SZHWD v Minister for Immigration
[2007] FMCA 1614
•4 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHWD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1614 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – adverse credibility finding – s.91R(2) of the Act did not arise for the Tribunal’s consideration – weight accorded independent country information a matter for the Tribunal – s.424A(1) of the Act not enlivened – Tribunal did not adopt incorrect approach in assessing credibility – no jurisdictional error – application dismissed. |
| Migration Act 1958, s.36(2), 91R(2), 422B, 424A |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 QAAC v Refugee Review Tribunal [2005] FCAFC 92 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 VHAP of 2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 ([2006] FCAFC 61) SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 SZHTL v Minister for Immigration and Multicultural Affairs [2006] FCA 1052 SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZHWD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3708 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 September 2007 |
| Date of Last Submission: | 24 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 04 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application filed on 16 December 2005, as amended on 29 May 2007, is dismissed.
The first and second applicant pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3708 of 2005
| SZHWD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) filed on 16 December 2005, and amended on 29 May 2007, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 16 November 2005 and handed down on 25 November 2005, which affirmed the decision of a delegate of the respondent Minister to refuse the applicant a protection visa.
Background
The applicants are husband (“the applicant”) and wife (“the applicant wife”), who are citizens of India and who arrived in Australia on 15 January 2005. On 24 February 2005, they lodged an application for protection visas (reproduced in the Court Book (“CB”) at CB 1 to CB 45). On 5 April 2005, the application was refused by a delegate of the respondent Minister.
Applicants’ claims to protection
The applicant wife did not assert any independent claims of her own. Her claims rested on those of her husband. She applied as a member of his family (see generally the application for a protection visa, in particular at CB 28 to CB 31). The application for review (and the attached statement in support of the application at CB 109) is stated to be from the applicant. The applicant wife authorised the Tribunal to communicate with the applicant for the purposes of the application (CB 108.5). (See also the applicant’s statement attached to his adviser’s submissions of 10 October 2005 (CB 116 to CB 117), referred to at CB 137.8 in the Tribunal’s decision record, and generally, the Tribunal’s review of what was said by the applicant and the applicant’s advisor at the hearing it conducted with them (CB 140.4 to CB 148.3).)
The applicant’s claims to protection arise from his claims to be a Sikh who lived, and was engaged in business and employment, in a predominately Hindu part of India (see CB 8 to CB 9 in the application for a protection visa reproduced at CB 1 to CB 32). The applicant claimed that members of the Rashtriya Swayamsewak Sangh (“RSS”) or the Bajrang Dal (which is part of a Hindu extremist group) were jealous of his business in Kala Afghana and “started abusing and threatening him.” The applicant also stated that he opened a stationery shop in the front of the family home, opposite the Catholic school at which his wife taught, in their village of Ghane Ke Banger. The applicant claimed that members of the RSS and Bajrang Dal came to his (stationery) shop and argued with him and that shots were fired. The applicant claimed that he complained to police about this incident but that he received no assistance from them, and was instead detained for three days in December 2003. The applicant claimed that his release had been secured by Sikh leaders of the Akali Dal who had interceded on his behalf with local police. The applicant further claimed to fear harm from Hindu extremists because the applicant wife taught at a Catholic School. The applicant’s claims were also addressed in a response (CB 126) to the Tribunal’s letter of 20 October 2005, sent pursuant to s.424A of the Act (CB 123 to CB 125).
Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out in its decision record at CB 152.10 to CB 157.10. The Tribunal found that the applicant’s evidence as to why the Hindu extremists were threatening him to be inconsistent, and his explanations to be “extremely vague.” It found conflicts between the evidence provided by the applicant and the applicant wife in relation to claims of harm from Hindu extremists. It was not satisfied that the claimed damage to the applicant’s house, nor to one of his shops, had occurred. Nor did the Tribunal accept that the applicant had been attacked with an iron rod (a claim raised at the hearing). The Tribunal rejected the applicant’s claims because of the view that it took of the applicants’ evidence. Given that it did not accept that the applicant had ever experienced any problems from Hindu fundamentalists, the Tribunal did not accept that he had gone to the police to report these incidents. This finding was also made on the basis of inconsistencies in the applicants’ evidence. The Tribunal was satisfied that the applicant had never been of interest to the Hindu extremists or any other Hindu organisation because of his ethnicity or religion. It did not accept that he would be of interest to such groups if he were to return to India. It found he did not face a real chance of persecution because of his wife’s employment at a Catholic school.
