SZKDT v Minister for Immigration
[2007] FMCA 870
•6 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKDT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 870 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – whether the Tribunal breached s.424A(1)(b) of the Migration Act 1958 (Cth) considered – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 424, 424A |
| Minister for Immigration v SZGMF [2006] FCAFC 138 SZEOP v Minister for Immigration and Anor [2006] FMCA 1707 |
| Applicant: | SZKDT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG375 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 6 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG375 of 2007
| SZKDT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 21 December 2006 and was handed down on 9 January 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and had made claims of political persecution. The background to the applicant’s protection visa claims, the procedure followed by the Tribunal and the Tribunal decision on the applicant’s claims is summarised in written submissions filed on behalf of the Minister on 29 May, 2007. I adopt as background for the purposes of this judgment with necessary amendments, paragraphs 1 through to 12 of those written submissions:
The applicant arrived in Australia from Nepal on 10 July 2006. He applied for a protection visa on 17 August 2006 (court bok (CB)1-28). This was refused by the Minister’s delegate on 30 August 2006 (CB39-46).
In his protection visa application (at CB 27-28) the applicant claimed he was persecuted in Nepal by reason of his imputed political opinion, as the son of a Maoist rebel who had deserted to join the Government in Nepal. The applicant indicated that he was of the Catholic religion.
The decision of the delegate
The delegate determined that the applicant had rights to reside in India, where he did not have a well founded fear of persecution (CB45).
Appeal to the Tribunal
The applicant appealed to the Tribunal on 18 September 2006 (CB58-62). The applicant’s agent sent a submission on the same day contending that s.36(3) of the Migration Act 1958 (Cth) (“the Migration Act”) had been misapplied by the delegate.
On 3 November 2006 the Tribunal sent the applicant an invitation to respond to certain information in accordance with s.424A of the Act (CB79-81). On the same day the Tribunal sent the applicant a request for further information under s.424 of the Act (CB84-85). The matters which the Tribunal drew to the applicant’s attention were
a)that his passport, issued in 2002, indicated that he was living with his father, whereas the applicant claimed that his father was killed in 2001 by the Maoists.
b)that the applicant’s passport contained a valid UAE residence visa current to 21 April 2009.
c)that country information was to the effect that he had a right to reside in India.
d)that his application indicated that he had no difficulty leaving Nepal legally or obtaining a passport and that he had not applied for refugee status in UAE.
e)that his application for a visa to travel to Australia indicated that the purpose of his visit was a family reunion with his cousin and sister-in-law in Sydney. The application also asserted he was employed as a line leader with a scaffolding company in UAE, whereas his protection visa application asserted that he was a machine operator/welder who had had his UAE visa cancelled because the employer reported his failure to return to his job on time;
f)country information indicated that internal relocation was viable, as did the applicant’s personal circumstances (which were set out); and
g)country information indicated that there was peace in Nepal.
On 17 November 2006 the applicant’s adviser responded on his behalf, and attached a statutory declaration by the applicant CB 87-92. In the adviser's letter the adviser submits:
The applicant’s statutory declaration clearly reveals as to why the applicant was compelled to flee Nepal as well as his well founded fear of being persecuted by the hands of Maoist due to being a member of particular social group (able bodied person, overseas returnee, and son of the active member of United Marxist and Lenninist (UML) political opinion (member of student union called All Nepal National Free Students Union which is a brother organization of UML).
In his statutory declaration (CB 91-92) the applicant explained that the date of his father’s death was incorrect in his original application. The applicant asserted that he had made a mistake in converting the dates from the Nepali calendar. The applicant asserted that he did not have a legally enforceable right to enter and reside in the UAE. The applicant asserted that he did not have a legally enforceable right to enter and reside in the India and that the Maoists operated from India. He was able to obtain a passport and leave Nepal legally because he was wanted by the Maoists, not the Nepal government. There was no provision for refugee status in Nepal. He could not relocate in Nepal as the Maoists were running a parallel state in Nepal. The current peace talks were a political game.
