CMC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-09-23|Before: Mr J, Mortimer J

The appellant have leave to rely on the amended notice of appeal filed on 16 June 2020.
Leave be refused to the appellant to read and rely upon the affidavit of his brother, filed on 2 June 2020.
The appeal be dismissed.
The appellant pay the first respondent's costs of the application, to be fixed by way of a lump sum but excluding the costs of opposing leave to rely on the amended notice of appeal.
On or before 4 pm on 7 October 2020, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.
In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs be referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a delegate of the Minister not to grant the appellant a protection visa. For the reasons that follow, the appeal will be dismissed.

Background 2 The appellant is a citizen of Sri Lanka. On 8 June 2013, he arrived in Australia at Christmas Island. The evidence before the Court does not disclose what happened immediately after that, but on 16 May 2014 he was interviewed by an officer of the Department of Immigration and Citizenship at the Curtin Immigration Detention Centre in Western Australia. 3 On 19 July 2016, the appellant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa. Again, the evidence before the Court does not disclose what happened between the interview of 16 May 2014 and the appellant being invited to apply for a visa. 4 On 10 April 2017, the appellant applied for a Safe Haven Enterprise visa. He was assisted by a migration agent. 5 In support of his application, the appellant provided a statement that contained the following factual narrative: (a) He is a Tamil and a Hindu. (b) When he was 19 years old, he enrolled in an agricultural college in northern Sri Lanka. His studies were cut short six months later because he was being pressured to join the Liberation Tigers of Tamil Eelam (LTTE) and he feared for his safety. He returned to his parents' province. (c) In 1987, he moved to a different part of Sri Lanka to lease some land and become self-sufficient. After moving, he was caught up in hostilities between the Indian army, which at the time was occupying parts of Sri Lanka, and the LTTE. He was beaten by the Indian army. (d) His sister became an LTTE combatant and his family became known as an LTTE family. His parents supported the LTTE but feared for their daughter's life. (e) In 1992, he learnt that, after reaching the rank of lieutenant, his sister had been killed in combat. At his sister's funeral, his mother was presented by the LTTE with a commemorative photo with the heading "Bravery Salutation". (f) Having returned to his parents' province for his sister's funeral, he remained. When the war restarted, he was placed in an internal displaced persons camp, where he met his wife and started a family. (g) Conditions were poor in the camp, so in 2006 he decided to move his family to India. His move was motivated in part by the perception that he was from an LTTE family and the concern that he would never be safe in Sri Lanka. (h) His family was placed in a refugee camp in India. When the war finished in 2009, he did not return to Sri Lanka, because, having LTTE links, he was concerned for his safety. (i) The conditions in the refugee camp deteriorated. In 2013, he decided to come to Australia. 6 In his statement, he claimed that, if returned to Sri Lanka, he would be targeted because of his links to the LTTE. He stated that he believed there is still a record of his sister's involvement in the LTTE and the authorities, being corrupt, would be unwilling to protect him. He claimed he would be unable to move to a different area of Sri Lanka because he would be held in suspicion by the locals, even if Tamil, in part because he has an accent as a result of spending so long in India. 7 The appellant's submissions accompanying his visa application, which were prepared by his migration agent, particularised the claims made in the statement. The appellant submitted that, if returned to Sri Lanka, he would suffer systematic and discriminatory conduct on the basis of his imputed LTTE political opinion and membership of three groups; namely: • Tamil from the Northern Province of Sri Lanka; • Close family member of LTTE combatant; • Failed Tamil asylum seeker. 8 The appellant submitted that the persecution he would face included: • a threat to his life from the Sri Lankan authorities; • systematic and sustained violence at the hands of the Sri Lankan authorities involving possible abduction, detention, physical harassment and physical assault; and • serious harm including possible physical assault and arbitrary deprivation of life and likely death from these groups[.] 9 The appellant also made submissions based on general country information, in particular addressing the treatment of people with imputed LTTE political opinions and returned failed asylum seekers. 10 On 19 July 2017, the appellant was invited to attend an interview. The interview took place on 7 February 2018. In this interview the appellant responded to a number of questions asked of him by referring to what had happened to his younger brother, when his younger brother had attempted to return to Sri Lanka from India. He described his brother as having been continually harassed by the Sri Lankan Criminal Investigation Department, which led to him fleeing Sri Lanka and seeking asylum in Switzerland. This was referred to in the Authority's decision and is discussed further below. 11 On 6 March 2018, a delegate of the Minister refused the appellant's application. For the purposes of this review, it is not necessary to refer to the delegate's reasons.