In all, therefore, the Tribunal rejected the applicants’ claims to ever having been harmed in the past and his claim to fear harm in the future. As the applicant wife’s claims were dependent on the applicant husband’s claims and no separate Refugees Convention claims were made by her, the Tribunal found that neither applicant satisfied the criteria set out in s.36(2) of the Act such that a protection visa must be granted to them.
Application to the Court
The amended application filed 29 May 2007 puts forward two grounds with particulars:
“1. The Tribunal committed jurisdictional error because it constructively erred in its Application as to what amounted to serious harm under s 91R(2) of the Migration Act.
Particulars
1.1 The Applicant claimed he feared violence as a Sikh as members of the Rashtiya Swayamsevak Sangh and Bajrang Dal abused and threatened him.
1.2 The Tribunal found that there were no claims of violence actually having been committed against the Applicant. It did not accept that:
- the shooting incident at the Applicant’s stationery shop occurred
- the Applicant was attacked by four people with an iron rod
- the Applicant was physically or mentally abused by the Police
- the Applicant did not experience any problems from the RSS or Bajrang Dal because of his Sikh ethnicity.
1.3 The Tribunal found that?:-
1.3.1 There was a litany of evidence of country information but there was no evidence of persecution of Sikhs, nor, or in the foreseeable future.
1.3.2 The Tribunal relied on this information and deprived the Applicant of a fair opportunity of presenting his case.
1.4 The Tribunal acted manifestly unreasonable manner towards the Applicant, when dealing with the Applicant’s claims, because of its failure to consider the claims in accordance with the criteria in Article 1A(2) of the 1951 UN Convention, relating to the Status of Refugee, due to the following conclusion:
‘the Applicant did not experience any problems with the RSS of Bajrang Dal because of his Sikh ethnicity, his operation of business in predominately Hindu areas, or because his wife worked in a Catholic School.’
1.5 There is no need for systemic and discriminatory acts of serious violence to have been committed for treatment to amount to serious harm.
2. The Tribunal breached the common law Rules of Natural Justice in that it failed to comply with procedural fairness.
PARTICULARS
2.1 The Tribunal dismissed the Applicant’s Application due to a lack of credibility due to internal inconsistencies in:
2.1.1 The Applicant’s version of events
2.1.2 The Applicant’s wife’s recollection of events
which was said to conflict with the Applicant’s recollection of events.
2.2 It is submitted that due to non-compliance the procedural requirements of the Migration Act and the requirements of the rules of Common Law, Natural Justice relief should be granted.” [Errors in original]
The hearing before the Court
The applicant appeared in person with the assistance of an interpreter in the Punjabi language on 24 September 2007. Ms L Clegg of Counsel appeared for the first respondent. I also have before me written submissions filed by the applicants on 11 September 2007, and Ms Clegg’s written submissions for the first respondent filed on 19 September 2007.
At the hearing before the Court the applicant explained that his wife could not attend Court, but that he had come to Court with her authority to represent her.
Application for an adjournment
At the hearing,s the applicant confirmed that Mr C Jayawardena (who had filed a notice of appearance on behalf of the applicants) was no longer representing them and had returned relevant documents to them sometime in June 2007. (No notice of “Ceasing to Act” has been filed.) The applicant further submitted that the amended application filed on 29 May 2007, and written submissions filed on 11 September 2007, had not been drafted by way of any assistance from Mr Jayawardena. He said these had been drafted by a person unknown to him, but to whom a “friend” of the applicant had referred the applicant’s matter.
The applicant sought an adjournment of the hearing so that he could consult a barrister whose name (Mr Kumar) and telephone number had been given to him three days ago by a friend. The applicant claimed that he faced language difficulties in consulting a legal representative and that his brother, who gave evidence on his behalf before the Tribunal, and who had been in Australia since 1996 (see CB 146.7), was also unable to assist in this regard.