There was no reference in the statutory declaration to the All Nepal National Free Students Union.
On 20 November 2006 the Tribunal held a hearing. In its reasons the Tribunal records the following evidence as being given by the applicant (CB135-136). The applicant explained that he was a Buddhist and a Hindu but he also liked Christianity. He said he had given money to Maoist supporters in the UAE because they threatened him that otherwise his life would be in danger if he went back to Nepal. He claimed that his father died in October 2002. He stated that he thought his 2009 UAE visa had been cancelled by his employer. He claimed that he left Nepal because he was receiving threats, and that he left UAE because of the Maoists requests for donations. The applicant claimed that he would be sent back to Nepal if he returned to the UAE as he no longer had a job in the UAE. He said that he indicated that he was coming to Australia for a family reunion, because he did not think he would get a visa if he said he was coming to Australia for protection. The applicant said that he had been a line leader in the UAE, but on other days had operated a machine as well as doing welding. The applicant stated that he had lived in the UAE for 3 years and 7 months.
The Tribunal decision
The Tribunal noted that it was not considering any claims as against the government of Nepal as the applicant had not made any such claims (CB141). Because the applicant had indicated at the hearing he was not a Catholic the Tribunal did not consider any claim based upon the applicant’s assertion in his application that he was a Catholic (CB141).
The Tribunal concluded that the applicant was not a credible witness (CB142). Firstly, it did not believe the applicant’s evidence that there had been a mistake in converting the year of his father’s death from the Nepali calendar. Accordingly the Tribunal reasoned that the applicant’s father had not been killed by the Maoists as had been claimed by the applicant. The Tribunal did not believe that the applicant’s father had deserted the Maoists, that they killed him and then harassed his family. The Tribunal concluded that there was no basis for any of the applicant’s claims based upon his father being a Maoist. The Tribunal did not accept the applicant’s claim that he was a member of a particular social group described as able bodied person, overseas returnee, and son of the active member of United Marxist and Lenninist (UML) political opinion (member of student union called All Nepal National Free Students Union which is a brother organization of UML) on the basis that the RRT found that the applicant’s father was not a member (CB142). The Tribunal then rejected the applicant’s claim that the Nepalese authorities were unable to protect him because they did not protect his father.
The Tribunal then stated that these findings are supported by the following findings. The Tribunal then found that the applicant came to Australia for a family reunion, and had no fear of persecution in Nepal (CB143). The Tribunal found that he had deliberately remained in Australia so he could create a situation where he could state he had no legal right to return to the UAE. The Tribunal found the applicant had given inconsistent evidence concerning an attack upon him by “musketeers” whom he alleged to be Maoists. The Tribunal considered that this reflected on his credibility (CB143). The Tribunal found that the applicant cannot be believed and it was not prepared to accept that any of his claims were true. Based upon independent information the Tribunal found that there was peace in Nepal and that there was no risk of retribution against the applicant (CB144). (emphasis retained)
The present proceedings began with a show cause application filed on 6 February 2007. In that application the applicant asserted notification of the Tribunal decision on 15 January 2007. I find that the application was filed within time.
The applicant now relies upon an amended application filed on 5 June 2007. It was common ground that the applicant required leave to rely upon that amended application. Leave was sought at the outset of the hearing today. Counsel for the Minister submitted that the hearing should be conducted as a hearing on the application for leave and if the application was found to have no prospect of success, leave should be refused. The apparent purpose in that submission was to achieve an outcome in which the Court’s decision would be interlocutory rather than final. Given that this case was listed on 5 March 2007 for a final rather than an interlocutory hearing today I was not convinced that that procedure, if followed, would necessarily result in an interlocutory decision. In any event, I elected to grant leave for the applicant to rely upon the amended application at the outset of the hearing today and I am in no doubt that the application as amended raises an arguable case.