The Authority's decision 12 On 14 March 2018, the delegate's decision was automatically referred to the Authority for review. The appellant provided no further information to the Authority. 13 On 16 April 2018, the Authority affirmed the delegate's decision. 14 Broadly speaking, the Authority accepted the appellant's factual narrative, although it did not accept that the appellant's parents supported the LTTE (at [14]). The Authority accepted that: (a) the appellant is a Tamil Hindu born in northern Sri Lanka (at [8]); (b) the appellant had to withdraw from college because LTTE members were trying to recruit him (at [13]); (c) the appellant's sister joined the LTTE, reached the rank of lieutenant, was killed in combat, and was honoured at her funeral "with a Bravery Salutation" (at [17]-[18]); (d) the appellant's family became known as an LTTE family (at [17]); (e) between 1995 and 2006, the appellant and his family resided in an internally displaced persons camp in Sri Lanka (at [19]); and (f) between 2006 and 2013, when he departed for Australia, the appellant and his family lived as refugees in India (at [23]). 15 Nonetheless, the Authority found that the treatment of Tamils in Sri Lanka is generally improving. At [28], it stated: I accept that the applicant and his family experienced some difficulties as Tamils and had to flee to escape the effects of the civil war in 2006, however the DFAT, UK Home Office and US Department of State reports indicates that the overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009. Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the Sirisena government came to power in 2015. 16 The Authority did not consider that the appellant would have difficulty resettling in Sri Lanka amounting to serious harm (at [32]). 17 The Authority found that the appellant was not of interest to the Sri Lanka authorities, whether by reason of his imputed LTTE political opinions or otherwise. At [34]-[35], it stated: There is no independent information before me to suggest that absent any other concerns, Tamil males from LTTE controlled areas who departed Sri Lanka and resided in India for a considerable period as refugees and then sought asylum in Australia or who have an Indian Tamil accent are imputed to have been involved with and/or supported the LTTE or considered to be anti-Sri Lankan government on this basis. I accept there is credible evidence of serious harm being perpetrated against certain Tamils associated with, or perceived to be associated with, the LTTE by the Sri Lankan authorities in pre and post-war Sri Lanka. However, I am not satisfied the applicant's past or present circumstances would lead to a real chance of any adverse interest or consequence, for the applicant on his return to Sri Lanka. I have accepted that the applicant is a male Tamil, who has previously resided in former LTTE controlled areas in the Northern Province. UNHCR supports that a person being of Tamil ethnicity from the North or the East would not in itself warrant international protection. I have accepted in 1989, on two separate occasions after an attack, the applicant along with others was questioned and physically assaulted before being released by the IPKF. I have also accepted the applicant supported the LTTE through the provision of food and that his sister was a member of the LTTE. The applicant's evidence is that his sister died in 1992 and he made mention of any claims that after her death he was harmed by the Sri Lankan authorities or any other groups or individuals. I have rejected the applicant's evidence that his parents were supporters of the LTTE and there is no other evidence before me that any of the applicant's other family members have any links or involvement with the LTTE or political organisations or Tamil separatism activities. The applicant's support to the LTTE and his sister's death occurred over 25 years ago. The applicant departed Sri Lanka at least 11 years ago. I have found the applicant was not of interest to the Sri Lankan authorities for any reason when he departed Sri Lanka using his own passport in 2006. The applicant has not claimed that he has been sought by the Sri Lankan authorities or any other groups or individuals since his departure from Sri Lanka. 18 At [36]-[37], the Authority referred to the claims the appellant had made in respect of his brother during his visa interview. These are the passages in the Authority's decision which are central to the appeal: At the protection visa interview, the applicant claimed when his brother recently returned to Sri Lanka from India he was only able to stay one week because he was continuously harassed by the Sri Lankan authorities who would visit where he was staying. He stated because of the harassment his brother left Sri Lanka and travelled to Switzerland. He stated he fears what happened to his brother will happen to him on return. The information before me is that it is those with certain actual or suspected LTTE profiles or involved in Tamil separatism maybe of adverse interest to the Sri Lankan authorities on return. I have found that arising from the applicant's and his family's past circumstances the applicant will not be imputed with a pro-LTTE or anti-Sri Lankan government political opinion. There is no evidence before me that the applicant's brother circumstances are any different to the applicant's. I do not accept the applicant's brother was harassed continuously on return to Sri Lanka and I am satisfied these claims have been contrived and provided to enhance the applicant's claims for protection. 19 The Authority did not consider that the appellant would face serious harm if returned to Sri Lanka on account of being a failed asylum seeker. It concluded that he did not meet the relevant visa criteria.

The Federal Circuit Court's decision 20 On 14 May 2018, the appellant filed an application for judicial review of the Authority's decision in the Federal Circuit Court. He was, at this point, self-represented. The grounds of review were (as they appeared): 1. Jurisdictional error. 2. Bias based on conscious or unconscious prejudie by ignoring relevant materials. 3. Identifying a wrong issue on a wrong question. 21 On 28 May 2019, the Federal Circuit Court dismissed the appellant's application. 22 The Federal Circuit Court's reasons note that at the hearing the appellant handed up a written submission, which substantially went to the merits of the Authority's decision. The Federal Circuit Court further stated that the appellant "declined the opportunity to make oral submissions in support of his case" (at [25]). 23 The Federal Circuit Court noted that the first ground was unparticularised, and found that the Authority's decision could not be impugned on the basis of unreasonableness, procedural fairness, or taking into account irrelevant material. As to the first of these, at [29], the Federal Circuit Court stated: The Authority provided logical and rational reasons for its findings and its ultimate conclusion that the applicant did not meet the statutory criteria for the grant of a protection visa. The logical reasons for its findings took into account country information and the applicant's evidence. Where the Authority did not accept the applicant's evidence, it provided reasons for its findings. 24 The Federal Circuit Court found that the second ground comprised two elements: bias (whether actual or apprehended) and ignoring relevant material. As to the former, the Federal Circuit Court found (at [40]): The Authority carefully and independently assessed the applicant's claims, as it was required to do, and its rejection of some of the applicant's claims does not indicate bias. There is nothing to indicate any pre-judgment on the part of the Authority. As the Authority was not satisfied that the criteria for the grant of the visa had been met, the appropriate order for the Authority was to affirm the decision under review. Accordingly, the Authority's decision to affirm the delegate's decision to refuse the applicant a protection visa does not indicate bias. (Footnote omitted.) As to the latter, the Federal Circuit Court found that "the Authority had regard to all relevant evidence provided" by the appellant (at [44]). 25 As to the third ground, the Federal Circuit Court found that the appellant had failed to specify what wrong issue the Authority had identified, or what wrong question it had asked, in making its decision (at [46]). In any event, the Federal Circuit Court found that the Authority's approach to the visa criteria which the appellant was required to meet "was entirely orthodox" (at [47]).