Ms Clegg opposed the adjournment on the basis that there was no explanation from the applicant as to why he had not taken steps to contact the barrister, Mr Kumar, in the time available to him. Further, that there was a lack of merit in the applicant’s case. I agreed with Ms Clegg’s reasons for opposing the adjournment. Further, I took into consideration that the applicant had provided no explanation as to why he had sought the assistance of another person (through a friend) in the drafting of the amended application while still being represented by a solicitor who remained as the solicitor on the record. (The amended application was filed in May 2007, but the claims of return of his documents was said to have been in June 2007.) Beyond this he provided no explanation other than a reference to language difficulties as to why he had taken no action to consult a barrister or, indeed, any other legal representative (beyond the unknown person that he had approached through his friend) from the time that he claimed he was notified by his solicitor that he was no longer acting for him (June 2007).
The applicant’s claimed language difficulties need to be seen in light of the support that the applicant has received from his friend (whom he named as a “Mr Singh”) and his brother who has been in Australia since 1996. In all, therefore, I did not see the applicant’s explanation that having filed a matter in this Court on 16 December 2005, and having been told by his former solicitor that he would no longer act for him in June 2007, that he would then come to the final hearing of his matter, a date that had been known to him for some time (the matter had been set down for final hearing by a Registrar in January 2006), and seek an adjournment. I did not find the applicant’s explanation for this late request for an adjournment to seek further legal assistance in these circumstances satisfactory and, in any event, in light of the lack of merit of his case (see below), could not see any useful purpose in further delaying the final hearing of this matter. In all, therefore, the application for adjournment was refused.
Ground One – Failure to consider the provisions of s.91R of the Act
The first ground of the amended application asserts jurisdictional error on the part of the Tribunal because it “erred in its Application as to what amounted to serious harm under s 91R(2) of the Migration Act.” Any plain reading of the Tribunal’s decision record reveals that the Tribunal did not accept that the applicant had ever experienced any problems from Hindu fundamentalists. In light of this, I agree with Ms Clegg that the Tribunal, therefore, was not required to consider the provisions of s.91R(2) of the Act to any greater degree of detail given that its finding that the applicant had not suffered any harm as claimed, made any assessment of whether the harm claimed could constitute “serious harm” for the purposes of s.91R of the Act irrelevant. Further, I also agree with Ms Clegg that the applicant’s written submissions appear to be directed to the facts of another case. The references to cases having discussed persecution prior to the insertion of s.91R in the Act do not assist the applicant now in asserting an error on the part of the Tribunal as to what amounted to serious harm, in light of s.91R of the Act.
Further, the applicant’s contention at paragraph 10 of his written submissions that the Tribunal “implicitly narrowed the scope of serious harm in an impermissible manner by finding that there were no claims of violence actually having been committed against the Applicant,” is, as Ms Clegg submits, a misstatement, and indeed, a misrepresentation, of what the Tribunal has actually done. The Tribunal comprehensively considered the applicant’s claims of having been subjected to various types of harm and found, plainly, that these incidents had not occurred. This was based on the inconsistencies in the applicants’ evidence and the vague nature of the applicant’s explanations. A finding that certain claimed events of harm did not take place does not mean that the Tribunal “implicitly narrowed the scope of serious harm.” Simply, given the Tribunal’s findings that the applicant had not suffered any harm, the Tribunal was not required to further consider the matters set out in s.91R of the Act.
As Ms Clegg submits, particulars 1.1 and 1.2 in the amended application do not on their face identify an error of law. However, to the extent that it may be said that the applicants are seeking to complain that the Tribunal found that there were no claims of violence in light of the applicant’s claims that he feared violence as a Sikh, and that Hindu fundamentalists had abused and threatened him, then his complaint, in all the circumstances, does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).
Particular 1.3 of the amended application asserts that the Tribunal relied on independent country information and found that there was evidence of persecution of Sikhs and that in relating this information it deprived the applicant of a fair opportunity of presenting his case.