Although there are three grounds in the amended application only ground 3 is pressed. That ground is:
The Tribunal made jurisdictional error in that it failed to comply with the requirements of section 424A(1)(b) of the Migration Act 1958 in that it failed to explain the relevance of information that the applicant’s passport, issued on 15 July 2002, states his next of kin as his father whereas the applicant’s statement accompanying it is his Application for a protection visa stated that his father was killed in 2001 in Kathmandu by miscreants.
Particulars
(a)The Tribunal stated that the relevance of the information was that if the Tribunal found an inconsistency that this may reflect negatively on the creditability of the applicant. The Tribunal also stated that it may consider Kathmandu to be a safe place and not like he explained in his written statement.
(b)In its decision, the Tribunal found that the applicant’s father was alive at the time of the issue of the applicant’s passport and that he was not killed my Maoists. The Tribunal on this basis rejected all of the applicant’s claims in relation to his father being a Maoist, his father deserting the Maoists, the Maoists killing his father, the Maoists harassing the family of the applicant, the applicant’s claims that a local MP assisted the applicant to get to the UAE and the applicant’s claim that he was a member of a particular social group and that he had a political opinion which he had claimed.
The applicant filed written submissions in support of the amended application on 5 June 2007. I incorporate in these reasons paragraphs 3 through to 16 of those written submissions:
On 3 November 2006, the RRT sent the applicant a section 424A letter (CB 79/81). At CB 79, the RRT stated that it had information as [follows]:
(1) Your passport, issued on 15 July 2002, states your next of kin is Mr … . Your Application for a Protection visa stated that you lived at this address from 1981 to 2000, and that you were born there. You have not included any details regarding your father. In your typed statement accompanying your Application for a Protection visa you stated that your father was killed in 2001 in Kathmandu by miscreants.
At CB 80, in the s 424A letter, the RRT stated that the relevance of the information was:
(1) If … is your father, then there is an inconsistency in your evidence in that he could not have died in 2001 and still be your next of kin in 2002. This may reflect negatively on your credibility. Further, if the Tribunal were to accept the evidence that your father is not dead, then it may consider that Kathmandu is a safe place, and not at all like you describe it in your written statement. Further, your comments regarding the inability of the Nepalese authorities to protect you as they did not protect your father would also become irrelevant if he is still alive.
At CB 412.6, the RRT made findings in relation to the subject matter of the s 424A letter as follows:
The Tribunal finds that the applicant’s father was alive at the time of the issue of the applicant’s passport, and that he was not killed by Maoists, or at least not in the circumstances described by the applicant. The Tribunal does not accept the applicant’s claims in relation to his father being a Maoist, and that he then deserted the Maoists who then killed him and harassed his family. As such, the basis of the applicant’s claims based on his father being a Maoist is removed, and the Tribunal rejects those claims, and accordingly makes this finding. Therefore the Tribunal also rejects the applicant’s claims that a local MP helped the applicant’s father surrender his weapons to the government and assisted the applicant get [sic] to the UAE. Further, the applicant’s claims that he was a member of a particular social group described as an able bodied person, overseas returnee, and son of the active member of United Marxist and Leninist (UML) political opinion (member of student Union called All Nepal National Free Students Union which is a brother organisation of UML), are rejected as the Tribunal finds that his father was not a member. Further, the Tribunal considers that the applicant’s evidence that Kathmandu is not a safe place is placed in question.
Hence, in the above passage, the RRT used the inconsistency to make a finding that the applicant’s father was alive at the time of the issue of the applicant’s passport and that he was not killed by Maoists. This was used to reject the claims that his father had been a Maoist, that he had deserted the Maoists who then killed him and harassed his family. The RRT also used this finding to reject that a local MP had helped the applicant get to the UAE.
It is submitted that the RRT failed to comply with the requirement of s 424A(1)(b) of the Migration Act 1958: MIMIA v SZGMF [2006] FCAFC 138 at [38] to [41].
