SZCGV & Anor v Minister for Immigration
[2006] FMCA 1123
•5 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCGV & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1123 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – Refugee Review Tribunal decision previously reviewed by the High Court, Federal Court and the Federal Magistrates Court – no jurisdictional error found – application for judicial review dismissed as an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.10(c) High Court Rules 2004, rr.41.10.4, 41.10.05 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 474, 477, 483A |
| Applicant A321 of 2002 v Minister for Immigration [2004] FCA 306 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Kosi v Minister for Immigration [2003] FMCA 340 Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 NALEv Minister for Immigration [2003] FMCA 366 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 SAAP v Minister for Immigration [2005] HCA 24 Second Life Décor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78 SZBCU v Minister for Immigration [2005] FMCA 29 SZBCU v Minister for Immigration [2005] FCA 346 SZBJM v Minister for Immigration [2004] FCA 404 SZBML v Minister for Immigration [2004] FMCA 431 SZBML v Minister for Immigration [2004] FCA 1194 SZCAT v Minister for Immigration [2004] FCA 1549 SZCIA v Minister for Immigration [2006] FCA 238 SZCTT v Minister for Immigration [2004] FMCA 498 SZCTT v Minister for Immigration [2004] FCA 1746 SZCGV v Minister for Immigration [2004] FMCA 865 SZCGV v Minister for Immigration [2004] FCA 1730 SZCGV v Minister for Immigration [2005] HCA Trans 350 SZEZI v Minister for Immigration [2005] FCA 1195 SZGMZ v Minister for Immigration [2005] FMCA 1549 Walton v Gardiner (1993) 177 CLR 378 |
| Applicants: | SZCGV, SZCGW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1543 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Gujarati interpreter |
| Advocate for the Respondents: | Mr B Cramer |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read Minister for Immigration and Multicultural Affairs.
The application be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) as being frivolous, vexatious and an abuse of process.
The applicants may not institute any further proceedings in this Court seeking review of the decision of the Tribunal made on 17 November 2003 and handed down on 10 December 2003 without the applicant first obtaining leave of this Court pursuant to rule 13.11(3)(b) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of and incidental to this application on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1543 of 2005
| SZCGV, SZCGW |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
By notice of objection to competency filed on 23 June 2005, the first respondent objects to the jurisdiction of this Court to hear the applicants’ application on the basis that:
a)Section 477(1)(A) of the Act relevantly provides that an application of the Federal Magistrates Court under s.483A of the Migration Act 1958 (Cth) (“the Act”), in respect of a privative clause decision for which the Court’s jurisdiction is not excluded by s.476, must be made to the Court within 28 days of notification of the decision.
b)The decision is a “privative clause” decision as that term is defined in s.474(2) of the Act.
c)The application for an order of review has been made under s.483A of the Act.
d)The decision was notified to the applicants on 19 December 2003.
e)The application to the Court was made on 15 June 2005, which is not within 28 days of the date of the notification of the decision.
In the alternative, by an amended notice of motion filed in Court on 3 August 2006, the first respondent seeks the following orders that:
a)The proceedings be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 on the basis that:
i)The proceeding has no reasonable prospects of success; and
ii)The proceeding is frivolous or vexatious; or
iii)The proceeding is otherwise an abuse of process.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on
15 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on
17 November 2003 and handed down on 10 December 2003, affirming a decision of the delegate of the first respondent made on 28 May 2003, refusing to grant the applicants a protection (Class XA) visa. The applicants seek unstated relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZCGV” (applicant husband) and “SZCGW” (applicant wife).
For the purposes of this notice of objection to competency and notice of motion, the first respondent tendered and applied for an affidavit of Hayley Anne Blackman, affirmed on 29 June 2006 (“affidavit of Ms Blackman”) to be admitted into evidence.