The proceedings in this Court 26 On 12 June 2019, still self-represented, the appellant filed a notice of appeal from the Federal Circuit Court in this Court. The single ground of appeal was (as it appeared): The Primary Judge didn't adequately examine the evident that was placed there by didn't exercise the Courts proper Jurisdiction. 27 The appeal was listed for hearing on 4 December 2019. At the hearing, the appellant appeared in person, assisted by a translator. During the hearing, the Court asked the Minister's counsel about [36]-[37] of the Authority's decision, extracted at [18] above, and asked what basis the Authority had for deciding that the appellant had fabricated his claims about his brother. 28 At this point, there was no record of the appellant's visa interview before the Court. It was not before the Federal Circuit Court. Consequently, the Minister's counsel sought the opportunity to take instructions, review the audio of the appellant's visa interview, and determine if further evidence needed to be filed. 29 On 12 December 2019, the Court ordered that the appellant be referred for pro bono legal assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) and that the Minister prepare, file and serve a transcript of the parts of the protection visa interview conducted by his delegate with the appellant on 7 February 2018 that were relevant to [36]-[37] of the Authority's decision. 30 On 16 December 2019, the Minister filed an affidavit annexing a transcript of "all portions of the interview that related to the Appellant's brother who only stayed one week upon his return to Sri Lanka". The Court expresses its gratitude to the Minister for undertaking to prepare the extracts of the protection visa interview. 31 On 30 January 2020, the Court was informed that counsel had accepted the Court's pro bono referral. 32 On 8 June 2020, the appellant filed an interlocutory application seeking an order that the appellant have leave to file and serve an amended notice of appeal raising grounds not raised below together with evidence in support by 9 June 2020. 33 On 15 June 2020, the Minister consented to the appellant being granted leave to file and serve an amended notice of appeal, together with fresh evidence, on the basis that it partially related to the concerns raised by the Court at the hearing on 4 December 2019, but without conceding that all aspects of the amended notice of appeal were arguable. Consequently, the Court granted the appellant leave to file the amended notice, and he did so on 16 June 2020. On the same day, the appellant filed a concise statement. 34 On 23 July 2020, the appellant filed a further interlocutory application seeking an order that the appellant have leave to rely on an unsworn affidavit of the appellant's brother dated 1 June 2020 and filed on 2 June 2020.

The application for leave to raise new grounds not raised before the Federal Circuit Court 35 By his amended notice of appeal, the appellant relies on one ground with six parts: The learned primary judge erred when he failed to find jurisdictional error on the part of the Second Respondent Authority when it: 1.1. rejected the Appellant's claim that his brother had been continually harassed upon his return to Sri Lanka; having 1.2. expressed its satisfaction that the claim was 'contrived' and provided to enhance the Appellant's claim for protection; when it was an integer of that claim that 1.2.1. the Appellant's family history would not have been erased in Sri Lanka; and 1.2.2. if forced to return he would be targeted, arrested, tortured, and possibly killed as he would be recorded as being from an LTTE family due to his sister's enlistment with the LTTE as a front line combatant; 1.3. without first having considered the exercise of the discretion reposed in it by section 473DC(1) of the Migration Act 1958 (Cth) to invite the Appellant to provide new information concerning the circumstances of the mistreatment claimed by his brother; and not having exercised that discretion; 1.4. to have held, in breach of the procedural fairness owed to the Appellant requiring him to be given the opportunity to provide new information, that the claim was 'contrived' and provided to enhance the Appellant's claim for protection; thereby 1.5. failing to have regard to a relevant consideration; and 1.6. falling into jurisdictional error. 36 The first issue for the Court to resolve is whether the appellant should be granted leave to rely on this ground of appeal.

The appellant's submissions 37 The appellant submits that he should be granted leave to rely on the new ground because: (a) he had no legal representation before the Federal Circuit Court; (b) the ground has merit; (c) it is in the interests of justice for leave to be granted; and (d) refusal of leave would cause substantial prejudice to the appellant. 38 He refers to the difficulties faced by unrepresented litigants. He submits his key claim - that he is a member of a known LTTE family who would be subjected to mistreatment if returned to Sri Lanka - is supported by his claim that his brother was continually harassed when he returned to Sri Lanka, and because the Authority should at least have made inquiries about this, the ground has merit. He also submits that the Minister faces no real prejudice if leave is granted.

The Minister's submissions 39 The Minister submits that leave to raise a new ground should only be granted when it is in the interests of justice. Referring to a number of authorities, including most recently Han v Minister for Home Affairs [2019] FCA 331, the Minister submits that to grant leave in this case would undermine the scheme of judicial review and appeal established by the Migration Act 1958 (Cth) and accordingly it is not in the interests of justice. The Minister also submits that the ground has no merit and, finally, that he will suffer prejudice if leave is granted, because there is no appeal as of right to the High Court, as there would have been from the Federal Circuit Court to this Court if the ground the appellant now seeks to rely on had been brought forward at first instance.

