Ringo v Minister for Immigration
[2015] FCCA 619
•27 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RINGO v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 619 |
| Catchwords: MIGRATION – Judicial review – decision of Migration Review Tribunal – Tanzanian national – Student (Temporary) (Class TU) visa – whether document contains information false or misleading in a material particular – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 375A, 474, 476 Migration Regulations 1994 (Cth), Sch.2, cl.572.224 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421, (2001) 65 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 Trivedi & Ors v Minister for Immigration & Border Protection& Anor [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252 |
| Applicant: | SANDRA JUDITH AIKA RINGO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 292 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 16 March 2015 |
| Date of Last Submission: | 16 March 2015 |
| Delivered at: | Perth |
| Delivered on: | 27 March 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr B Dube |
For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 292 of 2014
| SANDRA JUDITH AIKA RINGO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 24 September 2014 the applicant, Sandra Judith Aika Ringo[1] seeks judicial review[2] under s.476 of the Migration Act 1958 (Cth)[3] of a decision of the second respondent, the Migration Review Tribunal.[4] The Tribunal affirmed a decision of a delegate[5] of the first respondent, the Minister for Immigration and Border Protection,[6] to refuse to grant a Student (Temporary) (Class TU) visa[7] to Ms Ringo.
[1] “Ms Ringo”.
[2] “Judicial Review Application”.
[3] “Migration Act”.
[4] “Tribunal” and “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 113-124.
[5] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 68-72.
[6] “Minister”.
[7] “Student Visa”.
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)Ms Ringo is a citizen of Tanzania;[8]
b)Ms Ringo lodged the Student Visa application on 1 June 2012;[9]
c)on 8 August 2012, the Delegate Decision refused to grant Ms Ringo the Student Visa, being satisfied that Ms Ringo had supplied false or misleading information to the Department of Immigration and Citizenship,[10] and therefore did not meet Public Interest Criteria 4020[11] for the purposes of cl.572.224 of Schedule 2 to the Migration Regulations 1994 (Cth);[12]
d)on 23 August 2012 Ms Ringo lodged an application for review to the Tribunal;[13] and
e)on 27 August 2014:
i)Ms Ringo attended the Tribunal hearing, gave oral evidence and presented arguments;[14] and
ii)the Tribunal affirmed the Delegate’s Decision not to grant the Student Visa to Ms Ringo.[15]
Tribunal Decision
[8] CB 1.
[9] CB 1-14.
[10] “Department” (now the Department of Immigration & Border Protection).
[11] “PIC 4020”.
[12] “Migration Regulations”.
[13] CB 73-82.
[14] CB 108-111.
[15] CB 113 and 120, Tribunal Decision at para.35.
Factual background
The relevant factual background to the Tribunal hearing, taken from the Delegate’s Decision, is set out in the Tribunal Decision as follows:
a. On 3 July 2012, the applicant provided financial documents from Ms Jadith Acosta, who claims to be the applicant's friend. The applicant also provided a signed letter, dated 27 June 2012, from Jadith, who certified that she would provide “assurance of support for her whilst study in Australia”.
b. On 4 July 2012, an officer telephoned Jadith and asked if she had given her bank statements to another person to use for a student visa application. Jadith answered “no”. Jadith was also asked if she knew a person called Sandra Ringo and she answered “no”.
c. On 4 July 2012, an email was sent to the applicant asking her to provide comment on the adverse information and to provide a statement indicating compelling and/or compassionate reasons for why the Department should waive PIC 4020.
d. On 6 August 2012, the applicant's education agent [Miriam] provided the Department with a covering letter indicating that the applicant and Jadith are friends and Jadith was " well and willing to provide the assurance of support" for the applicant. Miriam attached a letter from Jadith.
e. The letter, dated 5 July 2012, from Jadith confirmed that she received a telephone call from the Department in early July 2012 asking her if she was going to provide an assurance of support for Sandra Ringo. She was very nervous and did not understand properly and she said she did not know anyone called Sandra Ringo. She does know Sandra Ringo, although she did not know her by that name, but by her nickname of " Sandy". Sandy is her friend. The applicant asked Jadith to help her with the assurance of support because her mother was travelling and the applicant could not get in touch with her to get financial documents. As Jadith has sufficient money to cover her costs in Australia, she was happy to support her financially if the applicant needs it as she (Jadith) can access her Colombian bank account in Australia. She is very sorry for what happened to Sandra but she " honestly got very nervous specially to speak on the phone as I am still learning English in Australia".
f. The letter dated 5 July 2012, purporting to be from Jadith was not signed.
g. It is implausible that a person that does not even know the full name of another person will be willing to provide financial support to the value of $25,000 to a " friend".
h. It should be noted, for any potential review of this decision, that Jadith has provided “sponsorship” letters for other student visa applicants" and that those applicants had the same education agent as this applicant.
i. The delegate was of the view that Jadith had " no intention of actually physically providing to Sandra the funds as is claimed in the assurance of support letter'' and that ''the letter has been provided merely to satisfy the criteria as required for the visa application and is misleading and non-genuine". [16]
[16] CB 114-115, Tribunal Decision at para.4(a)-(i). The letter of 27 June 2012 referred to in sub-para (a) will hereafter be referred to as the “Sponsorship Letter”. The Sponsorship Letter is at CB 40-41. For the sake of convenience the Court has hereunder followed the Tribunal in referring to Ms Acosta as “Jadith”.
