SZREB v Minister for Immigration
[2012] FMCA 757
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZREB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 757 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 424A, 474, Pt.8 |
| SZBYR v Minister for Immigration and Multicultural Affairs [2007] HCA 26 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 MIMA v Respondents S152/2003 (2004) 222 CLR 1 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 |
| First Applicant: | SZREB |
| Second Applicant: | SZREC |
| Third Applicant: | SZRED |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 336 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 August 2012 |
| Date of Last Submission: | 27 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2012 |
REPRESENTATION
| The applicants appeared in person with the assistance of a Gujarati interpreter |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The proceeding before this Court, commenced by way of application filed on 15 February 2012, is dismissed.
The first and second named applicants pay the costs of the first respondent fixed in the amount of $4,000.
NOTE: The bundle of relevant documents identified as ‘Court Book’ and filed on 16 March 2012 was tendered by the first respondent and marked Exhibit 1R.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 336 of 2012
| SZREB |
First Applicant
| SZREC |
Second Applicant
| SZRED |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 January 2012.
The applicants claim to be citizens of India and to be of Hindu faith and Hindu Chatriya ethnicity.
The first named applicant is the wife of the second named applicant and they are the parents of the third named applicant.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicants’ protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
On 29 November 2008, the applicants arrived in Australia having departed legally from India on a passport issued in her own name and a Subclass 573 Higher Education Sector (Student) visa.
On 23 May 2011, the applicants lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 22 July 2011, the Delegate refused the applicants’ application for a protection visa.
On 26 August 2011, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 17 January 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 February 2012, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.
The applicants’ application for a protection visa
The applicants’ protection visa application made substantive claims in respect of the applicant wife only and the applicant husband and their child, the third named applicant, had claims only as family members of the applicant wife.
The applicant wife provided a statement in support of her protection visa application in which she stated:
a)Her home city in India is well known for having many riots.
b)On 20 May 2011, she received a telephone call from her father-in-law telling her not to return to India due to a worsening situation caused by some Muslims.
c)Her father-in-law told her that their lives were in danger and that some Muslim people had attacked their house in India and injured him.
d)Her father-in-law said that these attackers had asked about her and her husband, who had been kidnapped in 2006.
e)The attackers came to the house because she had been working as a freelance crime reporter for the leading newspaper in her city.
f)While working as a crime reporter, she had been attacked five times because she witnessed the murder of two Hindus by Muslims.
g)These people had twice attempted to kidnap her, but they had been unsuccessful.
h)Her home city in India belongs to a Muslim king and has a large Muslim population.
i)In the suburb where she lived, Muslims disturbed most occasions, such as festivals, and targeted Hindu people.
j)Muslims run an anti-Hindu organisation and are very dangerous.
k)The suburb in which she lives is especially well known for having many riots.
l)In the past five years, almost 1500 people, mostly Hindu’s, have been killed in this area.
m)In her city and particularly in her suburb, to survive you have to pay protection money.
n)She always feared being kidnapped or raped, which are common occurrences.
o)The police and politicians are not doing anything to stop the Muslims because they are very powerful.
p)After the killing of Osama Bin Laden, the situation has become worse and the Muslims are ready to attack the Hindu minority in the city.
q)All the Hindus in the city live in fear of terrorists crossing the border from Pakistan, communal riots and bombings on trains, buses, shopping malls and other public places.
r)Her family’s lives are in great danger if they are returned.
The applicant wife sent a further letter to the Department expanding on her claims. In the letter, the applicant wife reiterated that some Muslim people tried to extort protection money from her in-laws. The applicant wife said her family has filed a complaint against those people but did not get any help from the police due to police corruption.
The applicants also sent various documents to the Department, including a First Information Report dated 1 November 2006 which appears to be a complaint to police of an extortion attempt and threat.
The Delegate’s decision
On 21 July 2011, the applicants attended an interview with the Delegate.
On 22 July 2011, the Delegate refused the applicants’ application for protection visas on the basis that the applicants are not persons to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 26 August 2011, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
The applicants provided further documents in support of the review application.
