SZMGU v Minister for Immigration
[2008] FMCA 1521
•19 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMGU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1521 |
| MIGRATION – Visa – Protection (Class XA) Visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution as a Falun Gong practitioner – whether Tribunal failed to accord procedural fairness – whether findings based on illogical or irrational reasons – whether Tribunal failed to take into account a relevant consideration – credibility – inconsistency – merits review – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.422B, 424A, 474 |
| WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577 SZDYI v Minister for Immigration & Anor [2005] FMCA 971 SZEQH v Minister for Immigration and Citizenship [2008] FCA 1474 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 |
| Applicant: | SZMGU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1253 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 October 2008 |
| Date of Last Submission: | 23 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Killalea |
| Solicitor for the Respondent: | Mr Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1253 of 2008
| SZMGU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of the People’s Republic of China, asks the Court to review a decision of the Refugee Review Tribunal that was signed on 31st March 2008 and handed down on 22nd April. He asks the Court to issue the following writs directed to the Second Respondent, the Refugee Review Tribunal:
i)A writ of certiorari quashing the Tribunal’s decision; and
ii)A writ of mandamus requiring the Tribunal to determine the application for review according to law.
In his 2nd Amended Application, filed in Court on the day of the hearing, the Applicant relies on the following three grounds of review:
a)The RRT failed to attain, or failed to exercise, jurisdiction by reason that the RRT erred in law in not acting judicially, or in failing to accord procedural fairness, in acting upon findings based on illogical and/or irrational reasons.
b)The RRT failed to attain, or failed to exercise, jurisdiction by reason that the RRT erred in law in failing to take into account a relevant consideration by reason that the Tribunal made findings that were illogical and/or irrational.
c)In the alternative, if the Court is of the view that the impugned findings of the RRT above are based on an assumption that the Applicant was detained in April 2000, then the RRT failed to attain, or failed to exercise, jurisdiction by reason that the RRT erred in law by failing to take into account a relevant consideration.
The First Respondent, the Minister for Immigration and Citizenship, has filed a Response denying that the Tribunal decision is affected by jurisdictional error
Background
The Applicant arrived in Australia on 7th April 2007. He applied for a Protection (Class XA) visa on 8th May 2007, claiming to have well-founded fear of persecution because he was a Falun Gong practitioner. He claimed to have been detained in April and July 2000, and to have been tortured and brainwashed during his periods of detention. The Applicant claimed that he made unsuccessful attempts to obtain a passport in 2000 and 2003. Eventually he obtained a passport in 2007 and a visa to enter Australia. Whilst in Australia he practised Falun Gong but he heard from his wife that the family home had been raided by police known as “610 Officers”.
The Minister’s delegate refused his application for a visa on 13th July 2007. The delegate did not accept that the Applicant was a genuine Falun Gong practitioner because of his “limited knowledge of the Falun Gong ethos”.[1]
Application to the Refugee Review Tribunal
[1] Court book at 71
On 30th July 2007 the Applicant lodged at the Sydney office of the Refugee Review Tribunal an application for review of the delegate’s decision.
The Tribunal wrote to the Applicant on 15th August 2007, inviting him to attend a hearing on 27th September. The Applicant advised the Tribunal that he would attend and wished to call evidence from another person about his membership of Falun Gong. The Applicant attended the hearing and gave oral evidence with the assistance of an interpreter in the Mandarin language. He produced his Chinese passport to the Tribunal. Unfortunately, his witness was unable to attend.
The Tribunal invited the Applicant to attend a further hearing on 16th October 2007. The Applicant provided a statement from the person who had been going to give evidence on the previous occasion, asserting that the Applicant had been practising Falun Gong in Australia. The Applicant’s son, who is in Australia on a student visa, attended the hearing and gave evidence on the Applicant’s behalf.
