FCFY v Minister for Home Affairs

Federal Court of Australia|2018-11-08|Before: Thawley J

Pursuant to rules 31.02 and 1.39 of the Federal Court Rules 2011 (Cth), the applicant is granted an extension of time in which to file and serve an originating application until the date of this order.
The draft originating application filed on 22 May 2019 as an attachment to the application for an extension of time is taken to be an originating application filed by the applicant as required by order 1.
A referral certificate for legal assistance be issued under rule 4.12 in respect of the applicant.
The applicant is to file an amended originating application for review of a migration decision within 8 weeks. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 1 The applicant is a British citizen who migrated from Britain when he was about a year old, arriving in Australia in 1972. He has lived in Australia for 47 years and has never returned to the United Kingdom. He has close ties to Australia, including three siblings, four step-siblings, three children and three grandchildren. His extended family, comprising of eight aunts and uncles, cousins, nieces and nephews also reside in Australia. The applicant has no known family in the United Kingdom. 2 The applicant also has a criminal history including convictions for more than 100 separate offences between 1987 and 2017. He has been sentenced to terms of imprisonment in respect of 38 of those offences, some of which were served concurrently. The applicant's history of offending includes violence, dishonesty and driving offences. Between 2000 and 2017, the applicant has spent more than five years and ten months in prison. 3 On 21 February 2017, the applicant was convicted of seven offences. He was sentenced to an aggregate period of 12 months' imprisonment in respect of two counts of 'dishonestly obtain property by deception'. He was also concurrently sentenced to three months' imprisonment in relation to the offence 'carry offensive implement' and was jailed for an additional period of five months commencing on 21 July 2017 for the offence of 'intimidate police officer'. 4 The applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) on 27 June 2017. On 20 August 2017, a delegate of the (then) Minister for Home Affairs decided not to revoke the mandatory cancellation of the applicant's Class BF Transitional (Permanent) visa under s 501CA(4). The applicant's visa had been cancelled under s 501(3A) because: (a) the Minister was satisfied that the applicant did not pass the character test, by reason of having a substantial criminal record (s 501(6)(a), (7)(c)); and (b) because he was serving a sentence of full-time imprisonment at Goulburn Correctional Centre, in New South Wales, for a criminal conviction. 5 The Administrative Appeals Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa, giving its decision and reasons on 8 November 2018. 6 The applicant applied under r 31.02 of the Federal Court Rules 2011 (Cth) for an extension of time in which to seek judicial review of the Tribunal's decision.

Principles 7 Section 477A of the Act confers on this Court the discretion to extend the time within which an application may be made in respect of a remedy in exercise of this Court's original jurisdiction under s 476A of the Act. Section 477A(1) imposes a 35-day period within which an application may be brought for a remedy under s 476A. Subsection 477A(2) provides: The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 8 The Court's discretion to grant an extension of time under s 477A(2) arises if the "Court is satisfied that it is necessary in the interests of the administration of justice to make the order". That discretion is broad and the relevant considerations are not confined by express words in the statute. It is to be recognised that the legislature has prescribed a time limit and that there is a public interest in the finality of litigation. Time limits to bring applications do not exist only to bar applications which would otherwise fail on the merits - cf: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 (McHugh J). All relevant circumstances must be considered, including the particular nature of the litigation and the consequences to the parties: Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 97 (French J). 9 Apart from what has just been mentioned, considerations which are typically considered in exercising the discretion to extend time under s 477A(2) include: (1) the length of the delay; (2) the applicant's explanation for the delay, including the applicant's responsibility for it; (3) the merit of the application for review if an extension of time were granted; and (4) the prejudice, if any, which the respondent might suffer if an extension were granted: Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26]. 10 These factors are typically considered in relation to other provisions providing for an extension of time: BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [82] (concerning an extension of time to appeal under Rule 36.05); Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[39] (concerning an extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9.

Length of the delay 11 The applicant filed his application approximately 195 days after the Tribunal's decision, and approximately 160 days after the period required by s 477A(1) had expired. 12 The Minister submitted that the length of the delay and the failure by the applicant to provide any explanation for that delay form a sufficient basis upon which the application should be dismissed, referring to Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [15]: An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this court. 13 One hundred and sixty days is a lengthy delay. This factor weighs against granting an extension of time.