The Tribunal hearing
The Tribunal Decision notes that Ms Ringo was invited to the Tribunal hearing to give evidence and present arguments on the review by the Tribunal.[17]
[17] CB 115, Tribunal Decision at para.5.
Ms Ringo provided the Tribunal with the following information:
a. Her statement addressing the matters raised in the primary decision.
b. The letter dated 5 July 2012 from Jadith confirming that she received a telephone call ·from the Department and explaining that she only knew the applicant as “Sandy”. This is the same letter referred to in paragraph 4(e) of this decision, however, the letter provided to the Tribunal is signed. The Tribunal notes that the signature on the letter dated 5 July 2012 is different to that on the … [Sponsorship Letter], which was also provided to the Tribunal.
c. Financial documents for Jadith and a copy of the identification page from her passport.
d. The invitation to comment on adverse information which was sent to the applicant's authorised representative on 4 July 2012.
e. Financial evidence from the applicant's mother.
f. A letter, dated 25 August 2014 in support of the applicant, from Miriam D'Auria, director of Yes Australia Education.[18]
[18] CB 115, Tribunal Decision at para.6.
At the Tribunal hearing Ms Ringo told the Tribunal that:
a. Her education agent provided her with a copy of the Department's decision but she did not read it thoroughly. The Department refused the visa because it believes she “is a fraud”.
b. The Department did not write to her asking her to comment on adverse information but she believes there was communication between her education agent, Miriam, and the Department in that regard. She agreed that Miriam was her authorised recipient for the visa application.
c. When she lodged her visa application, she did not know exactly how much money she was required to show evidence for. By the time she knew what financial evidence was required, her mother had gone to assist her sister who was having a baby and her mother therefore could not provide a bank statement when it was needed.
d. The applicant told her education agent, Miriam, that she was “stranded” because she could not obtain financial evidence from her mother who was away from home. Miriam said the applicant's friend Jadith, who was also applying for a student visa, had money in the bank and suggested that the applicant ask Jadith to provide her with a sponsorship letter.
e. The applicant knew Jadith because they had met several times in Miriam's office while there on business. The applicant and Jadith became friends, socialising away from Miriam's office and they went to clubs together.
f The applicant explained her situation to Jadith and Jadith agreed to write a sponsorship letter for her and give the applicant her bank statement.
g. The applicant knew she would not need money from Jadith because the applicant is minding someone's house and her mother had already paid her school fees. Jadith signed the … [Sponsorship Letter] to satisfy the evidentiary requirements for the applicant's visa because the applicant's mother could not provide the applicant with her own bank statement at the time.[19]
[19] CB 116, Tribunal Decision at para.7.
The Tribunal noted that:
a)the Delegate was of the view that:
i)Jadith had no intention of providing the funds to Ms Ringo, and that the Sponsorship Letter was therefore false and misleading information; and
ii)Jadith provided the Sponsorship Letter merely to satisfy the criteria for the Student Visa application; and
b)the Delegate’s view was consistent with Ms Ringo’s evidence.[20]
[20] CB 116, Tribunal Decision at para.8.
In relation to Jadith’s response when telephoned by the Department, Ms Ringo told the Tribunal that:
a. She asked Jadith what had happened when the Department telephoned her and Jadith said she got nervous because of her English and because she had also applied for a student visa. Jadith told the applicant that she forgot that she had sponsored her. She said she forgot that the applicant's full name is Sandra, because she calls her “Sandy”.
b. She does not understand how Jadith could have forgotten that she provided her bank statement and … [the Sponsorship Letter] for the applicant.
c. She and Jadith had previously talked about the fact that the applicant's full first name is Sandra, but that her mother calls her “Chandy”. Jadith said she would call the applicant “Sandy” and she did so.
d. When Jadith agreed to write the … [Sponsorship Letter], the applicant reminded her to include the applicant's full first name, Sandra, in the letter, because that is her name in her passport. Jadith did so. The Tribunal noted that Jadith wrote the … [Sponsorship Letter], including the name “Sandra” and signed the … [Sponsorship Letter] on 27 June 2012. The Tribunal said it could not understand why, a week later when the Department telephoned her, she said she did not know anyone called Sandra and did not provide her bank statement to her. The applicant said she could not explain what Jadith was thinking when the Department officer telephoned her.
e. The applicant recently asked Miriam to get another letter from Jadith to explain what happened during the telephone call with the Department, but Jadith has returned to Colombia. The applicant has left a message for Jadith on Facebook and would continue to try to get further evidence from Jadith if it would assist the Tribunal.[21]
[21] CB 116-117, Tribunal Decision at para.9.
The Tribunal:
a)read to Ms Ringo part of the Delegate’s Decision stating that Jadith provided a sponsorship letter for another person applying for a student visa who had the same education agent as Ms Ringo, but Ms Ringo said that that “was news to her”, claiming that she was unaware because she had only read the Delegate’s Decision quickly;[22] and
b)noted that the Delegate found it implausible that a person who did not know Ms Ringo’s full name would be willing to provide financial support of $25,000 to her, a matter which Ms Ringo recalled reading in the Delegate’s Decision.[23]
[22] CB 117, Tribunal Decision at para.10.
[23] CB 117, Tribunal Decision at para.11.