After the hearing, the Tribunal wrote to the Applicant on 1st November 2007. The letter was headed “Invitation to Comment on/respond to Information in Writing” and was clearly intended to comply with s.424A of the Migration Act. The letter sought the Applicant’s comments on:
a)his claims that he previously suffered from spinal problems;
b)aspects about his claim to have participated in Falun Gong activities in China;
c)aspects of his claim to have been apprehended by officers of the 610 Office;
d)the fact that he was granted a Student Guardian visa on 22nd March 2007, arrived in Australia on 7th April 2007 and did not apply for a protection visa until 8th May 2007;
e)aspects of his claimed detention and ill-treatment in April 2000;
f)the fact that he produced a “Certificate of No Criminal Record” when he applied for a Student Guardian visa on 25th January 2007;
g)the fact that he denied having had difficulties obtaining a travel document to leave China when he had stated that he had applied for a passport in April 2000 and in February 2003 and was refused;
h)his claims to have participated in Falun Gong activities in Australia;
i)his claim that he seeks a protection visa because he was persecuted for being a Falun Gong practitioner when he gave no evidence of having been persecuted or harassed since 2000; and
j)his claim to have suffered financial loss since having been detained.[2]
[2] Court Book 109-114
The letter invited the Applicant to make comments in writing by 26th November 2007. In a faxed message sent on 20th November, the Applicant asked the Tribunal for an extension of time to reply to the s.424A letter. On 21st November, the Tribunal wrote to the Applicant, declining the request for an extension of time. The Applicant delivered a typed, three-page letter, to the Tribunal on 26th November 2007. The letter was in English, accompanied by a three page handwritten document in Chinese.
The Tribunal wrote again to the Applicant on 12th February 2008, in a further letter under the provisions of s.424A of the Act. The letter sought the Applicant’s comments on certain information that the Tribunal considered would, subject to any comments that he made, be the reason, or part of the reason, for deciding that he was not entitled to a protection visa. The information related to matters in the Applicant’s written statement to the Department of Immigration and Citizenship when he applied for a protection visa and the form he completed when he attended a medical examination, all relating to the Applicant’s claimed spinal problem.[3] The letter sought the Applicant’s comments by 6th March 2008.
[3] Court Book 123
The Applicant replied in a two-page typed letter delivered on 27th February 2008.
The Refugee Review Tribunal Decision
The Refugee Review Tribunal handed down its decision on 22nd April 2008, affirming the decision not to grant the Applicant a protection visa.
In its Decision Record, the Tribunal set out the Applicant’s claims and evidence, under the following headings:
a)Claims made to the Department;
b)The Applicant’s statement provided to the Department on 15 May 2007;
c)The Medical Examination conducted by a Medical Officer of the Commonwealth;
d)The Department interview held on 10 July 2007;
e)The Tribunal hearing held on 27 September 2007; and
f)The Tribunal hearing held on 16 October 2007.
Under the heading “The Tribunal hearing held on 16 October 2007” the Tribunal set out the contents of its s.424A letters to the Applicant dated 1 November 2007 and 12 February 2008. It also set out a summary of the Applicant’s comments in reply, received on 26 November 2007 and 27 February 2008.
Under the heading “Country Information”, the Tribunal also referred to some material about the practice of Falun Gong, including the five main Falun Gong exercises and the Falun Gong symbol or emblem.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the Applicant is a citizen of the People’s Republic of China, based on his passport and other evidence. The Tribunal summed up the Applicant’s claims in this way:
Essentially the claims of the applicant are that he is a Falun Gong practitioner and fears returning to China because he has been persecuted by the Chinese authorities and will be persecuted for his Falun Gong practice and activities if he returns to China.[4]
[4] Court Book 157
However, the Tribunal did not accept the key parts of the Applicant’s claims, particularly:
a)That he is a genuine Falun Gong practitioner;
b)That he has practised Falun Gong in Australia;
c)That he cannot or will not return to China because he fears persecution due to his Falun Gong activities or practice;
d)That he was persecuted or feared persecution in China because of his Falun Gong practice or activities;
e)That he was arrested or detained in April and July 2000;
f)That he was sent to brainwashing classes; or
g)That he was arrested, detained and tortured physically or mentally.
The reason that the Tribunal did not accept the Applicant’s claims is that it did not accept that he was “a witness of truth”.[5] Although the Applicant demonstrated some knowledge of Falun Gong at the Tribunal hearing, the Tribunal did not accept his evidence because of the “significant inconsistencies”[6] in it.