The applicants have not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Dr Irene O’Connell, reference N03/46584 provides the following background material. The applicants are husband and wife. They claim to be citizens of India. They arrived in Australia on 31 March 2003. On 28 April 2003, they lodged an application for protection (Class XA) visa with the Department of Immigration under the Act. On 28 May 2003, a delegate of the Minister refused to grant a protection visa and on 10 June 2003, the applicants applied to the Tribunal for review of the decision. (Court Book (“CB”) 78)
In the applicants’ protection visa application, the applicant husband states that he is a 26 year old married man. He states that his ethnic group is Patel and that his religion is Hindu. He states that his occupation prior to arrival in Australia was that of a shop owner and goldsmith. He claims that he has 15 years of education and states that he holds a degree issued in 1998. The applicant wife states that she is from the same ethnic group, same religion and that her occupation prior to coming to Australia was that of a housewife. She claims she has completed 15 years of education and holds a certification from a commerce college which was granted in 1999. (CB 81)
The applicant husband states that he and his wife left India because of their fear of persecution due to their different political opinion and their ethnic group. The applicant husband claims that he worked and campaigned for upliftment and progress of small business in the district of Mansa, Gujarat under the banner of City Business Corporation. In 2000, when the Gujarat train tragedy incited Hindus against Muslims in riots across the entire nation, the worst affected area was Gujarat. The applicant husband’s shop was destroyed and looted by Muslim extremist groups supported by the Muslim League Party. He claims that his family were attacked by Muslim extremists because of their Hindu background and he was beaten severely (to the point of being near death) and received threats that if he did not permanently leave the area that he and his entire family would be killed. After the Hindu/Muslim riots settled down in the State, the applicant husband tried to re-establish his business but could not succeed as there was another attack while he was at his shop in May 2002. Muslim extremist groups with knives, guns, rods and chains beat the applicant husband, forcing him to shut the door of his shop and not to open it again. He claims he was also threatened with dire consequences should he report the matter to the police. The applicant husband claims that his business was completely ruined and that he suffered heavy financial loss.
The applicant husband states that if he returned to India, he feared mistreatment at the hands of Muslim extremists. The applicant husband claims he reported the matters to the police but no proper action was taken against the Muslim extremists and their mafia group, who also started asking for payment of ransom. (CB 81-82)
Tribunal’s Findings and Reasons
The applicants failed to attend the hearing scheduled by the Tribunal. The Tribunal concluded that it was unable to be satisfied on the evidence before it that the applicants had a well-founded fear of persecution. It noted the generality and the vagueness of the applicants' claims and noted that in the light of the country information quoted in relation to the political/religious violence in Gujarat (the UK home/office assessment for India as at October 2003). It would have wished to explore with the applicants the circumstances surrounding the destruction of the applicant husband’s shop and the possibilities of relocation within India with the applicants.
Litigation History
The affidavit of Ms Blackman provides a convenient summary of the litigation history of the applicants, which I have adopted and reproduced below:
2.On 2 June 2003, the applicant applied to the Second Respondent for review of a decision made by a delegate of the First Respondent on 28 May 2003. On 10 December 2003, the Second Respondent handed down its decision.
3.On 22 December 2003 the applicant applied to the Federal Magistrates Court of Australia for a review of the RRT Decision. Federal Magistrate Raphael dismissed the application on 5 November 2004.
4.On 23 November 2004 the applicant filed an application for Leave to Appeal from the orders made by Raphael FM to the Federal Court of Australia. On 21 December 2004, Justice Jacobson dismissed the application for leave to appeal.
5.On 18 January 2005 the applicant filed an application for special leave to appeal from the orders made by Jacobson J to the High Court of Australia (High Court proceedings S31/2005). On 15 February 2005 the application was deemed to be abandoned in accordance with High Court Rule 41.10.4.
6.On 21 December 2004 the applicant filed a second application for special leave to appeal from the orders made by Jacobson J to the High Court of Australia (High Court Proceedings S83/2005). On 26 May 2005 the application was dismissed by their Honours Justices Hayne and Callinan for non-appearance in accordance with High Court Rule 41.10.05.