To paraphrase what was said by the Full Court in SZGMF at [40], no practical or other difficulty stood in the way of the RRT telling the applicant that the information could lead the Tribunal to reject the whole basis of his claims that he had gone to the UAE with the assistance of a local MP because of his fear of persecution and that his father had been a member of the Maoists and killed by Maoists.
To merely state that an inconsistency may “reflect negatively on your credibility” hardly places an applicant on notice that if the RRT finds the inconsistency it will reject all of the applicant’s claims.
What must be conveyed in relation to the relevance of the information is both the use and the importance which the RRT will attach to the information. The RRT letter conveyed neither.
The section 424A [letter] did refer in opaque fashion to “the evidence that [your] father is not dead” but the relevance of this was limited to Kathmandu being a safe place.
The Tribunal should have said something like: The information may cause the Tribunal to conclude that your father is not dead. If the Tribunal were to accept that your father is not dead, the Tribunal might reject that he was killed by the Maoists and reject that he was ever a Maoist. The Tribunal might also reject that a local MP assisted your father to surrender weapons to the government. The Tribunal might further reject that the MP assisted you to travel to the UAE when [you] left Nepal. Your evidence that Kathmandu is not a safe place would also be placed in question.
As stated by Weinberg J in NBKS v MIMIA [2006] FCAFC 174 at [42], s 424A(1)(b) is no less important than s 424(1)(a).
The RRT regarded the inconsistency as a killer punch which demolished the applicant’s case. What s 424A(1)(b) required it do was not leave some footprint in the sand with opaque references to “may reflect negatively on your credibility” and “if the Tribunal were to accept the evidence that your father is not dead, then it may consider that Kathmandu is a safe place…”.
The later statement contains the somewhat cryptic reference that the Tribunal may “accept the evidence that your father is not dead”.
It was not an onerous task for the Tribunal to comply with s.424A(a)(b) as explained in [12] above. The applicant is entitled to the relief claimed as jurisdictional error has been established. The First Respondent should pay the applicant’s costs.
Both parties took the opportunity also to make oral submissions today. In essence, the applicant asserts that the s.424A letter sent by the Tribunal was inadequate in that it did not alert the applicant to the significance of the information relied upon by the Tribunal as was ultimately revealed in the Tribunal decision. The applicant submits that where, as here, a s.424A letter is sent which alerts an applicant to a certain significance of information but the information assumes different or more importance over time, there remains an obligation to write again to an applicant so that the applicant can effectively comment on the information, properly informed of the significance of it. The applicant submits that by failing to follow that course in this case the Tribunal fell into jurisdictional error.
The Minister’s position is that the letter sent by the Tribunal in this instance was adequate for its purpose in that it sufficiently identified the credibility concern ultimately held by the Tribunal and that further and in any event the information which ultimately proved to be determinative was not the information disclosed in the s.424A letter but the applicant’s response to the invitation to comment and his evidence given at the Tribunal hearing.
The general principles in relation to the Tribunal’s obligation under s.424A(1)(b) are set out in the decision of the Full Court of the Federal Court in the Minister for Immigration v SZGMF [2006] FCAFC 138. I adopt those principles for the purposes of this judgment. I was also taken to the decision of Smith FM in SZEOP v Minister for Immigration and Anor [2006] FMCA 1707. Two things may be drawn from the latter decision. The first is that in order to resolve in any case the question of whether a tribunal meets its obligation to ensure as far as is reasonably practicable that the applicant understands why the information disclosed is relevant to the review, one must look at the facts of each case. This means looking at the terms of the letter sent in each case and the reasons for the Tribunal decision. Secondly, in the case before Smith FM, his Honour was satisfied that there was a sufficient disclosure of the relevance of the information in that case in terms of questioning the entire genuineness of the applicant’s refugee claims on grounds of recent invention.