[5] Court Book 157
[6] Ibid
The Tribunal set out what it considered to be the significant inconsistencies in the Applicant’s evidence:
a)His claim about the first time he was detained in 2000:
His claim in his written statement to the Department was that he was tortured and scolded and whipped but to the Tribunal he made no such claims and contradicted his own written evidence.[7]
b)The Applicant’s description of the police who detained him in April 2000:
The Tribunal finds that this inconsistency, as to which police detained him in April 2000, is significant. In his written statement (to the Department) the applicant claimed that in April 2000 officers came to his work, showed their identification and said that they were from the ‘610 office’, but at the Tribunal hearing he stated that local police from the neighbouring county came to his work in April 2000 and did not show identification clearly.[8]
c)The Applicant’s claim about his spinal problem:
The Tribunal finds that the applicant’s omission to mention to a medical practitioner that he had had spinal problems for many years is significant and leads the Tribunal to conclude that the applicant is not telling the truth about his claimed injury.[9]
d)The Applicant’s claim about whether he had difficulties obtaining his passport:
In the application for a protection visa (lodged on 8 May 2007) he stated that had no difficulties obtaining a travel document (such as a passport) in his home country and he departed legally from his home country. Yet on 15 May 2007 the Department received a statement from the applicant who stated that he had applied for a passport in April 2000 and was declined because of a ‘failed political examination’ and applied again in February 2003 and was again rejected.[10]
[7] Court Book 158
[8] Court Book 159
[9] Court Book 160
[10] Ibid
The Tribunal then considered the Applicant’s evidence that he was detained on two occasions. The inconsistency in the Applicant’s accounts about his arrest and detention in April 2000 led the Tribunal to conclude that the detention in April 2000 did not occur.
The Tribunal did not accept that Falun Gong had not been banned until early 2000 in Fujian Province, where the applicant had lived before he came to Australia, and referred to Independent Country Information showing that Falun Gong had been banned in China in July 1999.
The Tribunal found that the Applicant’s evidence that he was arrested, detained and tortured in July 2000 was not credible and found that he was not so detained.
The Tribunal found that the Applicant was not a credible witness and not a genuine Falun Gong practitioner in either China or Australia.
The Tribunal considered and rejected the authenticity of a document that the Applicant had produced to the Tribunal, being a membership card certifying that he had attended a course and graduated. It referred to Falun Gong web sites indicating that Falun Gong does not have membership, never collects money from people and has no initiation or membership.
The Tribunal considered and rejected the evidence of the Applicant’s son. The Tribunal did not accept the son’s evidence because it had already found that the Applicant was not a Falun Gong practitioner in China or Australia. The Tribunal also noted that the Applicant’s son was about ten years old when he said that the Applicant disappeared on two occasions and found that the son’s evidence could not be relied on “when seen in the light of the significant inconsistencies in the applicant’s evidence”.[11]
[11] Court Book 165
The Tribunal was not satisfied on all the evidence before it that the Applicant had a well-founded fear of persecution within the meaning of the Convention and affirmed the delegate’s decision not to grant a protection visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 16th May 2008. The Minister filed a Response on 11th June 2008. The Applicant now relies on the second amended application that was filed in Court on the date of the hearing.
Applicant’s Submissions
The Applicant’s first ground claims that the Tribunal committed jurisdictional error in not acting judicially or in failing to accord procedural fairness in acting upon findings based on illogical or irrational reasons. The particulars of that ground are:
The RRT found that (CB 161.5):
‘This…lead[12] the Tribunal to conclude that the detention in April 2000 did not occur.’
The RRT found, illogically and/or irrationally contra to the above finding, that (CB 161.8):
‘The Tribunal finds that the applicant’s evidence that he would join people at an oval ‘leisurely practising Falun Gong’ so soon after his claimed release from his first claimed detention where he claimed that he had been detained, brainwashed and tortured, is not credible…It is inconsistent with the applicant’s claimed fear of being persecuted for reasons of being a Falun Gong practitioner that he forgot the dangers so soon after his claimed detention.’
[12] sic
And (CB162.5 – 162.8):
‘At the second Tribunal hearing, the Tribunal questioned the applicant about the implausibility of his claim that approximately two months after he was released from his first claimed detention, he wandered in to a gym and practiced Falun Gong in public…The Tribunal finds the applicant’s evidence is not credible. The Tribunal finds that he was not detained in July 2000 and was not detained at all for his involvement with Falun Gong.’
The Applicant’s second ground claims that the Tribunal erred in law in failing to take into account a relevant consideration for the reason that the Tribunal made findings that were illogical and/or irrational. The particulars of that ground are:
The applicant’s claim to have been detained and tortured in July 2000 was a relevant consideration in respect of the applicant’s claims of being at risk of persecution. The Tribunal did not take that claim into account as, illogically and/or irrationally, the Tribunal found that there was no detention of the applicant in July 2000.
The Applicant’s second ground is set in the alternative, in that if the court is of the view that the impugned findings of the Refugee Review Tribunal are based on an assumption that the Applicant was detained in April 2000, then the Tribunal erred in law by failing to take into account a relevant consideration. The particulars of that ground are:
The RRT presumed that the applicant was detained in April 2000. The RRT did not take into account, in respect of that presumption, whether the applicant was at risk of persecution if the applicant returned to China.