Reasons
Pursuant to s.477(1)(A) of the Act, the application for judicial review must be filed within 28 days of notification of the relevant Tribunal decision. The present application was filed on 15 June 2005 and seeks review of the Tribunal decision made on 17 November 2003 and handed down on 10 December 2003, which is a period of approximately 18 months. In the interim period an application for review of the decision of the Tribunal had been filed in the Federal Magistrates Court before His Honour Raphael FM; in the Federal Court before His Honour Jacobson J; and a special leave application was made to the High Court. The first special leave application was deemed to be abandoned in accordance with the High Court Rules 2004 r.41.10.4. A second special leave application was dismissed by Their Honours Hayne and Callinan JJ for non-appearance in accordance with the High Court Rules 2004 r.41.10.05.
The notice of objection to competency raises the issue of whether the decision of the Tribunal is a privative clause decision as defined under s.474 of the Act. If the respondent succeeds in this contention, then the Court would be barred in giving the relief sought by the applicants, and the applicants’ present application would be out of time under s.477(1A) of the Act. The respondent’s objection to competency would succeed if, applying Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, the Court held that the Tribunal decision was not affected by any jurisdictional error. In the original proceedings, this matter was before His Honour Raphael FM contained in decision SZCGV v Minister for Immigration [2004] FMCA 865. At [4], His Honour found:
As the applicant has made no reasonable attempt to provide particulars of jurisdictional error, as opposed to providing particulars of factual matters which the court is not allowed to take into account, and noting the grounds upon which the Tribunal came to its original decision, I am of the view that it is not in the interests of the applicant or the administration of justice that this matter be allowed to continue.
The applicant exercised his rights on appeal in the Federal Court of Australia. In SZCGV v Minister for Immigration [2004] FCA 1730 His Honour Jacobson J dismissed the application on 21 December 2004 and concluded at [2] and [3]:
Ms Howey, who appears for the respondent, asks me to dismiss the application by reason of the failure of the applicant to appear before me today when the matter was called on for hearing. I am satisfied that the applicant was notified of today's hearing. The court file contains a copy of a letter dated 7 December 2004 addressed to the applicant at the address stated by the applicant in his application for leave to appeal and for an extension of time. The copy of the letter on the court file contains a notation indicating that it was posted to the applicant and I am therefore satisfied that the applicant was notified, as stated in the letter, that the application was listed for hearing before me at 11.00 am today.
I am also satisfied that I have power to make the order sought by Ms Howey. I dealt with a similar application in SZDJA v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1499. The power to make the order is, in my view, found in section 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) or, alternatively, Order 35A rule 2(1)(f) or rule 3(1)(a) of the Federal Court Rules.
The applicant husband then exercised their right to seek special leave of appeal to the High Court and filed an application on 18 January 2005. However, due to the applicant husband’s failure to comply with the relevant provisions of r.41 of the High Court Rules 2004 the application for special leave to appeal was deemed to have been abandoned on 15 February 2005. The applicant husband filed a further application which is proceeding S83 of 2005, which was heard by Their Honours Hayne and Callinan JJ. His Honour Hayne J in SZCGV v Minister for Immigration [2005] HCA Trans 350 made the following observation:
The applicant seeks special leave to appeal from a decision of the Federal Court. When the applicant’s application for leave to appeal and an extension of time to file and serve a notice of appeal came on for hearing before that Court there was no appearance by, or for the applicant. In those circumstances, the Federal Court dismissed the applicant’s application. It is unnecessary to consider whether an appeal to this Court would be competent (Federal Court of Australia Act 1976 (Cth), s 33(2)). The applicant’s written case in this Court discloses no error on the part of the Federal Court. Accordingly, the application should be dismissed.
No error has been found in the Tribunal’s decision and the applicant has not shown any reason why this Court should not be bound by those decisions, such as the time limit under s.477(1A) of the Act.
I am guided by the decision of Raphael FM in SZBCU v Minister for Immigration [2005] FMCA 29 at [20] where His Honour found:
Having considered the terms of the Tribunal's decision and noting the failure of the applicant to attend I cannot see how the Tribunal has fallen into jurisdictional error when it concluded that it had not obtained the degree of satisfaction required by the Act in order to hold that this applicant was a person to whom Australia held protection obligations.