In the present case, on my reading, the letter sent to the applicant by the Tribunal on 3 November 2006 alerted the applicant to two general possibilities. The first was that the inconsistency between the information in his passport and the information in his protection visa application raised a general concern about his credibility.
Secondly, the same information might have supported a finding that Kathmandu, where the applicant came from, was a safe place if his father was still alive, and by implication, whatever fear of harm he held might not be well-founded. The letter therefore raised both the possibility that the applicant’s claims might be impugned on the basis of credibility and if credible might also be rejected on the basis that the applicant’s fear was not well-founded. There was not the degree of specificity in the letter in relation to credibility that one would have expected in relation to the unequivocal and detailed Tribunal findings on credibility in its decision and not the degree of specificity that Smith FM found in SZEOP. Nevertheless, the applicant’s case faces several difficulties.
The first is that the Tribunal’s finding on page 144 of the court book that the applicant could not be believed and that the Tribunal was not prepared to accept that any of his claims were true was supported not only by the Tribunal’s findings in relation to the issue of whether or not his father was alive but to a series of supportive findings on other factual issues dealt with on pages 143 and 144 of the court book. That is not in itself fatal to the applicant’s claims. It is sufficient if information required to be disclosed pursuant to s.424A is a part of the reason for affirming the decision under review: it does not have to be the only reason.
The second difficulty is that, to the extent that the Tribunal decision depended upon information in the applicant’s passport, that passport was provided to the Tribunal and disclosure was not required because of the operation of s.424A(3)(b). At the time the Tribunal sent its letter under s.424A the only copy of the applicant’s passport it had was the copy the applicant provided to the Minister’s Department. However, in a letter also sent on 3 November 2006 pursuant to s.424 of the Migration Act (and reproduced on pages 84 and 85 of the court book) the Tribunal requested the applicant’s passport. The passport was provided in response to that letter.
Section 424(1) of the Migration Act requires the Tribunal to have regard to information requested and obtained pursuant to that section. The Tribunal decision is silent on the question of whether the applicant’s passport relied upon was the original provided to the Tribunal or the copy provided to the Minister’s Department. The applicant bears the onus of proof in establishing which information was relied upon.
There is no evidence that the Tribunal failed to meet its statutory obligation under s.424 of the Migration Act to have regard to the passport supplied in response to the s.424 letter. I find, on the balance of probabilities, that it was the information in the passport provided to the Tribunal which was ultimately relied on by the Tribunal in conformity with the Tribunal’s obligations under s.424.
That is not fatal to the applicant’s claims because the relevant information identified in the s.424A letter was not simply the information in the applicant’s passport but the inconsistency between that information and the information in the applicant’s protection visa application. If that inconsistency was ultimately determinative in whole or part of the review before the Tribunal the Tribunal’s obligation under s.424A remained a live one. The issue remains whether the Tribunal met its obligation to ensure as far as is reasonably practicable that the applicant understood why the inconsistency between the passport information and the protection visa application was relevant to the review.