Counsel for the Applicant, Mr Killalea, submitted that the illogicality or irrationality on the part of the Tribunal is shown by its finding that because the earlier incident, in April 2000, had happened, the later incident, in July 2000, would not have happened. It is illogical or irrational for a Tribunal to determine the veracity of a claim by reference to the happening of an earlier incident, as if that earlier incident had happened where the Tribunal found that the earlier incident did not happen.
In respect of the first ground, counsel for the Applicant relied on the decision of the Full Court of the Federal Court in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs[13] at [16]-[24], where Lee, Moore and R.D. Nicholson JJ held that the Tribunal must act “judicially” and according to law.
[13] (2004) 80 ALD 568; [2004] FCAFC 74
Mr Killalea submitted that illogicality or irrationality is anathema to the exercise of the Tribunal’s decision-making power:
Failure of the Tribunal to act ‘judicially’ will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice.[14]
[14] WAIJ at [21]
Mr Killalea also referred the Court to the decision in SZLGP v Minister for Immigration & Citizenship[15], where Gordon J at [15] and [16] followed the decision in WAIJ. He submitted that the Tribunal made up its mind about the Applicant’s claims on the basis of its findings about those two detentions. The Tribunal found the detention in April 2000 did not occur. It is patently illogical, he submitted, to find that the Applicant had not been detained in April and then to go on to make a finding that the second detention, in July 2000, had not taken place on the basis that the first detention did exist.
[15] [2008] FCA 1198
Mr Killalea submitted that the second claim was not considered. There was an acknowledgement that there was a claim in July 2000 but it was not taken into account because it was dismissed. In his written submission he says in respect of ground 2:
The outcome of the illogical/irrational approach taken by the Tribunal is that the Tribunal[16] to take a relevant consideration into account being the applicant’s claim to have been detained and tortured, for reason of practicing Falun Gong, in July 2000.
[16] Sic – It would appear that the word “failed” has been inadvertently omitted.
As to the Applicant’s third ground, Mr Killalea submitted that if the Court were to be of the view that the impugned findings of the Tribunal are based on an assumption that the claimed detention did take place in April 2000, then the Tribunal has made its decision without making any finding as to any risk of persecution based on that assumption being true.
In other words, in the circumstance of the Tribunal having assumed the claimed detention in April 2000 to be true, for the purpose of determining a claim of whether a later detention was true, the Tribunal failed to take that claim into account in considering the risk of persecution to the applicant should he return to China.
Mr Killalea that, on each or any of the grounds referred to above, the error of the Tribunal constitutes jurisdictional error and the application ought to be remitted to the Tribunal for determination according to law.
Respondent’s submissions
Mr Markus, who appeared for the Minister, submitted that the Applicant’s submissions are an attempt at merits review. Administrative decision-makers are entitled to make findings of fact. Past events may be looked at as the best indication of what may happen in the future. The ‘crystal-gazing’ exercise on the part of the Tribunal is assisted by factual findings as to what happened in the past.
Once the Tribunal disbelieves a claim, it is not a failure to take into account a relevant consideration. Mr Markus drew the Court’s attention to the judgment of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[17], where his Honour said at 61, [5]:
As was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu,[18] to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.[19]
[17] (2003) 198 ALR 59
[18] (1999) 197 CLR 611 at 626 [40]; 162 ALR 577 at 587 per Gleeson CJ and McHugh J
[19] (2003) 198 ALR 59 at 61 [5]
Mr Markus submitted that the Tribunal did not accept that the Applicant was a witness of truth. The Tribunal found four significant inconsistencies in the Applicant’s claims and made its adverse credibility finding accordingly.
The Applicant claimed that he was detained twice in 2000. The Tribunal noted the inconsistency and the illogicality of the Applicant’s claims. Mr Markus submitted that there was no basis for the assertion on the part of the Applicant that there is anything illogical about the decision.
Mr Markus also pointed out that the decision in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs has been considered by Smith FM in SZDYI v Minister for Immigration & Anor[20] at [25]-[28] and distinguished on the facts.
[20] [2005] FMCA 971
As to the procedural fairness ground, Mr Markus submitted that s.422B of the Migration Act applies in respect of procedural fairness, referring to SZEQH v Minister for Immigration and Citizenship[21] at [27]-[31], where Dowsett J considered the operation of the section.
[21] [2008] FCA 1474
It was also submitted on behalf of the Minister that the assertion of a constructive failure to exercise jurisdiction adds nothing to the Applicant’s case.