That decision was upheld by His Honour Sackville J in SZBCU v Minister for Immigration [2005] FCA 346 at [19] where His Honour found:
To the extent that the appellant complains about adverse factual findings, these complaints cannot establish an error of law, let alone a jurisdictional error. If the RRT did make any errors of fact (a proposition which has not been made out), they could fairly be attributed to the appellant’s failure to appear before the RRT.
I am further guided by the decisions of Driver FM in SZBML v Minister for Immigration [2004] FMCA 431 and SZCTT v Minister for Immigration [2004] FMCA 498, which dismissed applications for review filed in similar circumstances as incompetent. Both these decisions were upheld on appeal: SZBML v Minister for Immigration [2004] FCA 1194 per Bennett J and SZCTT v Minister for Immigration [2004] FCA 1746 per Conti J.
In cases where the issue of whether a decision of the Tribunal is a privative clause decision for the purposes and proceedings in this Court (and that issue has been conclusively determined by previous proceedings and affirmed on appeal to the Federal Court), this Court is bound by the decisions of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach was adopted by Driver FM and was upheld on appeal in SZCAT v Minister for Immigration [2004] FCA 1549 by His Honour Whitlam J.
The Tribunal reached the conclusion that it did as set out in its decision and there is no basis on which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the respondent’s objection to competency should be upheld.
In respect of the abuse of process raised by the first respondent in the amended notice of motion, it is submitted that the application should be dismissed summarily pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). Rule 13.10 enables the Court to dismiss a proceeding summarily if it is frivolous or vexatious or otherwise an abuse of process. The current application filed in this Court is plainly an attempt to re-litigate a case already disposed of and should be dismissed as an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ:
…Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings…
The reasoning of His Honour Smith FM in SZGMZ v Minister for Immigration [2005] FMCA 1549 at [22] – [26] clearly addresses and articulates the reasons, as His Honour put it, why an application such as the present is an abuse of process and has no prospects of success in obtaining the relief it seeks. This application is a persistent attempt by the applicant to bring an unmeritorious application to the Court. I am also guided by the decision of His Honour Driver FM in NALEv Minister for Immigration [2003] FMCA 366 where the reinvigoration of proceedings may have been pursued to extend the applicant’s stay in this country. Reference is also made in NALEv Minister for Immigration to another decision of Driver FM in Kosi v Minister for Immigration [2003] FMCA 340 at [18]:
…It would be an abuse of the Court's process to file an application for review simply for the purpose of extending the period of one's stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances there is potential for the Court's process to be abused by an applicant whose only purpose is to take advantage of that delay…
The respondent’s solicitor also referred the Court to Applicant A321 of 2002 v Minister for Immigration [2004] FCA 306 at [19] where His Honour Wilcox J found that re-litigating the same application can be an abuse of process. His Honour observed that:
If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393.
Similarly, in SZBJM v Minister for Immigration [2004] FCA 404 His Honour Madgwick J at [29] to [30] stated:
Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way, with legal advice, to a Full Court of this Court, and thereafter, it seems, without such advice to the High Court, it is high time that all this litigation was put to an end.
The proceedings, being groundless on their face, are an abuse of process…
Mr Cramer, for the respondents, submitted a proceeding is also an abuse of process, if regardless of its merits or prospects of success, it is brought as a means of obtaining some advantage for which the proceedings is not designed or some collateral advantage beyond what the law offers: Second Life Décor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78. Mr Cramer submits that it can be inferred from the litigation history above that the application has been made for the purposes of the delay to extend the applicant’s period of lawful stay in Australia: NALEv Minister for Immigration.
Mr Cramer submits that the present application is an abuse of process because the proceedings are groundless and the applicant has already previously litigated in the Federal Magistrates Court and appealed to the Federal Court and the High Court and those applications were dismissed. Therefore, the first respondent contends that the application should be dismissed as an abuse of process pursuant to r.13.10 of the Rules for the reasons given above.