The Tribunal told Ms Ringo of the requirements of PIC 4020(4) allowing the waiver of the bogus documents or false or misleading information provisions by reason of certain compelling, or compassionate or compelling, circumstances.[24] Ms Ringo submitted that the following circumstances met the tests in PIC 4020(4):
a. She has now provided the Tribunal with a letter from her mother and her aunt’s bank statement and can provide further financial information if necessary.
b. She did not intend to do anything wrong when she provided … [the Sponsorship Letter] to the Department.
c. She has been in Australia for almost 8 years and has not broken the law in that time. She wants to “clear [her] name” in regard to the visa application because she knows she could be prevented from obtaining another visa for a period of three years.[25]
[24] CB 117, Tribunal Decision at para.12.
[25] CB 118, Tribunal Decision at para.13(a)-(c).
The Tribunal noted that Ms Ringo had an aunt in Sydney and a distant relative who lived in Perth who had asked Ms Ringo to live in and help look after the house.[26]
[26] CB 118, Tribunal Decision at paras.14-15.
Consideration of claims and evidence
The Tribunal identified the issue in the review as whether Ms Ringo met PIC 4020 as required by cl.572.224(a) of Schedule 2 of the Migration Regulations for the purposes of the grant of the Student Visa.[27]
[27] CB 118, Tribunal Decision at para.18.
The Tribunal also dealt with the law with respect to whether a document was bogus, or information which was false or misleading in a material particular, as follows:
20. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.97 of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in s.97 to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Batra v MIAC [2013] FCA 274.
21. The requirement in PIC 4020(1) not to provide a bogus document, or false and misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document was provided by the applicant knowingly or unwittingly. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged: Trivedi v MIBP [2014] FCAFC 42.[28]
[28] CB 119, Tribunal Decision at paras.20-21.
In the Tribunal Decision the Tribunal found that:
a)there was evidence that Ms Ringo had given, or caused to be given, to the Department, the Sponsorship Letter;[29]
[29] CB 119, Tribunal Decision at para.22.
b)it did not accept Ms Ringo’s explanation regarding why Jadith stated to an officer of the Department that she did not know anyone by Ms Ringo’s name. The Tribunal found that explanation to be “implausible”.[30] The Tribunal also considered it extremely unlikely that Ms Ringo’s explanation that Jadith had forgotten she had sponsored Ms Ringo was correct;[31]
c)if Jadith had provided bank statements intended to provide financial support to Ms Ringo she would have remembered it, and, while noting Ms Ringo’s explanation that the support from Jadith was not needed, concluded that the Sponsorship Letter was false and misleading in that “it certified that she [Jadith] would provide financial assistance to the amount of $25,000.00 when she did not intend to do so”.[32] Accordingly, the Tribunal was not satisfied that Ms Ringo had satisfied PIC 4020(1);[33]
d)it was not necessary for the Tribunal to conclude that Ms Ringo was aware that the information was purposely untrue in order for PIC 4020 to be engaged;[34]
e)it was not satisfied that there were:
i)compelling circumstances that affect the interests of Australia; or
ii)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen,
to warrant waiving the requirement of PIC 4020(1);[35] and
f)Ms Ringo did not satisfy cl.572.224 of the Migration Regulations and the Delegate’s Decision not to grant the Student Visa was affirmed.[36]
[30] CB 119, Tribunal Decision at para.23.
[31] CB 119, Tribunal Decision at para.24.
[32] CB 119-120, Tribunal Decision at para.26.
[33] CB 119-120, Tribunal Decision at paras.22 and 27-29.
[34] CB 119, Tribunal Decision at para.21.
[35] CB 120, Tribunal Decision at para.32.
[36] CB 120 at para.35.
Judicial Review Application – Ms Ringo’s application and submissions
Ms Ringo sets out three “grounds” of review in her Judicial Review Application, being:
1. my case should be reviewed because I believe MRT did not consider relevant evidence I provided for my case. I submitted a letter from my mum saying she’s aware Jadith agreed to support me and that it was true she was not in the country at the time I needed financial support (visa was attached). I also provided email conversation of my agent and immigration officer insisting me and Jadith are friends and she (Jadith) was willing and able to support me. She (my agency) also wrote a letter stating the same to MRT.
2. I am also strongly believe MRT mistakenly read Jadith signature. This is because Jadith signed the letter I provided to MRT same day with my applications in front of me and my agent at the park. (Me and my agent went to collect the letter from her) Jadith signature is distinctive and is clearly identifiable on the documents.
3. Failed to accord procedural fairness by prejudging my application based on the previous applicants and practice of my immigration agent.[37]
The Court will refer to these grounds as grounds 1, 2 and 3 respectively.
[37] Transcribed from the application without amendment.
Although Ms Ringo did not file any further affidavit or submissions in accordance with the Registrar’s order of 12 November 2014, at hearing she handed up a document headed “Legal Submissions”, the receipt of which by the Court was not objected to by the Minister.
Ms Ringo’s Legal Submissions assert four grounds of jurisdictional error, which, in summary, allege:
a)that the Tribunal Decision was unreasonable;
b)that the Tribunal failed to accord Ms Ringo procedural fairness;
c)that the Tribunal took into account and considered irrelevant information; and
d)that the Tribunal failed to consider relevant information.
The Court will refer to these grounds as grounds 4, 5, 6 and 7 respectively.