On 22 November 2011, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 20 December 2011 to give oral evidence and present arguments.
On 20 December 2011, the applicant wife and applicant husband attended the Tribunal hearing and gave evidence. The applicant husband made claims of his own to the Tribunal that his father was a prominent in the RSS (Rashtriya Swayamsevak Sangh). The applicant husband also claimed to be a member of the RSS and claimed that he and his wife were targeted by Muslims because of his and his father’s RSS activities. The applicant husband claimed that he was kidnapped for 48 in 2008 by Muslims because he had evidence relating to their illegal arms trade. The applicant husband claimed that the person who kidnapped him would seek to harm him if he returned to India.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“9. The RRT generally accepted that the incidents claimed by the applicant wife and applicant husband had occurred, and accepted that they had a subjective fear of harm. However the RRT concluded that the applicants were not of any adverse interest to particular Muslim people, or Muslims generally, in India. Therefore, their fear was not well-founded.
9.1 The RRT considered that the applicants had lived in India for two years after the claimed events, and found that if people had wanted to harm them they could have done so during that time.
9.2 The RRT also found that the applicants would be afforded a reasonable level of state protection from general sectarian violence in India.
10. In relation to the applicant wife:
10.1 The RRT accepted that in 2006 the applicant wife approached the authorities and the media to report crimes committed during sectarian violence. The RRT did not accept that the applicant wife was a person of interest to Muslims in India as a result of this, and that her fear in this regard was mere speculation (see [51]).
10.2 This view was reached on the basis that the incidents occurred two years before the applicants left India, and the RRT considered that if the applicant wife were a person of interest or concern to Muslims in India then they had sufficient time and opportunity to target her during that time.
10.3 The RRT considered the applicant wife's claim that she would be forced to give evidence against the people she reported, but found that she did not have any useful information about the persons involved in the violence (see [52]).
10.4 The RRT did not accept that the police had refused to protect the applicant wife because they were Muslim and she was Hindu. The RRT considered that the police were unable to assist her because she did not have any useful information on which they could act (see [53]).
10.5 The RRT considered the applicant wife's claim to fear harm from Muslims due to the applicant husband's association with the RSS, and because she is a Hindu. The RRT considered that if those Muslims intended to harm the applicants they could have done so in the time they were living in India. The RRT concluded that the applicant wife was not a person of interest to particular Muslims or to Muslims generally (see [54]).
10.6 In considering the more general claims advanced by the applicant wife that she was the victim of attacks and attempted rape and kidnap, the RRT found that those claims were greatly exaggerated and that the applicant wife was not a person of interest to Muslim people in India (see [55]).
11. In relation to the applicant husband:
11.1 The RRT accepted that the applicant husband and his father were involved in the RSS and that he was kidnapped in 2006 for ransom. The RRT was not satisfied that the kidnapping was motivated by the applicant husband's religion, the religion of the kidnappers, any knowledge the applicant husband had about the illegal arms trade, or his political opinion. The RRT found that the kidnapping was perpetrated by criminals trying to extort money from the applicant husband's family. The RRT found that the applicant husband was not targeted for a Convention reason, and that in any event the matter ended when he was released and he was not a person of interest following his release (see [57]-[58]).
12. The RRT considered the claims advanced by both applicants to fear harm as the result of their religion and the applicant husband's involvement with the RSS. The RRT found that the applicants were not at risk of harm when they left India in 2008 and that the situation has not changed (see [60]). The RRT accepted at [61] that the applicants were afraid to return to India, but was satisfied on the basis of country information that the applicants would have access to a reasonable level of state protection in India.
13. Finally, the RRT accepted that there was sectarian violence throughout India from which the state could not provide complete protection (see [62]). The RRT considered that the level of protection required was that it be 'reasonable', not perfect. The RRT was satisfied that the state in India provided a reasonable standard of protection.”
The proceeding before this Court
The applicants were unrepresented before this Court, although had the assistance of a Gujarati interpreter.