While the Tribunal made some reference in its decision record to independent country information (see what is set out at CB 150 to CB 152), any plain reading of the Tribunal’s reasons, however, does not support the complaint that the Tribunal relied on information that there was no evidence of persecution of Sikhs in India. Simply, to again emphasise the point, the Tribunal did not accept that the applicant had suffered harm as he had claimed.
But even if it had relied on any such information, as Ms Clegg submits this was information that the Tribunal was entitled to rely upon, and give weight to, and this did not deprive the applicant of a fair opportunity of presenting his case in the sense that there was any breach of procedural fairness. Given that s.422B of the Act applies to this case, the Tribunal’s statutory obligation in this regard (pursuant to s.424A(1) of the Act) was not invoked due to the exception contained in s.424A(3)(a) of the Act (QAAC v Refugee Review Tribunal [2005] FCAFC 92, Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572, VHAP of 2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82). In terms of the weight to be given to such independent country information, see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11].
Further, as Ms Clegg also submits, to the extent that the Tribunal relied on what the applicants themselves put to the Tribunal, such information fell within the exception within s.424A(3)(b) of the Act, and given what the High Court set out in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) (in particular at [13]-[22]), no such obligation pursuant to s.424A(1) of the Act was invoked.
By way of particular 1.4, the applicants complain that the Tribunal acted in a “manifestly unreasonable manner towards the Applicant, when dealing with the Applicant’s claims.” This is said to be because the Tribunal concluded that the applicant did not experience any problems with Hindu fundamentalists because of his Sikh ethnicity, the operation of his business or because his wife worked in a Catholic School. This complaint, again, does not rise above an impermissible request for merits review (Wu Shan Liang).
Ms Clegg submits that this could be an allegation of bias. In this event, this complaint also should be rejected. There is no evidence before the Court such that a claim of bias, or a claim sthat the Tribunal acted in bad faith, would be made out (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431).
At particular 1.5, the applicant asserts that there “is no need for systemic and discriminatory acts of actual violence to have been committed for treatment to amount to serious harm.” I can only agree with Ms Clegg that this submission is without merit given what is set out in s.91R(1)(c) of the Act. For reasons already set out above (see [14]-[15] above), the Tribunal did not accept that the claimed conduct had occurred such that the question of whether any harm suffered arose from systematic and discriminatory conduct becomes relevant.
Ground Two – Failure to accord procedural fairness
The second ground in the amended application complains that the Tribunal breached the common law rules of natural justice in that it failed to comply with procedural fairness. This is a case to which s.422B of the Act applies (as referred to above), such as to make the rules of natural justice expressed those which are provided for in Division 4 of Part 7 of the Act (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61, SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62, SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64).
Further, the Tribunal’s account of what occurred at the hearing set out in its decision record (CB 140.4 to CB 148.3) reveals that the Tribunal put to the applicant the various inconsistencies in the applicant’s claims and that it had concerns about his claims. As Ms Clegg submits, there is no error as identified by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, as the Tribunal put its adverse views of the applicant’s evidence to him at the hearing. Further, it should be noted, that the Tribunal also put its concerns on these issues which were ultimately determinative in its decision to affirm the decision under review to the applicants by way of its letter of 20 October 2005 (CB 123 to CB 125), and the applicants, through their adviser, provided a response (CB 126).
By way of particulars, the applicants complain that the Tribunal dismissed the applicants’ claims on the basis of a lack of credibility due to internal inconsistencies which were said to arise between the applicant’s version of events and the applicant wife’s recollection of events, which were subsequently said to conflict with the applicant’s version of events. The applicants complain that in doing so the Tribunal failed to comply with statutory procedural requirements and the rules of common law.
I note again that this is a matter to which s.422B applies. To the extent that the applicants seek to assert that the Tribunal was required to put its adverse views of their evidence to them in writing pursuant to s.424A(1) of the Act, then the Tribunal’s reasoning process in this regard is not “information” for the purposes of that section (SZBYR at [18], and with reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214).