In relation to ground 4 Ms Ringo asserted that the Tribunal Decision was unreasonable in the sense described by the High Court in Minister for Immigration & Citizenship v Li & Anor[38] because:
a)the Sponsorship Letter and the copy of Jadith’s passport accompanying it had similar signatures in printed form, which were different to the cursive form of letter written to the Department by Jadith on 5 July 2012, and that Ms Ringo did not believe that Jadith appreciated the significance of the consistency of a signature as an identifying factor in Australia;
b)there is nothing in the Sponsorship Letter itself which leads to the conclusion that it was false in a material particular, that is, that Jadith did not at the time of providing the Sponsorship Letter intend to provide the support which she declared that she would provide;
c)the veracity of the statement of support in the Sponsorship Letter was supported by the bank statement and passport copies attached to the Sponsorship Letter;
d)the telephone conversation between an officer of the Department and Jadith on 4 July 2012, in which Jadith suggested that she had not given a bank statement to the applicant in support of her application and did not know the applicant, is false or wrong because the documentary evidence confirms that both bank statements and a passport were provided;
e)Jadith’s letter of 5 July 2012 to the Department explains how the information and the telephone call came to be wrong, that is that Jadith was nervous, did not speak good English and did not recognise Ms Ringo’s name when she received the phone call from the Department; and
f)“it is arguable that the Tribunal has come to the wrong conclusion on the evidence as to the veracity of the assurance of support. It is arguable that the telephone call does not provide a logical basis for concluding that the assurance in the letter (supported by its attachments) was false”.
[38] [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”).
In relation to ground 5, the alleged failure to accord Ms Ringo procedural fairness, the ground alleges that:
a)it was unfair to draw a conclusion based upon what Jadith and Ms Ringo’s agent had done in the past which had nothing to do with Ms Ringo, and which therefore denied her procedural fairness and constituted the considering of irrelevant information;
b)Ms Ringo was not aware that Jadith had sponsored students other than Ms Ringo until the Department raised the matter with her;
c)Ms Ringo had been denied procedural fairness because of the consideration by the Tribunal of information concerning the financial sponsorship of other persons, and the “serious concerns” expressed by an officer of the Department in relation thereto, which played a part in the Tribunal Decision to refuse to grant Ms Ringo the Student Visa;
d)Ms Ringo was not interviewed by the Department or the Tribunal in relation to the concerns arising with respect to the Sponsorship Letter;
e)Ms Ringo lived with her aunty and her school fees were fully paid and she did not work whilst studying, whereas the officer of the Department who referred information to the Tribunal, which was subject to s.375A of the Migration Act, noted that if the sponsor, Jadith, did not make the funds available Ms Ringo may be required to work in excess of the conditions of her Student Visa; and
f)Ms Ringo told the Tribunal that Jadith told Ms Ringo that she was willing and capable of supporting her, as stated in her 5 July 2012 letter.
In relation to ground 6 Ms Ringo asserts that the Tribunal relied on irrelevant information, namely:
a)the telephone conversation on 4 July 2012 between an officer of the Department and Jadith, which Ms Ringo asserts was wrong, and in relation to which she explained to the Tribunal that:
i)Jadith was learning English at the time;
ii)Jadith got nervous speaking on the phone as she was still learning English; and
iii)Jadith’s answers to the Departmental officer were “No” because she did not understand what was being said or the use of Ms Ringo’s name, namely “Sandra” rather than “Sandy”; and
b)information referred to the Tribunal, but subject to a non-disclosure certificate and notification under s.375A of the Migration Act in relation to certain details, which indicated that:
i)although the evidence of funds provided by Jadith was genuine, the Departmental officer had strong concerns about whether Ms Ringo might have direct access to the funds;
ii)the only acceptable evidence of the funds was of funds meant to cover the expenses of another person and that person’s partner whose visas have already been granted, and Jadith’s own expenses;
iii)the Departmental officer had strong concerns relating to the evidencing of funds by third parties who had no intention to make the funds available to Ms Ringo; and
iv)there were strong concerns about Ms Ringo’s access to the funds particularly taking into consideration the fact that Jadith was recycling her funds to support a number of students.
In relation to ground 7 Ms Ringo says that the Tribunal failed to consider relevant information, namely:
a)emails from her agent to the Department clarifying that Ms Ringo and Jadith were friends and that Jadith was willing to provide the assurance of support;
b)a letter from the agent to the Tribunal on 25 August 2014[39] to the same effect as in (a) above;
c)a letter from Ms Ringo’s mother confirming that she was not in Tanzania when Ms Ringo needed the bank statement, as confirmed by her visa label;[40]
d)Jadith’s letter of 5 July 2012 to the Tribunal supporting Ms Ringo’s case; and
e)that although Jadith’s name is misspelt due to a typographical error her signature in the document is written correctly,[41]
and complains that the above matters “did not carry any weight” in the Tribunal Decision.
Consideration
[39] CB 107.
[40] CB 98 and 99.
[41] CB 57 and 85.
Legislation and legislative instruments
Clause 572.224 of Schedule 2 to the Migration Regulations provides that an applicant for a student visa must satisfy PIC 4020.
PIC 4020 relevantly provided as follows at the time of the Tribunal Decision:
4020 (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Case law
In Trivedi & Ors v Minister for Immigration & Border Protection & Anor[42] the Full Court found as follows with respect to the character or quality of documents or information to which PIC 4020 is directed:
It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could not explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended and accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.[43]
and concluded that:
In my view, it is not necessary to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.[44]
[42] [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252 (“Trivedi”).
[43] Trivedi at [32]-[33] per Buchanan J (with whom Allsop CJ at [1] and Rangiah J at [56] agreed).