Resolution 40 I have set out my views about the correct approach to granting leave to raise a new ground on several occasions, and will not repeat them all here. It is sufficient to refer to my reasons in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [19]-[27] and CVV16 v Minister for Home Affairs [2019] FCA 1890 at [53]-[58]. 41 However, I would also repeat what I said in CVV16 at [54]: The Minister submits that what is being done by the appellant amounts to a "whole new trial", on "new evidence" and this should not be allowed to occur in an appeal. This Court is not, the Minister submits, the trial court, which would have been the place to raise such arguments. In principle of course, and in a perfect world, the Minister may well be correct. Of course arguments should be put and tested for the first time at trial. However, justice is not administered within a perfect world. It is administered, especially in the migration jurisdiction, within a world of inequalities and vast disparities in understanding and access to resources. 42 The present case is an example of that. The appellant did not have the benefit of legal representation in the Federal Circuit Court, nor initially in this Court. He was required to struggle in a legal system with which he had no familiarity, and in a language with which he had no familiarity, operating through an interpreter. The fact that this is the predicament of a majority of migration applicants in the Federal Circuit Court and in this Court should not inure the Court to the inequalities and disadvantages which it presents. In this situation, it is not necessarily appropriate to apply, without modification, principles developed in an adversarial system that is accustomed to all parties being legally represented, or makes that assumption. Especially so when what is in issue is the lawfulness of the exercise of public power, in circumstances where ultimately people's liberty is at stake. If a broad and equitable system of publicly funded legal representation were available in the first instance migration judicial review jurisdiction of the Federal Circuit Court, then this Court could consider issues of leave to raise new arguments on appeal from that court with a different perspective on where the interests of the administration of justice might lie. However, there is no such system. 43 A potential - rather than actual - prejudice to the Minister is the absence of a right to appeal from the Court's orders at appellate level. It is not actual prejudice because it is premised on the ground succeeding; the Minister's counsel properly accepted as much. 44 I accept the absence of a right of appeal is a potential prejudice to be borne in mind. That said, the Minister has no personal interest in the proceeding, unlike the appellant. Neither the Minister's liberty nor his future are at stake, as is the case for the appellant. The Minister has an interest in the due administration of the Migration Act, according to law. The Court can take judicial notice of the fact that the Minister challenges decisions he considers to be incorrect, or which result in an administration of the legislative scheme with which he, or his department advising him, disagree. In doing so, he does not confine himself to challenging those decisions only in the proceeding in which the issue is determined. He seeks out other suitable proceedings for continuing to challenge a legal issue. Putting to one side whether that is the conduct of a model litigant, or engages some of the issues about the relationship between the executive and the judiciary which were discussed by Colvin J in BFW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 at [5]-[17], it is apparent that even if the appeal is allowed, the Minister decides to seek special leave to appeal and leave is refused, the Minister will have the opportunity to challenge any legal question in other proceedings, as is currently his practice. If the error is one confined to this appeal, and special leave is refused, then that is no more than a consequence of the working out of the Australian judicial system, and is not a prejudice. 45 In circumstances such as these, and in particular when the Court has made a pro bono referral in favour of the appellant, it would frustrate the administration of justice contemplated by such a referral for a legal representative to be confined to grounds drawn by a lay person. There has been no undue advantage taken on behalf of the appellant of the opportunity to file an amended notice of appeal, and the ground is confined to an issue which was touched on at the earlier hearing. This is a factor favouring the grant of leave. 46 However, as I have explained in previous decisions, in my opinion in these circumstances, given what is at stake for the appellant, the real question is whether the new ground is arguable. If it is, and other factors do not outweigh this, it does not undermine the system of judicial review and appeal to allow the ground to be argued; it supports it. The system of judicial review and appeal as a whole is designed to ensure, as does s 75(v) of the Constitution, that executive action and administrative decision-making is undertaken in accordance with law. Allowing an arguable ground of appeal to be developed that a decision was made contrary to law, where no other factors outweigh that occurring, advances the administration of justice rather than detracting from it. 47 The decision in Han is not, in my opinion, in conflict with the approach I have outlined. As the Court's reasons disclose, the situation was very different. A key difference was that the appellant had been legally represented below. However, there were a number of other factors which led the Court to see the proposed new ground as having involved some forensic decision-making on behalf of the appellant's legal representatives. Many of the Court's comments about potential undermining of the system as between first instance judicial review and the appellate jurisdiction need to be considered in the context in which they were made. 48 As my reasoning below indicates, the ground of appeal was well arguable. The applicability of the procedural fairness cases upon which the appellant relied to Pt 7AA required consideration. The legal unreasonableness ground was well arguable, and one which I carefully considered before rejecting. The potential prejudice to the Minister in only having access to a special leave application should the appeal succeed was comfortably outweighed in the present circumstances. The existence of a pro bono referral was also an important factor. 49 Leave to rely on the amended notice of appeal will be granted. I consider it was unreasonable for the Minister, in the circumstances of this case and as a model litigant, to oppose the grant of leave to rely on the amended notice of appeal. The Minister should not have his costs in respect of the amended notice of appeal.

The application for leave to adduce new evidence 50 The new evidence sought to be relied on is, as I have said, an unsworn affidavit of the appellant's brother dated 1 June 2020 and filed on 2 June 2020. Broadly speaking, the affidavit supports the appellant's claim, recorded at [36] of the Authority's reasons and rejected at [37], that the appellant's brother returned to Sri Lanka for one week and was harassed continually. The appellant's brother deposes to his treatment at the hands of authorities and people in civilian clothes who he assumed were from the Sri Lankan Criminal Investigation Department.

The appellant's submissions 51 The appellant submits that this Court has a wide discretion under r 36.57 of the Rules to allow fresh evidence on appeal. He submits that the evidence is not being adduced only now for want of reasonable diligence: in the Federal Circuit Court, the appellant was hampered by his lack of legal representation and fluent English and it was not obvious to him that further evidence of his brother's experience might assist his case. 52 The appellant submits that the evidence bears on the question whether the Federal Circuit Court erred in failing to find that the Authority fell into jurisdictional error in finding that his claims in relation to his brother were contrived. The evidence is said to be of such relevance and weight that, had it been before the Authority, the conclusion that the claims were contrived could not have been reasonably open.

The Minister's submissions 53 The Minister submits that the affidavit is not relevant to the determination of the appeal precisely because it was not before the Authority. He submits that it might only be considered to have marginal relevance to the appeal for the purposes of assessing materiality.