Explanation for the delay 14 The applicant filed an affidavit sworn on 21 May 2019 in support of his application which simply annexed the letter from the Tribunal under which the Tribunal's decision and reasons for decision had been provided to the applicant. The affidavit contained nothing more. Specifically, there was no explanation provided for the delay. 15 On 27 June 2019, the Court made orders granting the applicant leave to file by 11 July 2019 any further evidence, any amended application and any submissions. The applicant did not file any further material. 16 In reply submissions at the hearing, however, and without objection, the applicant tendered two facsimile reports dated 10 December 2018 and 12 March 2019. These confirmed that faxes of three pages and 35 pages respectively had been transmitted to the Court on those dates. Both of the faxes commenced with an application for exemption for paying court fees. I take from the facsimile reports that the applicant at least made some attempt to initiate the application for judicial review within 35 days from the date of the Tribunal's decision, and that a second attempt was made on 12 March 2019. 17 I have taken into account that the applicant has been and remains unrepresented and that he has been in immigration detention. I have taken into account his history as disclosed by the material contained in the application book. 18 The applicant's explanation for the delay was not satisfactory, but there was at least some explanation. The applicant had not done nothing.

Prejudice to the respondent 19 The Minister properly did not suggest he would suffer any relevant prejudice if an extension were granted. The mere absence of prejudice does not of itself justify the granting of an extension of time: DLE16 v Minister for Home Affairs [2019] FCA 136 at [27], citing Parker v The Queen [2002] FCAFC 133; Hunter Valley Developments at 348-349.

Merit of proposed application 20 The Minister submitted that the proposed application lacks sufficient merit to warrant the granting of an extension of time.

Relevant principles 21 Caution is required in assessing merits at an interlocutory stage: Mentink at [37] and [38] (Griffiths J), citing Seiler at 98 and ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111] (Katzmann J). An extension of time will generally not be granted if the proposed application has no reasonable prospect of success. However, if a ground does not appear hopeless, this weighs in favour of granting an extension to enable the ground to be considered with the benefit of full argument: Afu v Minister for Home Affairs [2018] FCA 1311 at [3] (Bromwich J). 22 The merit of the proposed application should be considered at a "reasonably impressionistic level" by reference to the proposed grounds of the application as identified: BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [23]; SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380 at [13]; Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577 at [23].

The draft grounds of review 23 The applicant's draft originating application, filed on 22 May 2019, contained the following single ground of review (corrected for spelling errors): "Minister's decision was legally unreasonable". 24 Of course, the subject of the application must be the decision of the Tribunal and I have proceeded on the basis that the applicant asserts that the Tribunal's decision (rather than the Minister's decision) was affected by jurisdictional error for the reason identified. The applicant did not provide any further particulars to identify the alleged unreasonableness. 25 In oral submissions, however, the applicant stated that the decision could be seen to be unreasonable as a matter of common-sense. He emphasised that he had been in Australia since before he turned one and that he had lived in Australia since, having all of his connections with this country. In other words, the applicant submitted that the result bespoke unreasonableness even if no specific error could be identified - cf: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [12] (Allsop CJ). 26 The applicant's short oral submissions focussed on his ties to Australia and implicitly suggested that this factor should have been given greater weight.