[44] Trivedi at [43] per Buchanan J.
Trivedi was applied in Kaur v Minister for Immigration & Border Protection[45] where the Federal Court highlighted the necessity to ask the question whether the information contained in the relevant letter obtained and provided, in that case, by the appellant to the Trades Recognition Authority, had the necessary quality of purposeful falsity of information.[46]
[45] [2014] FCA 1276 (“Kaur”).
[46] Kaur at [57] and [61] per Barker J.
In Patel v Minister for Immigration & Border Protection[47] the Full Court of the Federal Court was dealing with an appeal from this Court in relation to circumstances where the appellant had submitted a test form purporting to show test scores demonstrating English language proficiency which differed from a verified test form showing different test scores for English language proficiency which were below the requisite level for the grant of a visa. The question arose as to whether the submitted test form was a bogus document for the purposes of PIC 4020, and whether the Tribunal was required to make inquiries about the authenticity of the non-verified test form submitted by the appellant to the Tribunal.
[47] [2015] FCAFC 22 (“Patel”).
In Patel, Justice Buchanan, who delivered the primary judgment of the Full Court in Trivedi, summarised Trivedi as follows:
In Trivedi …, a Full Court decided that “an element of fraud or deception is necessary in order to attract the operation of PIC 4020” (see at [33]) and “that PIC 4020 is directed to information or documents which are purposely untrue” (see at [49]). It was also held that it was not necessary, in order to engage the operation of PIC 4020, that a visa applicant “was knowing or complicit in the deceptive character of the information … furnished” (see at [43], [45], [50], [52]).[48]
[48] Patel at [7] per Buchanan J.
In Patel the appellant’s position was that she was not responsible for any alteration or forgery of the submitted test form, and she was unable to explain the lack of conformity between the non-verified and verified test forms. But, as Justice Buchanan observed, whether the appellant was responsible for any alteration or forgery of the document “was not the test to be applied.”[49]
[49] Patel at [13] per Buchanan J.
In Patel, in relation to the consideration in that case by the Tribunal of the allegedly bogus document, it was observed that:
… it is clear that the … [Tribunal] gave direct consideration to whether the document was a bogus document within the meaning of s 97 of the Act and whether PIC 4020 was engaged in relation to it. There was no error in that analysis, whether by reference to the judgment of this Court in Trivedi or otherwise which discloses jurisdictional error.[50]
[50] Patel at [19] per Buchanan J.
The Full Court of the Federal Court also observed that a difficulty which confronted the argument of the appellant in Patel was that the Tribunal had explained the basis for its reasonable suspicion by reference to the online verification system for the test results and given the appellant an opportunity to respond to the content of both the verified and non-verified test record documents. It was said that given the limited facts presented by the appellant the state of reasonable satisfaction was a conclusion readily open to the Tribunal.[51] Justice Flick went on to observe that:
…. There was an obvious conflict. The conflict was brought to the attention of the Appellant and she was given an opportunity to respond. She has been afforded procedural fairness to respond to that material upon which the Tribunal conducted its “review”.[52]
[51] Patel at [36]-[37] per Flick J.
[52] Patel at [44] per Flick J.
In Patel it was also held that there was, in the circumstances, no duty which would have required the Tribunal to make further inquiries, there being no duty to make such inquiries unless an obvious inquiry might reveal a critical fact the existence of which is easily ascertained and which in some circumstances might supply a sufficient link to the outcome to constitute a failure to review.[53]
[53] Patel at [20]-[22] per Buchanan J and [39]-[46] per Flick J.
Ground 1
Ground 1 alleges a failure to consider relevant evidence, and specifically nominated documents. The ground cannot succeed in terms because the Tribunal specifically referred to the nominated documents, namely:
a)documents from Ms Ringo’s mother;[54]
b)a letter from her former agent dated 25 August 2014;[55] and
c)the email from her former agent.[56]
It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons,[57] and where the documents were identified by the decision-maker the Court should not readily draw the inference that they were overlooked.[58] In this case it is unnecessary to draw any inference as it is plain that the Tribunal had regard to each of the above documents in its consideration of Ms Ringo’s claims and evidence.[59]
[54] CB 115, Tribunal Decision at paras.6(e) and 13(a).
[55] CB 115, Tribunal Decision at para.6(e) and (f).
[56] CB 114, Tribunal Decision at para.4(d).
[57] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ (“Applicant WAEE”); Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [91] per McHugh, Gummow and Hayne JJ (“Yusuf”).
[58] Applicant WAEE at [47] per French, Sackville and Hely JJ.
[59] CB 119-120, Tribunal Decision at paras.22-26.
The task before the Tribunal was to determine whether the Sponsorship Letter was false or misleading in a material particular. The Tribunal found that:
a)the Sponsorship Letter certifying that Jadith would provide financial support to Ms Ringo when she did not intend to do so, was information which was both false and misleading; and
b)Ms Ringo had caused that letter to be provided to the Department.
Insofar as ground 1 alleges that the Tribunal fell into jurisdictional error by not preferring Ms Ringo’s explanations, it cannot be sustained. The findings of fact made by the Tribunal were open to it on the evidence. The Court cannot review the merits of the Tribunal Decision.[60]
[60] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
For the above reasons, ground 1 fails.
Ground 2
Ground 2 relates to the veracity of the signatures on various documents.