But as Ms Clegg also submitted, the Tribunal in any event in this regard, complied with s.424A(1) of the Act by putting to the applicants in writing, and giving them the opportunity to respond in writing, not only the inconsistencies in the evidence provided by the applicant and his wife, but also the inconsistencies in the evidence provided by the applicant himself, such that in any event the Tribunal complied with the requirements of s.424A(1) of the Act even if such material could be said to be “information” for the purposes of that section.
The Tribunal rejected the applicant wife’s application on the basis that not having put forward any separate claims of her own, her application was dependent on the outcome of her husband’s application. In relation to the applicant, the Tribunal clearly put to him both at the hearing but also by way of its letter of 20 October 2005, that there were inconsistencies between his version of events and his wife’s recollection of events, and he was given the opportunity to address these inconsistencies by way of a written response. I note that the adviser provided such a response (CB 126). This ground as particularised also does not succeed.
As set out above the applicant wife’s application for a protection visa was dependent on the substance of her husband’s claims. (See the relationship between s36(2)(a) of the Act and s.32(2)(b) of the Act and its applicant to the relevant circumstances of this matter.)
Original application to the Court
The applicant wife’s evidence (as relied on by the Tribunal) before the Tribunal (CB 145.5 to CB 146.7) related to threatening calls received from Hindu fundamentalists in part because she worked at a Catholic school. Her evidence was clear that she had not received any calls. These had been directed to her husband. There was no evidence or even a claim before the Tribunal that she herself had been targeted for this reason.
Ms Clegg contends (see footnote 18 to paragraph 29 of her written submissions), that s.424A(3)(b) of the Act also applied to any information given by both applicants to the Tribunal at the hearing because they were joint applicants and members of the same family unit (see M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [22]-[23], per Young J, MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 per Marshal J, SZHTL v Minister for Immigration and Multicultural Affairs [2006] FCA 1052 at [20-[21], per Cowdroy J). I note, however, the proposition relied on by the first respondent was doubted by a Full Court of the Federal Court in SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13 (at [45]). The issue of relation to s.424A of the Act, however, is resolved in that any evidence given by the applicant wife at the hearing as it related to the applicant and the inconsistencies in their evidence was put to the applicant in writing for comment in discharge of the Tribunal’s obligations pursuant to s.424A(1) of the Act (see CB 123.8).
Given that the applicant appeared unrepresented before the Court, I did consider the grounds as set out in the original application to the Court to see if these were of any assistance to the applicants. Grounds one and two seek to re-agitate the merits of the applicants’ case before the Tribunal, in that they simply take issue with the Tribunal’s finding that “the applicant did not experience any problems from” Hindu fundamentalists, and complains that the Tribunal did not “ascertain clearly that the applicant was targeted due to his Sikh religion and faith.” Such complaints do not assist the applicants before this Court as this Court is not permitted to engage in a review of the merits of these claims (Wu Shan Liang).
Ground three asserts that the Tribunal failed to give the applicant the benefit of the doubt on those issues where the applicant could not “explain clearly.” To the extent that this is a complaint that the Tribunal applied the wrong test in assessing the applicant’s credibility, then such a complaint must be rejected in light of what the Tribunal set out in its decision record at CB 153, that is, the test and the approach that it was required to adopt in an assessment of the credibility of an applicant’s claims. I cannot see that its subsequent assessment and application deviated from what the Tribunal understood to be the correct approach to this issue. This complaint also does not succeed.
In all, the Tribunal did not accept the applicant’s claims. The rejection of these claims, that is, the rejection of the credibility of these claims was unambiguous. The findings of fact made by the Tribunal in this regard were consistent with what was described by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 (at [67]) as a matter for the Tribunal as the “decision-maker par excellence.” The applicant wife’s application depended on the outcome of the applicant’s claims. Having failed to reach the requisite level of satisfaction that the applicant was a person to whom Australia had protection obligations, it followed that the applicant wife’s application could not satisfy the relevant statutory requirements as they applied to her. While the applicant wife was certainly the spouse of the applicant she was a member of the family unit. The applicant’s failure to satisfy the Tribunal that he met the criterion set out in s.36(2)(a) of the Act meant that her application also failed.
I cannot discern jurisdictional error in the Tribunal’s decision. This application is accordingly dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 4 October 2007
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