The Tribunal's decision 27 The Tribunal had jurisdiction by reason of s 500(1)(ba). The Tribunal was bound in performing its functions and exercising its power to comply with Direction No. 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65): s 499(1) and (2A) of the Act. 28 The Tribunal referred to the principles in [6.3] of Direction 65. It went on to consider the three "primary considerations" in Part C of Direction 65 and those of the "other considerations" which it considered relevant. 29 The Tribunal referred to the material before it, including the written statements and oral evidence given by the applicant and his partner, written statements by family members and friends and associates and the various records and documents relating to his offences. The Tribunal summarised the applicant's early history at T[18] to T[22]. That history is relevantly summarised at [1] to [3] above. 30 In respect of the protection of the Australian community from criminal or other serious conduct, the Tribunal considered the nature and seriousness of the applicant's conduct and the risk to the community should the applicant commit further offences or engage in other serious conduct. 31 As to the nature and seriousness of the applicant's conduct, the Tribunal's reasons included: 30. The applicant's criminal record, which is summarised in paragraphs 23 to 28 above, shows he appeared before the Courts (adult and children's) on 45 occasions from May 1987 to July 2017 and was convicted of more than 100 criminal offences. His record demonstrates an extensive and long-term pattern of repeated and serious offending from the age of 16 years. 31. The seriousness of the applicant's criminal behaviour is indicated by the sentences imposed by the Courts, which include periods of imprisonment in relation to 38 convictions. Between 2000 and 2017, the applicant has been incarcerated for a total period of over five years and ten months. 32. The applicant's criminal record contains repeated incidences of violence dating from May 1987, including convictions for assault occasioning actual bodily harm, assault, common assault, assault police and contravening apprehended domestic violence order. The police reports for these convictions describe the applicant's involvement in physical fights with people known to the applicant as well as strangers. 32 The Tribunal recorded that the applicant had received a letter dated 7 March 2012 from what was then the Department of Immigration and Citizenship stating his visa might be cancelled on character grounds because of his offending. The Tribunal also recorded the contents of a second letter to the applicant, dated 21 May 2012, which stated his visa would not be cancelled but contained a formal warning in the following terms: Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered. 33 The Tribunal noted that the applicant continued to offend, as shown by five court appearances between 2013 and 2017. 34 The Tribunal concluded: 39. Considering the relevant factors set out in paragraph 13.1.1 of the Direction, I find that: • The applicant's offences include committing serious and violent offences. • The applicant has committed offences against police officers. • The applicant's record of criminal offences shows he has been convicted of more than 100 offences in the adult and children's Courts over a period of 30 years. He has been in prison for a period of approximately five years and ten months between 2000 and 2017. • There has been a cumulative effect due to the applicant's repeated offending and he has continued to offend despite repeated warnings from the judicial system. • The applicant received a written warning from the Department in 2012 that any further offending would result in the cancellation of his visa. • There is no evidence before the Tribunal that the applicant has ever provided false or misleading information to the Department. 40. I am satisfied that the frequency and cumulative effect of the applicant's criminal offending is a matter of very serious concern. I find that the nature and seriousness of his offending weighs heavily against him. 35 As to the risk to the Australian community, the Tribunal was not satisfied that the applicant would not reoffend if he were released into the Australian community. It concluded that the protection of the Australian community weighed heavily against revoking the cancellation decision: T[49]. In reaching this conclusion the Tribunal took into account that: (1) the applicant submitted to the Tribunal that he was "easily provoked" and that much of his conduct was due to being "off his guts" on alcohol and drugs. The Tribunal considered the applicant's evidence to be "honest and raw": T[35]; (2) the applicant continued to offend despite a warning letter from the Department that his visa might be cancelled on character grounds under s 501 because of his offending: T[36] and [37]; (3) the applicant had engaged in frequent and serious criminal conduct: T[39]; (4) the applicant had opportunities to participate in rehabilitation programs, but - according to reports in 2003 and 2004 - had not completed programs, even when directed by the court: T[42]. He had however completed two programs in 2012: T[43]. The applicant has been assessed by the NSW Department of Corrective services to have a "medium/high risk" of reoffending: T[43]; (5) the applicant had submitted to the Tribunal that he had abstained from drugs and alcohol since February 2017 and intended not to relapse or reoffend: T[46]. The Tribunal accepted the applicant so intended, but placed minimal weight on that submission in view of his serious and frequent offending behaviour for more than 30 years, his limited participation in rehabilitation programs and counselling, and the lack of any objective evidence that the applicant had reformed or was unlikely to relapse: T[47]. 36 In relation to the best interests of minor children, the Tribunal stated: 51. The applicant has a son and three grandchildren under the age of 18 years. The applicant's son, "G" was born in 2004 and currently resides with his mother (the applicant's ex-partner). The applicant's grandchildren were born in 2009, 2016 and 2017 and they reside with their mother (the applicant's daughter). The applicant also has two nieces under the age of 18 years who reside with their mother. 52. The applicant's evidence to the Tribunal was that his son "G" lived with him from March 2005 until the applicant went to prison in July 2009. "G" currently lives in Queensland with his mother (the applicant's ex-partner). The applicant has not seen "G" since 2009 but speaks to him on the phone once or twice a week. I accept the applicant has a parental role in relation to his son "G" despite his physical absence for the past nine years. 