Resolution 54 The appellant's brother lives in Montreal, which, it appears, was in lockdown when the affidavit was prepared. In according with [4.2] of the Court's Special Measures in Response to COVID-19 information note, there is no difficulty with the fact that it is unsworn. 55 I accept the Minister's submission. The reliability of the brother's account, and of the appellant's account, were matters for the Authority. While I accept the content of the brother's affidavit illustrates that there was a more detailed account which could have been given to the Authority, and might in that way be relevant to the question whether any error of the Authority was "material", in the end I have not had to deal with materiality. 56 Even if a determination on materiality had been required, this is not the kind of situation where on established principles I would have had any difficulty in concluding on the existing evidence that the error was material to the outcome of the review. The Authority's findings about the situation in Sri Lanka having changed, and any past dangers to the appellant because of his family being known as an LTTE family (as the Authority found) having passed, on the Authority's findings, the question whether a member of his family had very recently been subjected to considerable sustained harassment on return to Sri Lanka such that he was forced to flee overseas again could only be described as a critical issue in the Authority's review. If a legal error was made in the Authority's approach to this issue, I would have concluded the appellant was denied the possibility of a different outcome. The affidavit would not have been necessary, and given its tendency to suggest the Court was reviewing the factual situation for itself, it would not have been appropriate to exercise the discretion in s 27 of the Federal Court of Australia Act 1976 (Cth) to permit the appellant to read it.

The interview with the delegate 57 Before setting out the parties' submissions on the appeal, it is necessary to refer to the parts of the appellant's interview with the Minister's delegate which are central to his amended notice of appeal. As I have noted, following the first hearing on 4 December 2019, the Minister filed an affidavit annexing a transcript of "all portions of the interview that related to the Appellant's brother who only stayed one week upon his return to Sri Lanka". The affidavit also annexed a transcript of "all portions of the interview where the Appellant referred to his brothers collectively". 58 The transcript is as follows: At 28 minutes and 30 seconds into the interview OFF: Why did your family leave Sri Lanka in 2006? At 29 minutes and 1 second into the interview INT: My sibling was died while was in the LTTE, however, my other siblings, they also fled. They went to Canada, Switzerland and also to India. Then I thought it won't be safe enough for my family. Then I also left the country. OFF: This sibling which was with the LTTE, is that the sister who's death certificate we looked at previously? INT: Yes, yes. At 39 minutes and 50 seconds into the interview OFF: And the one in Switzerland? INT: He recently went there. Now he is living in the refugee camp. At 44 minutes and 45 seconds into the interview OFF: But part of the assessment that I must make, I must determine whether or not you are able to return to Sri Lanka. OFF: Why would you now be unable to return to Sri Lanka? INT: If I return back to Sri Lanka, I'm a little bit of concern I may be questioned by the CID because brother who recently left Switzerland and before he left Switzerland, in fact he returned to Sri Lanka. I think he was staying there for one week and during that time he experienced a lot of problems by the CID and that was the reason he turned back and went to Switzerland. OFF: What issues did your brother face in Sri Lanka for that week? INT: In fact he returned from the Indian refugee camp to Sri Lanka. When he went there, and he managed to stay with some of his cousin brothers. And while he was staying there he was continuously harassed by the authorities. They even visited to his accommodation in Sri Lanka. Unfortunately as he left the Indian refugee camp, his registration also cancelled so he couldn't be able to return back to India also. Therefore he left to Switzerland. OFF: What do you think would happen if you were to return to Sri Lanka? INT: I think I will be exposed to the same situation what my brother had in. On the top of that, I might even forced to lose my wife and the children also. At 53 minutes and 40 seconds into the interview OFF: My understanding is that the army is not operating in the same capacity as it was during the war. OFF: And that Tamils are able to go about their daily business in Jaffna. INT: I'm accepting your point, but on the other hand, as I already said, what exactly happened to my younger brother, so now I'm thinking a similar thing might happen to me. At 58 minutes and 30 seconds into the interview OFF: Sorry, are you talking about when you were living in Sri Lanka or are you talking about if you were to return. It wasn't very clear in your response. INT: I am referring both. In fact while I was living there, we were living in an area that was controlled by the LTTE and we were supporting to them at the time. Now if I return back, there is no more LTTE, but I'm sure the intelligence group, they should have some information about us. So they probably cause some trouble to our life. OFF: What sort of information do you think the intelligence people have about you? INT: As you know, one of the family members sacrificed her life to the LTTE and while we were living there and we were also supporting to the LTTE. So that's why I am very much concerned about that. Apart from that, recently, I already said what happened to my younger brother also. So that's why I am very much hesitant to return back. At 1 hour, 14 minutes and 30 seconds into the interview OFF: Okay. The time is now 10.57. You've now had an opportunity to have a discussion with your representative. Is there anything else you would like to add? INT: If I return to my country, I still fear I may be subjected to a fear of persecution because my brother also had the same experience. INT: As you know, my sister who was in the LTTE, she sacrificed for the country and therefore we also forced to support to them. So we were also living in their control area. So therefore I don't think it is advisable that we can return back to Sri Lanka. OFF: Anything else? INT: Because of this main problem only, my siblings also fled the country. Now they are living in different country. On the other hand, that is also the reason that I in the end fled the country now I am in here. At 1 hour and 18 minutes into the interview OFF: Can I just clarify, you said that you feared returning because you feared persecution in the same way as your brother. I just want to clarify, is this what you have already described in your interview today? INT: Because my brother visited Sri Lanka nearly one year ago. That time only he experienced this problem. I only came to know my brother had this issue through him only.

The appellant's submissions 59 The appellant submits that the Federal Circuit Court erred by failing to find that the Authority's decision was affected by jurisdictional error. 60 The appellant submits that, at [37] of its reasons, the Authority reasoned that: (a) there was no evidence before the Authority that the appellant's brother's circumstances were different from the appellant's; therefore (b) the appellant's brother cannot have been continually harassed when he returned to Sri Lanka; therefore (c) the appellant must have lied about his brother's experience. 61 The appellant submits that this "logic is obviously faulty" and, although he does not raise an explicit unreasonableness ground in his amended notice of appeal, he makes a submission to that effect, which was confirmed in oral submissions as I outline below. 62 The appellant also submits that the Authority denied him procedural fairness. Relying on this Court's decisions in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 and Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; 247 FCR 404, he submits that the Authority should have invited him to comment on the proposition that he had lied about his brother, under s 473DC of the Migration Act, which provides: Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 63 The appellant acknowledges that s 473DC(2) of the Migration Act means the Authority has no duty to get, request or accept new information, but he submits that, while the Authority may not have a general duty to get, request or accept new information, in the circumstances of this case, it erred by failing to exercise the power conferred on it by s 473DC(1). He submits that, had the Authority requested and received new information under s 473DC, it would have been able to consider that information under s 473DD. I have assumed the "new information" referred to is a response from the appellant about why the account he gave of his brother's experiences on return to Sri Lanka was not a lie.