In respect of the claim contained in the amended notice of motion that the proceedings have no reasonable prospects of success, as there is no grounds of review arising from the Tribunal decision, Mr Cramer submits that the amended application filed in these proceedings on
18 August 2005 makes several claims including:
a)That the Tribunal did not consider the applicant husband’s chance of persecution on the basis of his political opinion;
b)That the Tribunal’s reasoning was not logical;
c)That the hearing invitation was not served on the applicants properly;
d)That the applicant husband does not speak, read or write English and asked the Court to hear him on the merits of his refugee claim; and
e)The decision in SAAP v Minister for Immigration is referred to but no particulars in relation to that case reference are provided.
Mr Cramer submits that claims in paragraphs 28(a) and (b) of these Reasons are not sustainable because the Tribunal is not required to make findings of facts about each of the factual claims made by the applicants in the circumstances where the reasons for the decision is a lack of satisfaction: Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [17]. The claim in paragraph 28(c) of these Reasons is not sustainable because the applicants’ migration agent responded to the Tribunal’s invitation to a hearing which was sent to both the applicants and the applicants’ agent that he did not wish to attend the Tribunal hearing. (CB 70-73) The claim in paragraph 28(d) of these Reasons is not capable of amounting to jurisdictional error.
Mr Cramer submits that in respect of paragraph 28(d) of these Reasons, it may be assumed that the applicants are making a general claim that the Tribunal breached s.424A of the Act by not providing him with particulars of any information that the Tribunal considered would be the reason, or a part of the reason for affirming the delegate’s decision. The reason for the Tribunal’s decision was that it was not satisfied on the evidence before it that the applicants had a well-founded fear of persecution. There is no “information” that was part of the reasons for its decision and therefore there is no obligation on the Tribunal to put any information to the applicants in a s.424A letter. The Federal Court has affirmed that the Tribunal’s inability to be satisfied about the truth of an applicant’s claim because of the subjectivity of perceived inadequacies in the information before it is not information for the purposes of s.424A(1) of the Act: SZEZI v Minister for Immigration [2005] FCA 1195 at [29].
Mr Cramer referred the Court to a recent decision in SZCIA v Minister for Immigration [2006] FCA 238 at [12] where His Honour Allsop J said:
In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain…
Mr Cramer submits that His Honour Allsop J’s analysis is apposite to the present case.
In the matter before this Court in the Tribunal’s findings and reasons, the Tribunal concluded:
The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the Applicants are in genuine fear of persecution and that there is a real chance that they will be persecuted on their return to India. (CB 84.2)
On the limited information available in the protection visa application the Tribunal cannot be satisfied about the Applicants’ claim that they were persecuted by Muslim extremists and that they were, and are, unable to avail themselves of protection within India. (emphasis added) (CB 84.6)
Conclusion
The applicants appeared at the hearing as self-represented litigants, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186.
Mr Cramer, appearing for the respondents assisted the Court with detailed written submissions which were supplemented by comprehensive oral submissions. The applicants were relying on an amended application that had been prepared for them. Unfortunately, the applicants had no real comprehension of the issues that it raised. The amended application does not rectify the deficiencies of the original pleading. The applicants appear to have obtained some assistance in filing an amended application, but unfortunately that document does not achieve that objective.
For the reasons set out above, I consider the present application is an abuse of process and it is appropriate to dismiss it summarily.
I propose to make an order sought by the first respondent. I also consider that I should give direction to the Court registry that it decline any further application from the applicants concerning any aspects of the decision-making process on their protection visa application. If the applicants can demonstrate an issue affecting their current entitlement, which has not been decided against them in previous litigation and which requires adjudication about the decision-making, then they would be able to commence another proceeding. However, the applicants will have to show a controversy which properly requires the attention of this Court. Regretfully, the applicants have obtained the application and the amended application without clearly understanding what they are endeavouring to achieve before this Court. The applicant husband has also on a number of occasions failed to demonstrate his real commitment to pursuing these proceedings when they do in fact come before the Court. I have commented on these circumstances above.
I am satisfied that an order for costs should be made in this matter.
I order that the applicants pay the first respondent’s costs and disbursements of and incidental to this application on an indemnity basis.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 September 2006
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