53. The applicant has not met his youngest grandchild and has not seen his older grandchildren or nieces since he was incarcerated in 2017, although he maintains contact via telephone and social media. Each of these children resides with their mothers. There is no evidence before the Tribunal that the applicant plays a "parental" role in the lives of his grandchildren or his nieces, although I acknowledge the applicant's submission that his family, including his nieces and grandchildren, is "close". 54. While I find this primary consideration weighs in favour of the applicant, I do not place substantial weight on this consideration because the children also have parents and other family members present in their lives. 37 In relation to the expectations of the Australian community, the Tribunal considered the positive contributions the applicant had made to society and weighed these against his adverse and antisocial behaviour. Its reasons included (footnotes omitted): 57. The applicant has resided in Australia since 1972. All his known family members reside in Australia including his aunts and uncles, cousins, siblings, step-siblings, children, partner, step-children and grandchildren. 58. The applicant had an extremely difficult upbringing, which resulted in him leaving his family home when he was 12 years old and finishing high school at year 8. The applicant has had occasional "cash-in-hand" jobs but mostly relied on Centrelink benefits for the past 30 years. He has undertaken some volunteer work assisting at the Salvation Army and serving meals to homeless people. 59. The applicant's partner is an Australian citizen. She gave evidence to the Tribunal about their relationship for the past eight years. She said she suffers from generalised anxiety and post-traumatic stress disorder and relies heavily on the applicant for emotional support. She visits him at Villawood several times a week and speaks with him on the phone "all the time". It was clear from the evidence of both the applicant and his partner that they have maintained a close and supportive relationship. 60. The applicant's partner has six children, aged from 29 years to 11 years old, and four grandchildren. Her children do not reside with her but live close by, apart from her youngest child who lives with his father. The older son of the applicant's partner, who is 20 years old, provided a written statement dated 15 September 2018. He referred to the applicant as "a father figure" to him and stated that if the applicant is deported, "it would be like losing another father [as he] has emotionally helped me through life and replaces the father that I don't have". 61. The applicant also provided character references from his aunt, sister and a friend. The reference from his aunt confirmed the applicant's statements about his childhood, noting he "grew into a life of crime and drugs". Statements from the applicant's sister and friend confirm the applicant's role in the lives of his family and friends as a "kind, big hearted, genuine man". 62. I also have regard to the applicant's statement that he is a "product of Australia". In view of the nearly 47 years the applicant has lived in Australia, I accept that he and the life he has led has been shaped in part by his experiences within the Australian community. 63. There is no question the Australian community would have extensive empathy for the applicant due to the significant length of time he has lived in Australia and his substantial extended family in Australia, including children, with whom he has close relationships. However, this must be weighed against the applicant's behaviour of committing serious and violent offences over a period of 30 years and his continued disregard for the Australian law and judicial system after he was warned in 2012 that this behaviour would result in the cancellation his visa. 64. In assessing all the relevant evidence against the requirements of the Direction, I find the applicant's circumstances do not excuse his criminal offending. On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation of the applicant's visa. 38 As to the "other considerations" referred to in Direction 65, the Tribunal considered the "strength, nature and duration of [the applicant's] ties to Australia" and the "extent of impediments if the applicant is removed". There was nothing before the Tribunal indicating that 'international non-refoulement obligations' were relevant or that it was relevant to consider the 'impact on Australian business interests' or the 'impact on victims'. 39 As to the ties to Australia, the Tribunal stated: 68. The applicant has lived in Australia for nearly 47 years. He arrived as a baby with his parents and has never returned to the United Kingdom. The applicant has demonstrated extensive family ties to Australia through his aunts and uncles, cousins, siblings and step-siblings, children, grandchildren, partner and step-children. He views Australia as "home". 69. However, I must place less weight on this consideration because of the applicant's limited positive contribution to the Australian community over the past 30 years. 70. I am satisfied that the applicant has strong family and social ties to Australia. I find consideration of the applicant's ties to Australia weighs strongly in his favour. 40 As to impediments if removed, the Tribunal stated: 72. The applicant is 47 years old and told the Tribunal he has no health problems. There is no language or cultural barriers to the applicant returning to the United Kingdom and obtaining employment. I am satisfied that, as a citizen of the United Kingdom, the applicant would have access to a public health system and social welfare. However, I accept the applicant's evidence that he knows no one in the United Kingdom and would therefore have no informal social or economic support networks to rely on. His partner's evidence was that she could not financially afford to move to the United Kingdom nor leave her children and grandchildren in Australia, so the applicant's removal from Australia would permanently separate them. 73. I find there are some impediments, in addition to being removed from his family in Australia, which would affect the applicant commencing a life in the United Kingdom. I am satisfied that this consideration weighs for revoking the decision to cancel the applicant's visa. 41 The Tribunal concluded: 74. The first and third primary considerations weigh heavily against the revocation of the cancellation decision. The second primary consideration weighs for the applicant but, for the reasons set out in paragraph 54 above, I place minimal weight on this consideration. 75. In regard to the other considerations, I find both the applicant's ties to Australia and the impediments to his removal from Australia weigh for revoking the cancellation of the applicant's visa. 76. Noting the requirement that primary considerations should be given greater weight than the other considerations, I am satisfied on balance of the primary and other considerations that it is not appropriate to revoke the decision to cancel the applicant's visa.