The Minister's submissions 64 The Minister submits that the amended ground of appeal is unclear but appears to contain: (a) an allegation that the Authority failed to take into account one or both of two relevant considerations, specifically: (i) it failed to consider that the appellant's brother was harassed when he returned to Sri Lanka; and/or (ii) it failed to consider whether to "get" new information under s 473DC; (b) an allegation that there was an error in the fact-finding process of the Authority; and (c) an allegation that the Authority denied the appellant procedural fairness. 65 The Minister submits it is clear the Authority did consider the appellant's claim that his brother was harassed when he returned to Sri Lanka. The Minister also submits that the appellant has failed to prove (as the Minister contends he must) that the Authority did not consider whether to get new information under s 473DC and that, on the contrary, the Authority's statement that "[n]o further information was obtained or received" suggests that it did consider whether to exercise the power, and elected not to. 66 As to the allegation that there was an error in the fact-finding process of the Authority, the Minister submits that there was a logical and rational basis for the Authority's finding that the appellant had lied about his brother: namely, so it seems, that the appellant himself was able to leave Sri Lanka and had not been sought by Sri Lankan authorities since his departure. 67 In the alternative, the Minister submits that the Authority's finding that the appellant lied was not a finding as to a "jurisdictional fact", as it must be, on the Minister's submission, for the Authority to have fallen into jurisdictional error. The Minister submits that where the statutory task of the Authority was to determine whether it was satisfied that the appellant met the visa conditions, only findings on "critical questions" are properly characterised as findings on jurisdictional facts. The finding that the appellant lied, the Minister submits, was not such a finding. 68 The Minister further submits that if the Authority did err in relation to a jurisdictional fact, the appellant has failed to discharge his onus of showing that the error was material, in the sense explained by the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 and Minister for Immigration and Citizenship v SZMTA [2019] HCA 3; 264 CLR 421. 69 As to the appellant's procedural fairness argument, the Minister submits that it is settled that the power under s 473DC is to be exercised reasonably, but what is reasonable has to be determined taking into account the scheme of the Act, and in particular Pt 7AA. Here, the Minister submits it is relevant that, by default, the Authority is to conduct its review on the papers, and it was the appellant's responsibility to provide information sufficient to establish his claim. 70 The Minister submits that the Authority had before it information about the appellant's brother, and it was not the Authority's responsibility to seek out further information about that claim. Relying on this Court's decision in WAJR v Minister for Immigration and Indigenous Affairs [2004] FCA 106; 204 ALR 624, the Minister also submits that the Authority was not obliged to seek out comment on its subjective appraisal of that claim.

Resolution 71 In substance the appellant advances several different characterisations of a jurisdictional error affecting the Authority's finding at [37] of its reasons that the appellant had "contrived" the account of what occurred to his brother on a recent return to Sri Lanka. Although the written submissions might have been understood to range more widely, at the start of his oral argument, counsel for the appellant helpfully clarified that the argument was put in two ways. 72 First, the appellant submitted that in circumstances where the Authority was minded to make a finding equating to a finding of fraud, or the telling of lies to the Authority, and no such finding had been made at delegate level, the Authority was obliged to exercise its powers under s 473DC. A failure to do so would deny the appellant procedural fairness. 73 Second, the appellant submitted the Authority's failure to exercise its power under s 473DC was, in these circumstances, legally unreasonable. In that respect, the appellant relied on the Full Court's decision in DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134.