On 24 April 2012, the applicants attended a directions hearing before me. I explained to the applicants that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicants that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicants confirmed that they wished to continue with the application. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicants were referred to the Court’s Legal Advice Scheme for free legal advice. The applicants have participated in the Court’s Legal Advice Scheme and received free legal advice. The applicants were also provided with the contact details of legal services providers and interpreting and translation services in documents headed in their own language.
On 18 May 2012 the applicants filed an amended application and on 12 June 2012 filed submissions in support of their application.
Both applicants attended the hearing today, although the applicant wife spoke on behalf of all the applicants. The applicant husband was invited to say whatever he wished in support of the application but declined to do so.
The applicant wife confirmed that the applicants relied on the grounds contained in the amended application filed on 18 May 2012 as follows:
“The Tribunal exceeded or constructively failed to exercise jurisdiction in making the decision to affirm the decision of the respondent not to grant the applicant a protection visa; and
The Tribunal erred in law arriving at the decision to affirm the decision of the respondent not to grant the applicant a protection visa.
Particulars (as to each order sought and each ground above)
1. Subparagraph 65(1)(a)(ii) of the Migration Act 1958 (the Act) required the decision maker in respect of the applicant’s primary application for a protection visa to make a determination as to whether criteria for the grant of the visa prescribed by the Act or he regulations made there under (regulations) were satisfied.
2. The Act at the time of the Applicant’s review application to the Refugee Review Tribunal required the RRT to review the decision of the respondent and to that end the Act vested the RRT with powers and discretions conferred by the Act on he Respondent. The applicant claims that the Tribunal
3. That the decision of the RRT infected with error and consequently the RRT acted contrary to law, resulting in a constructive failure to exercise jurisdiction.
The Refugee Review Tribunal adopted an unduly harsh approach to the well-founded fear. The stringent application of the test may also result in error in assessment of finding in relation to well-founded fear.
Particulars:
The applicant claims that she was aware of the fear of the harm from Muslim extremists of Gujarat when she married with her husband in 2007. As stated earlier in the application for the protection visa is that one of the reasons to leave her country India was the fear persisted in her husband’s family. Her husband was kidnapped in November 2006 and she was married in May 2007. Applicant and her husband family organised student visa to continue her study in a safe environment of Australia. The Tribunal did not understand the circumstances in which the applicant decided to lodge protection Visa. The had fear of prosecution. If they would go back to their country they fear harm for her, her husband and the child born in Australia. The RRT failed to accord procedural fairness to the applicant as the RRT failed to put to the applicant for comment its adverse findings in respect of the evidence of the applicant’s evidence. The Tribunal accepted First Information Report related with the incident of Kidnapping in November 2006 but the Tribunal failed to account it as a evidence of danger to the life of her and her family.
Applicant claims that her protection visa application comes under new Migration Amendment (Complementary Protection) Act 2011 and her application should be assessed in view of that.
4. As the purported decision of the RRT was infected with error, the RRT did not have the jurisdiction to make such a decision. Consequently the purported decision was not a ‘decision’ for the purpose of the definition of a privative clause decision under s 474 of the Migration Act 1958 and therefore not such a privative clause decision.”
The grounds were interpreted for the assistance of the applicants and the applicants were invited to make submissions in support of each of the grounds and in support of the application generally. As stated above, only the applicant wife spoke on behalf of the applicants.
I explored with the applicant wife what the substance of her complaints were. I understand her complaints in the amended application to be encapsulated in the following:
1. That the Tribunal denied the applicants procedural fairness in failing to give to them for comment information that was part of the Tribunal’s reason for affirming the decision under review. The applicant wife confirmed that that information was the First Information Report dated 1 November 2006 given by the applicants to the Department in support of the applicants’ claims.
2. That the Tribunal had adopted an unduly harsh approach in considering whether the applicants’ fear of persecution was well-founded.