Applicant’s submission in reply
In reply, Mr Killalea submitted that it is the manner of making the findings of fact that is under challenge. If findings of fact are based on irrational reasons they are open to be impugned. What Gleeson CJ said in S20/2002 is that there has to be an appropriate rubric for the findings of fact to be challenged. In this case it is, as was said in WAIJ at [21], a failure to act judicially.
Conclusions
The Tribunal decided to refuse the application primarily because it found that the Applicant was not a witness of truth.[22] It is well established that credibility findings are matters of fact and a credibility finding is a function of the primary decision-maker (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[23] per McHugh J at [67]).
[22] Court Book 157
[23] (2000) 168 ALR 407; [2000] HCA 1
The Tribunal based this finding on four “significant inconsistencies”[24] in the Applicant’s evidence. The third and fourth inconsistencies have nothing to do with the Applicant’s complaints about the alleged illogicality and inconsistency of the Tribunal’s findings about his two claimed periods of detention, in April and July 2000.
[24] Court Book 157
The third inconsistency to which the Tribunal referred was the Applicant’s claim about his alleged spinal problem. The very reason that the Applicant claimed that he took up Falun Gong was his spinal problem. He claimed that Falun Gong brought about an improvement but he still got the occasional ache when he undertook strenuous activity. However, when the Applicant went for his medical examination in conjunction with his application for a protection visa, the Applicant denied ever having had pain in the back, neck or joint.[25]
[25] Court Book 159-160
The Tribunal specifically raised that issue in its s.424A letter of the 1st November 2007, to which the Applicant replied on 26th November. The Tribunal raised the issue again, in its second letter of 12th February 2008, and the Applicant provided his comments on 27th February 2008.
The Tribunal found the Applicant’s omission to mention that he had had spinal problems for many years to be significant and concluded that the Applicant was not telling the truth about his back injury.[26]
[26] Court Book 160
The Tribunal also found the inconsistencies in the Applicant’s claim about whether or not he had had any difficulties obtaining a passport. On the one hand he claimed to have had no difficulty in that regard, when he applied for a protection visa, but he later claimed that he had been refused a passport twice, in 2000 and 2003.[27]
[27] Ibid
The Tribunal that issue in its s.424A letter of 1st November 2007 and the Applicant provided some comment on that matter in his written reply.
The Tribunal did not accept the Applicant’s evidence about this inconsistency.
The Applicant’s first ground of review claims that the Tribunal made an illogical finding that the second claimed period of detention, in July 2000, was not credible. The Tribunal concluded that the Applicant’s first claimed period of detention, in April 2000, did not occur.
The Applicant submits that the Tribunal’s finding that the second period of detention was implausible is illogical, because the Tribunal considered it implausible that someone who, on his own account, had only recently been released from detention two months before for public practice of Falun Gong, would go back to take part in Falun Gong exercises in public.
This is not, in my view, an illogical or irrational finding. All that the Tribunal was doing is taking the Applicant’s case at its highest, notwithstanding that it had already disbelieved his claim about his earlier detention. The Tribunal’s finding is a factual finding which is a matter for the Tribunal. It is of no significance that someone else hearing the claim on its merits might not have come to the same conclusion. The Tribunal’s finding was open to it on the evidence and the Court does not undertake merits review.
The Applicant’s first ground fails.
The Applicant’s second ground claims that the Tribunal failed to take into account a relevant consideration for the reason that it made findings that were illogical or irrational. The relevant consideration was the Applicant’s claim to have been detained and tortured in July 2000.
The Tribunal did take that consideration into account. It concluded that the detention did not happen. It is not the case that a matter can only be said to have been taken into consideration if is accepted.
The Applicant’s second ground fails.
The Applicant’s third ground, which is admittedly expressed to be in the alternative, claims that if the Court is of the view that the impugned findings of the Tribunal referred to in grounds 1 and 2 were based on an assumption that the applicant was detained in April 2000, then the Tribunal erred by failing to take into account a relevant consideration.
The Court is not of that view. The Tribunal stated:
The Tribunal does not accept as true that he was arrested or detained in April 2000 and July 2000 in China and does not accept that he was sent to brainwashing classes.[28]
[28] Court Book 157
The Applicant’s third, alternative, ground fails.
The Applicant has demonstrated any jurisdictional error on the part of the Tribunal. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) and consequently it is final and conclusive and not subject to certiorari or mandamus (s.474(1)).
The application will be dismissed with costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 10 November 2008
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