Procedural fairness argument 74 The appellant relies on the seriousness of the Authority's finding that he had contrived his brother's story. He contends that, because the finding was serious, the Authority was obliged to draw the matter to the appellant's attention in a way it might not have been in respect of a less serious finding, especially given there were no findings (adverse or otherwise) about this issue by the delegate. 75 As I have noted, the appellant relied on several decisions to support this approach including WAHP, where Lee J dealt with a finding about fabrication of a document. His Honour referred to the cautionary approach described by the High Court in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 to making findings about risks of future persecution based only on a decision-maker's present persuasion as to whether such persecution has occurred in the past, endorsed by the English Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449. At [35]-[36], Lee J said: In its treatment of the issue the Tribunal failed to act according to law. There was no material before the Tribunal on which it could make the finding that the letter from the mother had been "fabricated". The statement by the Tribunal that the letter had been "fabricated" was a bare assertion. The Tribunal did not identify whether the act of fabrication consisted of false statements made by the mother, or the presentation of a document purporting falsely to be a letter from the mother. Furthermore, it was obvious in the circumstances that the Tribunal should have given an appellant to opportunity of comment upon, and deal with, the Tribunal's assertion that the letter had been "fabricated". (See: WACO v Minister for Immigration and Multicultural Affairs [2003] FCAFC 171 at [54]-[56]); Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at 382, 383, 388; WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 at [52]-[55]; WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 at [51]-[56]). 76 This is the appellant's argument, although Lee J was in dissent in that case as to the outcome. The majority (Carr and Tamberlin JJ) found the Tribunal had put the "critical issues" to the appellant during the Tribunal hearing. At [59], their Honours made it clear they did not consider the fabrication finding involved an adverse credibility finding against the appellant, the letter being from a third party in Afghanistan after the appellant had left. No different legal principles were expressed by the majority. 77 One passage from French J's decision in WAJR (at [56]) should also be extracted to illustrate the appellant's point: It may be that procedural fairness would not require the tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. But where as here, there is a clear implication in the tribunal's reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment. I took a similar approach in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912; BC200304925. 78 The principles outlined by Lee and French JJ in a general merits review environment are well accepted. It is difficult to conceive of circumstances where a general merits review tribunal which conducts oral hearings could make such a serious finding without having given the person to whom the finding was directed an opportunity to be heard on whether such a finding should be made, at least where it was not already obvious on the material that fabrication or contrivance of evidence or documents were in issue. 79 The more difficult question is how, if at all, these principles are applicable to reviews under Pt 7AA. In my opinion, while Pt 7AA evinces an intention to afford procedural fairness to review applicants by way of additional opportunities to be heard, those opportunities are circumscribed in such a way that it is not possible to import into the scheme of Pt 7AA general statements of principle from the kinds of authorities to which the appellant referred. The premises are too different. 80 In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22], the plurality described the "primary rule" applicable to the Authority's review under Pt 7AA: Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. 81 The extrinsic material makes it clear that a policy decision was taken, to be given effect in the terms of Pt 7AA, to limit the circumstances in which the Authority can consider new information: see Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [909]. Contrary to the Minister's submissions on this appeal, any response which the Authority might have invited the appellant to give would have constituted the Authority getting "new information" within the meaning of s 473DC(1). 82 The parameters for the Authority's review task are set by the "primary rule" in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the "primary rule" in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task. Relevantly on this appeal, the "exception" is that contained in s 473DC(3) (extracted at [62] above). 83 An "exception" such as this is arises in the context of Parliament recognising, within a process otherwise confined to material before the delegate and without oral hearings, that in some circumstances it will be appropriate for a person to be given a more fulsome, or a new, opportunity to be heard. It is a provision concerned, albeit in a carefully circumscribed way, with procedural fairness: see my observations in CWS16 v Minister for Immigration and Border Protection [2019] FCA 1414 at [25]-[26], and the authorities there referred to. However, the mechanism chosen and the preconditions imposed by s 473DD mean that no obligation of the kind for which the appellant contends can be read into Pt 7AA. 84 That is, contrary to the appellant's submissions, it is not possible to construe s 473DC(3) as imposing a general obligation on the Authority to issue such an invitation to a person on all occasions where it is considering making a finding, of which the person has no notice (actual or constructive), that the person has engaged in fraud, or lied to the Minister and to the Authority, or some other similarly serious finding. Apart from anything else, and even if one took the proposed response from a review applicant as the "new information", such an approach would cut across, and be inconsistent with, s 473DC(2) and s 473DD. The appellant's contention would involve treating all circumstances where the Authority proposes, for the first time in relation to an issue, to make a finding that a visa applicant has lied, or has fabricated a document, as "exceptional circumstances". It would require the conditioning of the exceptions in s 473DC and s 473DD with an obligation to exercise those powers, not because of some matter particular to the review concerned, but because of the character of the proposed finding or approach to be taken by the Authority. I do not consider the text, context and purpose of Pt 7AA supports such an implication. 85 This aspect of the appellant's contentions must be rejected.

The legal unreasonableness argument 86 To reject the first way in which the argument is put is not to remove all constraints the law imposes on the Authority if it is minded to make serious findings of dishonesty against a review applicant. 87 The Minister properly accepted that the power in s 473DC(3) is conditioned by a requirement that it be exercised reasonably: see Plaintiff M174 at [21]. The Full Court confirmed as much in DPI17 at [41]-[43], and see my reasons in DPI17 at [79]-[90] about the connection between legal unreasonableness and denial of procedural fairness. 88 In CWS16 at [26], I explained why I was not persuaded that a formulation such as "plainly unjust" should be used in judicial review for legal unreasonableness: In terms of the correct approach to legal unreasonableness, I also adhere to and adopt what I said in DPI17 at [110]-[111]: 110 For my own part, and with great respect to those who have a different view, until the law about legal unreasonableness in Australia becomes more developed in its application and in its nuances, I prefer to restrict my articulation of principle to asking whether the exercise of power or performance of a function is such that no decision-maker, acting reasonably, could have approached the exercise of power or performance of the function in that way, in the statutory context and factual circumstances as they were at the relevant time. To my mind, adhering to that kind of approach emphasises, as Gageler J said in Li at [113], the stringency of the test, and the fact that judicial determinations of legal unreasonableness have, in practice, been "rare". Of course, the descriptor "rare", in the migration jurisdiction of the Federal Circuit Court, this Court and the High Court, must be applied taking into account the thousands of cases determined each year. In that context, the number of times a legal unreasonableness ground is upheld remains, in my view, "rare". 111 Justice Gageler repeated observations to this effect in SZVFW at [52], in terms with which I respectfully agree: Expression of the standard of legal reasonableness in terms of the minimum to be expected of any "reasonable repository of the power" in the circumstances of the impugned decision or action has the benefit of emphasising both the "extremely confined" scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words. (Footnotes omitted.) 89 I adhere to those views and apply them here. 90 Therefore, the question is whether no Authority, acting reasonably, could have made a finding such as that at [37] of the Authority's reasons without exercising the power in s 473DC(3) to invite the appellant to respond to, or comment on, the proposition that he had "contrived" the whole account of what happened to his brother in 2016.