The strong belief of Ms Ringo that the Tribunal mistakenly read Jadith’s signature on documents is irrelevant. It is for the Tribunal to be satisfied about matters, not Ms Ringo.[61]
[61] Migration Act, s.65.
In circumstances where there were before the Tribunal different versions of Jadith’s signature[62] (and where the Sponsorship Letter was originally unsigned) it was for the Tribunal to draw factual conclusions with respect to the nature, status or veracity of the signatures, or the lack of a signature, on a document or documents. For this Court to seek to draw different factual conclusions would be to engage in impermissible merits review, not judicial review, contrary to established principles.[63] There is a boundary between merits review and judicial review which ought not to be crossed.[64]
[62] See, for example, CB 40 and 85.
[63] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[64] Zentai v Honourable Brendan O’Connor & Ors (No. 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J, followed in McVey v Minister for Immigration & Anor [2012] FMCA 924; (2012) 269 FLR 379 at [30] per Lucev FM.
At hearing, the Court rejected the tender by Ms Ringo of further documents purporting to show yet another version of Ms Ringo’s signature. The Court did so because the documents sought to be tendered contained information which was not before the Tribunal, and was, for reasons explained above, in any event, a matter of fact to be dealt with by the Tribunal.
For the above reasons, ground 2 fails.
Ground 3
Ground 3 alleges actual bias by prejudgment on the part of the Tribunal.
Actual bias can be said to exist where a decision-maker had a pre-existing state of mind which disabled him or her from undertaking, or rendered him or her unwilling to undertake, a proper evaluation of the material relevant to the decision to be made.[65] Ordinarily a party would need to show some conduct on the part of the decision-maker, apart from the decision-maker’s expression of the decision-maker’s reasons, which would indicate that the decision-maker has been guilty of pre-judgment or was in any way biased.[66]
[65] Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421, (2001) 65 ALD 1 at [35] and [72] per Gleeson CJ and Gummow J.
[66] SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44] per Tamberlin, Mansfield and Jacobson JJ.
It cannot be said that the Tribunal did not re-examine Ms Ringo’s claims or that it prejudged those claims.[67] The Tribunal identified material that it found relevant to its reasoning and gave it appropriate weight,[68] and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal Decision.[69]
[67] See CB 119-120, Tribunal Decision at paras.22-34.
[68] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.
[69] VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; (2003) 77 ALD 23 at [21] per Kenny J.
The evidence before the Court does not provide any support for the claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith. Ms Ringo has made no attempt to comply with the requirement that a serious allegation of bias be properly proven. Moreover, the Tribunal expressly raised with Ms Ringo the Delegate’s Decision and the information that indicated that Jadith had provided a sponsorship letter for another visa applicant. Further, the Tribunal Decision discloses that its conclusions that the Sponsorship Letter contained information false or misleading in a material particular arose primarily from the circumstances of the specific contents of the Sponsorship Letter and Jadith’s conversation with a Departmental officer.[70] But, even if, as asserted by Ms Ringo, the Tribunal Decision did have regard to the Delegate’s Decision and the information that Jadith had provided a sponsorship letter in relation to another student visa applicant whose education agent was also Ms Ringo’s education agent, that does not evince bias on the Tribunal. Rather, it demonstrates consideration of information which is relevant to a consideration of whether the Sponsorship Letter contained information which was false or misleading in a material particular, namely Jadith’s preparedness, capacity and willingness to provide financial support to Ms Ringo in the event that that financial support was required.
[70] CB 119, Tribunal Decision at paras.23 and 26.
For the above reasons, ground 3 fails.
Ground 4
Ground 4 asserts unreasonableness, in a Li sense, and illogicality in the Tribunal Decision.
Unreasonableness, in the sense referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[71] has traditionally been viewed as an abuse of power by the repository of the power, and is an extremely confined doctrine requiring, for a decision to be held invalid, a purported exercise of power so unreasonable that no reasonable repository of the power could have made the decision concerned.[72] More recently, it has been held that in order to determine if the exercise of a statutory discretionary power is unreasonable in a Wednesbury sense, consideration is required of whether the dominant reason for the decision is outside the scope and purpose of the enactment or the policy considerations which legitimately form the exercise of the relevant discretionary power, but the exercise of the power must still be in accordance with, and according to, the law.[73]
[71] [1948] 1 KB 223 (“Wednesbury”).
[72] Attorney-General for the State of New South Wales v Quin [1990] HCA 21, (1990) 170 CLR 1, (1990) 64 ALJR 327, 33 IR 263, 93 ALR 1 at 35 per Brennan CJ, applied by this Court in Mushtaq v Minister for Immigration & Anor [2013] FCCA 198 at [31]-[32] per Judge F Turner.
[73] Li at [26] per French CJ and [47] per Hayne, Kiefel and Bell JJ.
As with ground 1, Ms Ringo’s belief concerning issues associated with Jadith’s signature is irrelevant. Where there were different forms of the signature on different documents the Tribunal was entitled to attach weight and draw conclusions in relation to those signatures as it saw fit. The assertion by Ms Ringo, that Jadith did not appreciate the significance of the consistency of a signature as an identifying factor in Australia is not only unsupported by the evidence but, for the reasons outlined above, both in relation to this ground and ground 1, a matter of fact for the Tribunal to determine.