In relation to the first complaint, s.424A(3)(ba) of the Act clearly excludes from the obligations of s.424A of the Act documents given by an applicant that led to the decision under review. As the applicant confirmed, and as is clear from the bundle of relevant documents identified as Court Book tendered by the first respondent and marked Exhibit 1R, the First Information Report was a document that was given to the Department by the applicants in support of their protection visa application.
Further, to the extent that it was supportive of the applicant husband’s claim to have been kidnapped, the Tribunal accepted that the applicant husband was kidnapped for ransom in 2006. In the circumstances, that information is not capable of being information that is a rejection, denial or undermining of the applicants’ claims and for that reason also does not enliven s.424A of the Act (see SZBYR v Minister for Immigration and Multicultural Affairs [2007] HCA 26).
The first respondent’s written submissions suggest that this complaint was an assertion by the applicants that the Tribunal should have found that the kidnapping was evidence that the applicants were in danger. The applicant wife made no such complaint. However, if this was the complaint that she intended to make, it is a complaint that amounts to a disagreement with the findings and conclusions of the Tribunal.
The Tribunal found that the applicant husband was kidnapped by criminal who were seeking to extort money from his family and not for any Convention related reason. The Tribunal also found that, following his release, the applicant husband did not continue to be a person of interest to his kidnappers. The Tribunal found that there had been sufficient time and opportunity for the applicant husband to be targeted by his kidnappers in the two years from the kidnapping to when the applicant husband left India.
The Tribunal also noted that on the applicant husband’s evidence, the kidnapping was reported to police and the kidnapper arrested. The Tribunal found that the police did what they were required to do in relation to the applicant’s kidnapping and was not satisfied that the applicant was denied protection by the authorities in India following his kidnap in 2006.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. In the circumstances, the applicant wife’s complaints made to me invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, this complaint does not demonstrate any or any jurisdictional error on the part of the Tribunal.
The applicant wife’s second complaint asserts that the Tribunal adopted an unduly harsh approach in considering if the applicants fear was well-founded. Again, such a complaint invites merits review which this Court cannot undertake.
The Tribunal accepted that the applicants had a subjective fear of harm but found it was based on speculation and was therefore not well-founded. In short, the Tribunal was not satisfied that the applicants, or either of them, were of any adverse interest to Muslim people in India and, in any event, found that the applicants would be afforded a reasonable level of protection by the authorities.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 585 the majority stated as follows:
“A fear is ‘well-founded’ when there is a real substantial basis for it…a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”
The Tribunal found that the applicants fear was genuine but found there was no factual basis for that fear. The Tribunal found that the applicants had not been targeted or harmed from 2006 until 2008 when they left India because they were not persons of interest to Muslims in India.
In relation to state protection, the Tribunal noted that no country could guarantee that its citizens would be safe from violence at all time and in all circumstances. In support of that finding, the Tribunal referred to MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26] by Gleeson CJ, Hayne and Heydon JJ. The Tribunal noted that the majority judgment suggests that “an appropriate standard of protection requires the state to provide its citizens with suitable criminal law and the provision of a reasonable effective and impartial police force with a justice system which is consistent with international standards”. The Tribunal found that India provides such a standard of protection for its citizens and that the applicants would have access to a reasonable level of protection from the state.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, the applicant wife’s second complaint is not made out and does not demonstrate any jurisdictional error on the part of the Tribunal.
In the applicants written submission, filed on 12 June 2012, the applicants made a further complaint that “the Tribunal was predetermined to make judgment without accepting any further oral or written evidence submitted by the applicants”. To the extent that such a complaint suggests any bias on the part of the Tribunal, a claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicants does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
The applicants were directed on 24 April 2012 by me to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing, by 22 May 2012. The Order informed the applicants that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that if he wished to rely on a tape recording of the Tribunal hearing, he needed to give notice by 22 May 2012. However, no document was filed by the applicants either in accordance with those directions or otherwise.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Further, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the applicants at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence and noted the applicants’ responses. The Tribunal also put to the applicants independent country information before it and invited the applicants to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 27 August 2012
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