Did the Authority consider whether to exercise the power in s 473DC(3)? 91 A factual dispute between the parties was how the Authority's reasons at [4] should be understood. To provide proper context, [3] and [4] of the Authority's reasons, under the heading "Information before the IAA", stated: I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act). No further information has been obtained or received from the applicant. 92 The Minister contends [4] should be understood as the Authority having turned its mind to its powers under s 473DC and having decided not to exercise them. He contends this was the conclusion reached by the Full Court in ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [48], on very similar language. The appellant contends the sentence cannot be read in that way and the correct conclusion is that the Authority did not consider whether to exercise its power under s 473DC, but (he contends) it was obliged to do so in the circumstances, if it was acting reasonably. 93 In ASB17 at [46]-[49], the Full Court stated: The Minister does not concede there was a failure by the Authority to consider whether or not to exercise the power in s 473DC. Therefore, the first step on which the appellant must succeed is to prove the Authority failed to consider whether or not to exercise its power under s 473DC. The appellant did not point to any positive evidence to suggest there had been such a failure. The Court was asked to infer the failure from the absence of anything in the Authority's reasons which referred to consideration of the exercise of power. In this case, we do not consider the Authority's reasons are entirely silent on this issue. There is an indication in the Authority's reasons that it may well have considered whether to exercise the power. That indication is found in [3] of its reasons, where the Authority states: No further information was obtained or received. (Emphasis added.) The use of the word "obtained" may suggest the Authority member turned her mind to whether or not to exercise the power in s 473DC. In the absence of any other evidence to support the inference for which the appellant contends, and in the absence of concession by the Minister, we consider the way in which [3] is expressed is a sufficient basis to conclude the appellant has failed to prove it is more likely than not that the Authority did not give any consideration to whether or not to exercise the power in s 473DC. 94 While it will generally not be appropriate to apply reasoning from one case to another case in this jurisdiction, on this particular issue, I cannot see any basis to take an approach different to that taken by the Full Court in ASB17. 95 Independently of ASB17, I also consider it is correct to characterise the statement by the Authority in its reasons that "[n]o further information has been obtained or received from the applicant" as a statement that the Authority turned its mind to whether to obtain new information from the appellant, and decided not to. 96 I find the appellant has not proven that the Authority failed to consider whether to exercise its power under s 473DC(3). But this was not the appellant's primary point: his primary point was that it was legally unreasonable not to exercise the power. He contends that whether or not the Authority considered doing so was, to that extent, subsidiary.

Would any reasonable Authority have exercised the power in s 473DC(3)? 97 The Minister did not submit a legal unreasonableness argument of this kind was not available, and while the argument in DPI17 went to the Authority's consideration whether to exercise the power, rather than its exercise, I accept it is an available argument. It may, however, be more difficult to make out than the kind of argument in DPI17. 98 As the plurality explained in Plaintiff M174 at [17], the Authority's function or task is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. 99 While I accept that many decision-makers, acting reasonably, would not make a finding of the kind in [37] of the Authority's reasons without having sought an explanation from the person who was to be subject to such a finding, I am not satisfied the threshold for legal unreasonableness is met. Although the Authority had, by and large, accepted the appellant's account of his past experiences in Sri Lanka, it had not accepted everything he said. As the Minister contended, the Authority had disbelieved the appellant's claim that his parents were supporters of the LTTE: see [14] of its reasons. It found this aspect of his account to be "vague and unsubstantiated". There was no challenge to that finding. The Authority had accepted the appellant's account of how he and his family were able to leave Sri Lanka for India legally, on their own passports, and that his sister (who it accepted was an LTTE member) had died 14 years before the appellant and his family left for India. 100 The Authority then found (at [24]): The applicant had not claimed that he was any interest to the Indian authorities for any reason. The applicant's own evidence is that he has not committed any criminal offences or the subject of an arrest warrant. I am satisfied that at the time of the applicant's departure in 2013 he was not of any interest to the Indian authorities or that he was of any interest to the Sri Lankan authorities or any groups or individuals because of his presence or activities in India. (Emphasis added.) 101 Thereafter, the Authority accepted the difficulties the appellant might face, at a practical level, in returning to Sri Lanka, but found he would not be exposed to any serious risk of harm if he did return, and found that the situation had changed considerably since the time when the appellant left Sri Lanka. It also found (at [35]): The applicant departed Sri Lanka at least 11 years ago. I have found the applicant was not of interest to the Sri Lankan authorities for any reason when he departed Sri Lanka using his own passport in 2006. The applicant has not claimed that he has been sought by the Sri Lankan authorities or any other groups or individuals since his departure from Sri Lanka. 102 This was the finding made immediately before the Authority considered the reliability of the appellant's account about his brother. It was in this context that the Authority found his circumstances to be no different from those of his brother (who had fled with him to India) and rejected the account of his brother being continuously harassed. That finding was made from the Authority's perspective, on its own findings, about the Sri Lankan authorities having no interest in the appellant's family for a very long period of time. 103 Many decision-makers would not have gone as far as to describe this as "contrived" evidence, implicitly saying it had falsely been provided to "enhance the applicant's claims for protection". It is an extreme finding. However, I am unable to say it was beyond the reach of any reasonable fact-finding for an Authority in the circumstances of this review. There was at least a rational connection to the findings which had gone before. 104 The legal unreasonableness challenge must fail.

Materiality 105 Since I have not upheld either of the characterisations of the contended jurisdictional error, it is not necessary to consider the parties' respective arguments on materiality.

Conclusion 106 The appeal must be dismissed. The Federal Circuit Court was correct in not identifying any jurisdictional error affecting the Authority's decision. There is no basis for anything but the usual order as to costs, although I would not allow the Minister to recoup his costs of opposing leave to rely on the amended notice of appeal. 107 The Court reiterates its gratitude to counsel for taking a referral to act on behalf of the appellant. Where the arguments made are not successful, counsel bears the burden of acting entirely without fee, and of having committed a substantial amount of time, resources and intellectual energy to the presentation of a case on behalf of the client. The Court is greatly assisted by counsel's involvement, and the considerable commitment to assisting the administration of justice on behalf of counsel should be publicly acknowledged. 108 While the affidavit of the appellant's brother was not admitted into evidence on the appeal, if accepted to be true, its contents are capable of suggesting that the situation which may face the appellant on any forced return to Sri Lanka should be re-examined before he is removed. It will be a matter for the executive whether this occurs or not. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

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