In relation to the Sponsorship Letter the fact that there was nothing on its face which might lead to the conclusion that it was false or misleading in a material particular is not necessarily surprising. Documents which are bogus, in the sense of being either true counterfeits, or which contain information which is either false or misleading in a material particular, will not necessarily appear to be counterfeit or to contain false or misleading information in a material particular on their face. Were they to do so it might negate any nefarious purpose for which the documents may have been created. And so it was in this case, the Tribunal finding that the fact that the Sponsorship Letter contained information which was false or misleading in a material particular, was to be deduced by reason of a conversation with Jadith by a Departmental officer. That conversation, coming just a week after Jadith had provided the Sponsorship Letter, a letter which set out Ms Ringo’s full name and which evinced an intention to provide some $25,000 of financial support if required, contained information which Jadith denied knowledge of in her discussion with the Departmental officer. Notwithstanding the subsequent evidence submitted by Ms Ringo, to which the Tribunal had regard, and which sought to explain Jadith’s conduct when interviewed on the telephone by the Departmental officer, the content of the conversation with the Departmental officer provided a sufficient factual basis (albeit, it must be said, a narrow basis) for the Tribunal to conclude that there was no intention on Jadith’s behalf to actually provide financial assistance to Ms Ringo. That conclusion was drawn from an assessment and weighing of the evidence by the Tribunal. Where the Tribunal has assessed and weighed the evidence it is not for this Court to re-exercise the Tribunal’s fact-finding power. To do so would be merits review not judicial review, contrary to established principles.[74]
[74] See fnn.63 and 64 above.
The Court also observes that the Tribunal was not obliged to accept all or any part of the evidence given by, or on behalf of, Ms Ringo.[75] The Tribunal’s consideration of the Sponsorship Letter, and the evidence in relation to it, was entirely within the scope and purpose of the Migration Act, and a legitimate and not unreasonable exercise of the relevant discretionary power. For similar reasons the fact that the Sponsorship Letter was supported by a bank statement and passport copies does not assist Mr Ringo’s argument. Like the Sponsorship Letter it can readily be inferred from the Tribunal Decision that the bank statement and passport copies were intended to convey an impression of support in circumstances where it was not intended that it be forthcoming. Relevantly the Tribunal remarked that “if Jadith really intended to provide funds to the applicant, she would have remembered that she had given her bank statement to her and she would have remembered that she had provided the applicant with an assurance of support.”[76] And, as explained above, Jadith’s subsequent explanation contained in her letter of 5 July 2012 of her earlier conduct in the telephone interview with the Departmental officer was a matter to be assessed by the Tribunal having regard to all of the evidence. The assessing and weighing of that evidence was a matter for the Tribunal, and its preference for the evidence of what was said by Jadith to the Departmental officer, and the consequent conclusion that there was not a real intention to provide financial support to Ms Ringo, was a conclusion which was reasonably open to the Tribunal, and not unreasonable in a Li sense.
[75] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265 at 278 per Beaumont J.
[76] CB 119, Tribunal Decision at para.26.
In the Court’s view it cannot be said, contrary to Ms Ringo’s assertion, that Jadith’s telephone interview with the Departmental officer, and the evidence of what she said, does not provide a logical basis for concluding that the assurance of financial support was false. As the Court has observed above, the conclusion reached by the Tribunal in this respect was one which was open on the evidence, and which can be logically supported by the evidence of Jadith’s conversation with the Departmental officer. The Tribunal’s conclusion was therefore, for all of the above reasons, neither unreasonable in a Li sense, nor illogical in the sense set out by the High Court in Minister for Immigration & Citizenship v SZMDS & Anor[77] where the plurality majority Justices said as follows:
… “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65 [of the Migration Act], is one at which no rational or logical decision maker could arrive on the same evidence.[78]
and
… A decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there was no logical connection between the evidence and the inferences or conclusions drawn.[79]
[77] [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367, (2010) 115 ALD 248 (“SZMDS”).
[78] SZMDS at [130] per Crennan and Bell JJ.
[79] SZMDS at [135] per Crennan and Bell JJ.
In the Court’s view it cannot be said that, having regard to the evidence of the telephone conversation between Jadith and the Departmental officer, that a logical person might not reach the same decision on the material before the Tribunal. There was more than one conclusion open on the evidence before the Tribunal in relation to whether or not the Sponsorship Letter contained information which was false or misleading in a material particular. There are also logical connections between the evidence given by Jadith to the Departmental officer and the conclusion ultimately drawn by the Tribunal that the Sponsorship Letter contained information which was false or misleading in a material particular, namely the assurance that Jadith would provide financial assistance when she did not intend to do so.
For the above reasons, ground 4 fails.
Ground 5
This ground alleges a denial of procedural fairness and the consideration of irrelevant information by the Tribunal.
In determining that the Sponsorship Letter contained information which was false or misleading in a material particular, it was not unfair for the Tribunal to refer to evidence of what Jadith and Ms Ringo’s agent had done in the past in relation to similar letter of support and sponsorship for student visa applicants. Consideration of such information was obviously relevant to a determination by the Tribunal of whether there was a possibility that Jadith was in a position to provide financial support to more than one person, or whether she was simply engaging in a process to provide the form, but not the substance, required to fulfil the visa requirements for Ms Ringo’s Student Visa. That information was therefore relevant information for the Tribunal’s purposes. It was information which the Tribunal was aware of, and which it put to Ms Ringo in the course of the Tribunal hearing.[80] In that regard, it cannot be said that if the information as to Jadith’s previous conduct in relation to sponsorship letters for other student visa applications, in conjunction with Ms Ringo’s agent, was relevant, that it was not put to Ms Ringo for comment, and she was therefore not denied procedural fairness in relation to that information. Therefore, assuming for present purposes that the fact that the Tribunal referred to the above matters means that they were part of its consideration in concluding that the Sponsorship Letter was information which was false or misleading in a material particular, there was no denial of procedural fairness.
