, does not link the person’s meeting the criteria it sets out in s 13(1) to any particular time period. It does not, for example, provide that the person must meet them at the time of making an application for a grant of Australian citizenship. Had it been an essential step, Parliament could have provided for it just as it provided in s 13(1), in effect, that the Minister’s power to make a decision was only enlivened once an applicant had made an application in accordance with an approved form. All that s 13(1) requires is that the person satisfies the Minister that he or she meets the criteria. Applying the principles to which I have referred, that means that the Tribunal should, on any review, consider whether Australian citizenship should be granted not only at the date of the application under s 13 but also up to the time of its decision.
It follows from my conclusion that Mr Singh would meet the criterion relating to permanent resident at the time of the Tribunal’s decision. He would also have reasonable prospects of success of meeting the good character criterion now that he has obtained an Indian police clearance certificate. Since the hearing of this matter, I note from a letter written on behalf of the Minister that Mr Singh’s application for an extension of time would not be opposed. That letter was written on the basis that he had not made an application but I have interpreted his letter of 27 September 2007 as meeting the requirements of s 29(7) of the AAT Act. Having regard to all relevant matters, I have decided that Mr Singh’s application for an extension of time within which to lodge an application for review of the Minister’s decision dated 24 February 2007 should be extended to 2 January 2008. Mr Singh will be sent a copy of my decision by email and so he should have sufficient time within which to lodge an application.
Future directions
I also noted that, should the Tribunal grant the application for an extension of time as I have done, the Minister would also consent to the substantive application’s being remitted to the Minister for reconsideration in light of Mr Singh’s now being a permanent resident. Whether Mr Singh would want to consent to that course or whether he would want the matter to remain with the Tribunal while the Minister reconsiders his decision, would be something for him to decide upon. Ultimately, the course of the proceeding would be for the Tribunal to decide if the parties could not agree. It is too early to say what it would do. What can be said, is that the Tribunal does not have power to do more until Mr Singh lodges an application for review of the Minister’s decision dated 24 February 2007.
I certify that the thirty-five. preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: .......................................................................
Jayne Haydon Associate
Date of Jurisdiction Hearing 20 September 2007
Date of Decision 6 December 2007
Solicitor for the Applicant unrepresented
Solicitor for the Respondent Mr J. Forsaith
Australian Government Solicitor
5
5
0