The third difficulty faced by the applicant is more substantial. The Tribunal said on page 142 of the court book:
The applicant’s passport, issued on 15 July 2002, states that his next of kin is his father, …. In his typed statement accompanying his Application for a Protection visa the applicant stated that his father was killed in 2001 in Kathmandu by miscreants. There is an inconsistency in the applicant’s evidence in that his father could not have died in 2001 and still be his next of kin in 2002. The applicant stated that a mistake was made in converting the dates from the Nepali Calendar into the English Calendar regarding the date of his father’s death. He stated that his father was killed on 30 October 2002 and the date mentioned in his Statement, ‘in the end of 2001’, is wrong. The Tribunal does not accept the applicant’s explanation that there was a mistake in translation. The Tribunal finds that he forgot that his father was named as his next of kin in the passport, and when this was brought to his attention by the Tribunal, he tried to cover up the mistake by stating there was a mistake in the translation. As a result, the Tribunal finds that the applicant’s evidence in this regard is not credible and makes the following findings. The Tribunal finds that the applicant’s father was alive at the time of the issue of the applicant’s passport, and that he was not killed by Maoists, or at least not in the circumstances described by the applicant. The Tribunal does not accept the applicant’s claims in relation to his father being a Maoist, and that he then deserted the Maoists who then killed him and harassed his family. As such, the basis of the applicant’s claims based on his father being a Maoist is removed, and the Tribunal rejects those claims, and accordingly makes this finding. Therefore the Tribunal also rejects the applicant’s claims that a local MP helped the applicant’s father surrender his weapons to the government and assisted the applicant get to the UAE. Further, the applicant’s claims that he was a member of a particular social group described as an able bodied person, overseas returnee, and son of the active member of United Marxist and Leninist (UML) political opinion (member of student Union called All Nepal National Free Students Union which is a brother organization of UML), are rejected as the Tribunal finds that his father was not a member. Further, the Tribunal considers that the applicant’s evidence that Kathmandu is not a safe place is placed in question. Moreover, the applicant’s comments regarding the inability of the Nepalese authorities to protect him, because they did not protect his father, are rejected by the Tribunal. (emphasis added)
Leaving aside the question of the logic in the Tribunal’s reasoning, which is not impugned, it is apparent that the Tribunal regarded this aspect of the applicant’s claims (which was a critical aspect) as a house of cards which collapsed once it was established that the applicant’s father did not die in 2001. The question is, what information was determinative of that finding? At the time the Tribunal sent its invitation to comment under s.424A it is plain that the Tribunal considered that the inconsistency between what the applicant’s passport revealed and what he had put, or not put, in his protection visa application might be determinative in relation to his credibility. However, things did not end there. The applicant provided a detailed response to the invitation to comment in which he sought to explain the inconsistency. The Tribunal emphatically rejected that explanation.
There was also discussion at the hearing conducted by the Tribunal which is relevantly recounted on page 135 of the court book. The Tribunal said:
The tribunal referred to the applicant’s claim that there was a mistake made in converting from the Nepalese calendar the date of the death of his father. He stated that when he said the Nepalese date to his friend he translated it incorrectly. He stated that the other dates had been converted correctly. The tribunal stated that it was not sure that it accepted this explanation. It stated that perhaps the fact was that his father was alive. He asked what the tribunal meant. The tribunal stated that it had been explored in a letter to the applicant, but it went through it again with him. The upshot was that it could be that his father was alive on the 15th of July 2002 when the applicant’s passport was issued. The applicant stated there was a mistake in the translation. The tribunal said that in his statement he had said that at the end of 2001 his father had been hacked to death. The applicant said this was definitely due to a mistake of translation, and that when the passport was issued to him his father was alive and in October (2002) his father was killed.
On a fair reading of the Tribunal’s reasons, what ultimately led to the Tribunal’s disbelief of the applicant was his change in his story and his effort to explain away the inconsistency between the passport information and the protection visa application. That inconsistency was the starting point in the Tribunal’s reasoning at page 142 of the court book but the determinative information was the response to the invitation to comment and the evidence given by the applicant at the hearing. That information was not disclosable information pursuant to s.424A(3)(b) and no additional obligation arose to invite comment on that information for the purposes of the review.
It follows and I find that the Tribunal did not breach its obligations under s.424A(1)(b) of the Migration Act. The Tribunal decision is thus a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs. Counsel for the applicant submitted that a lesser amount might be appropriate given that the Minister’s written submissions were overtaken by the amended application. I reject that submission. At the time the Minister’s submissions were prepared all issues in the earlier application were live and all issues in the amended application appeared to be live in the event that leave was granted. The work done on behalf of the Minister was properly undertaken and the costs in doing so were reasonably incurred. I see no reason in this case to depart from the Court’s scale. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 June 2007
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