[80] CB 117, Tribunal Decision at para.10.
The Court notes, however, that the basis for the conclusion by the Tribunal that the applicant had given, or caused to be given information that was false or misleading in a material particular to the Department, did not expressly rely upon the conduct of Jadith and Ms Ringo’s agent in relation to the other student visa applications for which Jadith was sponsor.
The fact that Ms Ringo lived with her aunty, had her school fees fully paid and did not work while studying is irrelevant to the question of whether or not the Sponsorship Letter was information which was false or misleading in a material particular. The relevant issue here was whether the actual document, namely the Sponsorship Letter, was false or misleading in a material particular, and not whether a Departmental officer had made observations with respect to the availability of funds to Ms Ringo and the possibility that she may be required to work in contravention of the conditions of her Student Visa. In any event, the latter was not a basis for the Tribunal Decision in respect of whether or not the Sponsorship Letter was false or misleading information in a material particular.
For reasons otherwise set out above the fact that Ms Ringo told the Tribunal that Jadith told Ms Ringo that she was willing and capable of supporting her, as stated in her 5 July 2012 letter, does not establish a want of procedural fairness by the Tribunal, as the Tribunal weighed that evidence in reaching its conclusion with respect to whether the Sponsorship Letter was information which was false or misleading in a material particular.
For the above reasons, ground 5 fails.
Ground 6
Ground 6 asserts that the Tribunal relied on irrelevant information.
For reasons otherwise set out above, the telephone conversation between Jadith and the Departmental officer (which Ms Ringo asserts was wrong in relation to the answers given by Jadith) was not irrelevant information. Likewise, the information referred to the Tribunal, and subject to a notice under s.375A of the Migration Act was, for reasons given above, not irrelevant information.
For the above reasons, ground 6 fails.
Ground 7
Ground 7 alleges that the Tribunal failed to consider relevant information.
There is no substance to ground 7. At paragraphs 24 and 25 of the Tribunal Decision the Tribunal adverts to the information contained in the emails from Ms Ringo’s agent concerning the friendship between Ms Ringo and Jadith, that Jadith was willing to provide an assurance of support, and the agent’s letter to the same effect.[81] The letter from Ms Ringo’s mother does not advance the matter one way or the other in terms of a determination as to whether the Sponsorship Letter was information which was false or misleading in a material particular, but it is obviously information which was before the Tribunal and considered by it.[82] Jadith’s letter of 5 July 2012 to the Tribunal supporting Ms Ringo’s case is also information which has evidently been considered by the Tribunal when paragraphs 24 and 25 of the Tribunal Decision[83] are read as a whole.
[81] CB 119, Tribunal Decision at paras.24-25.
[82] CB 115, Tribunal Decision at para.6(e) and CB 117-118, Tribunal Decision at para.13(a).
[83] CB 119.
Any misspelling of Jadith’s name due to a typographical error in her signature is not relevant to the question of whether or not the Sponsorship Letter was or contained information which was false and misleading in a material particular.
For reasons otherwise set out above the question of what weight to attach to evidence and information was a matter for the Tribunal. In any event, it is not correct to assert that the above matters did not carry any weight with the Tribunal. The Tribunal clearly assessed them, and gave more weight to the evidence of Jadith’s conversation with the Departmental officer, in arriving at its conclusion that the Sponsorship Letter was information which was false or misleading in a material particular.
For the above reasons ground 7 fails.
Compelling, or compassionate or compelling, circumstances
For the sake of completeness, the Court notes that there was no error by the Tribunal in determining that there were no compelling, or compassionate or compelling, circumstances for the purposes of PIC 4020(4) as there was no evidence that there was anything in the circumstances of this case that affected the interests of Australia,[84] or that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.[85]
[84] PIC 4020(4)(a), and see in relation to the “interests of Australia” Kandel v Minister for Immigration & Anor [2014] FCCA 1479 at [22] per Judge Lucev.
[85] PIC 4020(4)(b).
Conclusion and orders
Each of the grounds of the Judicial Review Application fails, for the reasons set out above.
The Tribunal:
a)considered the correct issue;
b)correctly identified the relevant law;
c)reached factual conclusions open to it on the evidence, including principally that the Sponsorship Letter was information which was false and misleading at the time it was given, and was purposely so given by its author Jadith, and which was relevant to the criteria to be considered in relation to financial support for the grant of the Student Visa to Ms Ringo (and in respect of which the Court notes that it is immaterial whether Ms Ringo knew the information was false or misleading or not);[86]
d)was therefore satisfied that the criteria for the grant of the Student Visa had not been made out;[87] and
e)made a decision open to it on the evidence and within the scope of its powers under the Migration Act.
[86] PIC 4020(3); Trivedi at [43] per Buchanan J; Patel at [7] and [13] per Buchanan J.
[87] Migration Act, s.65.
The Court cannot review the merits of the Tribunals Decision. The Tribunal Decision exhibits no bias or want of procedural fairness. There is no jurisdictional error in the Tribunal Decision.[88] It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
[88] Yusuf at [82] per McHugh, Gummow and Hayne JJ.
The Court will hear the parties as to costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 March 2015
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