Possible errors 42 Direction 65 included at [14.2(1)]: 14.2 Strength, nature and duration of ties (1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to: (a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: (i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and (ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community. 43 As mentioned, the Tribunal stated at T[69] (emphasis added) that it "must place less weight on this consideration because of the applicant's limited positive contribution to the Australian community". This potentially discloses error. Paragraph 14.2(1)(a)(ii) of Direction 65 states that more weight should be given to time spent positively contributing to the Australian community. The paragraph is not cast in mandatory terms and it is not cast in terms which necessarily require less weight to be given to the "strength, nature and duration of ties" simply because the person has not spent time positively contributing to the Australian community. 44 Notwithstanding what it said at T[69], the Tribunal stated at T[70] that it considered the consideration weighed strongly in the applicant's favour. 45 Nevertheless, it is arguable that T[69] discloses error in that it suggests that, when the Tribunal came to balancing the applicant's strong ties to Australia against the other considerations, the Tribunal gave it less weight because of the Applicant's limited positive contribution to the Australian community, erroneously considering it was bound to do so by the terms of [14.2] of Direction 65. In identifying this possible error, I have had regard to the principle that the merit of the application should be considered at a "reasonably impressionistic level" and having regard to the observation of French J in Seiler at 98 that caution should be exercised in assessing merits at an interlocutory stage of proceedings. 46 This potential error may also be compounded by the next possible error. 47 Direction 65 includes at [8]: 8. Taking the relevant considerations into account (1) Decision-makers must take into account the primary and other considerations relevant to the individual case … (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa. (4) Primary considerations should generally be given greater weight than the other considerations. (5) One or more primary considerations may outweigh other primary considerations. 48 Paragraph [76] of the Tribunal's reasons also arguably discloses error. Paragraph 8 of Direction 65 does not state that "primary considerations should be given greater weight than the other considerations" as stated by the Tribunal. Paragraph 8(4) of Direction 65 states that the primary considerations should "generally" be given greater weight. It does not require that such considerations always be given greater weight. Direction 65 leaves open that the particular facts of a case are such that the primary considerations should not be given greater weight. 49 As noted earlier, I understood the applicant's submission to be that, in light of his unusually strong connection to Australia and his absence of connection with the UK, the nature of his ties to Australia ought to have been given greater weight than they were. 50 Reading T[76] in isolation, the Tribunal arguably approached its task on the basis that it was required to give greater weight to the primary considerations when undertaking the balancing exercise it was required to undertake. This arguably erroneously excluded the possibility that the "primary considerations" should not be given greater weight in the particular circumstances. It arguably excluded the possibility that the applicant's ties to Australia (being one of the "other considerations") could not outweigh those primary considerations which weighed against revocation. 51 The reasons must be read as a whole and it must be recognised that the Tribunal correctly stated at T[14]: Paragraph 8 of the Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. 52 This tends against the view that T[76] reveals a misunderstanding of the statutory task. However, the question is whether the Tribunal understood the task correctly or misapplied Direction 65, when it came to exercise its discretion by carrying out the balancing exercise contemplated. As mentioned, an appropriate degree of hesitation is required when determining the merit of an application for judicial review at an interlocutory stage. It is one thing to refuse an application for an extension of time on the basis that the application clearly has no prospects of success but it is quite another to dismiss an application for an extension of time because there are perceived difficulties with the proposed grounds of the application. 53 In my view it is at least arguable that, when the Tribunal came to carrying out the balancing exercise required in considering how to exercise its discretion, it misapplied Direction 65, having particular regard to the use of the word "must" at T[69] and failure to use the word "generally" at T[76].

CONCLUSION 54 In my view, notwithstanding the length of delay and the explanation provided, the application for an extension of time to file an originating application for review of a migration decision should be granted. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.

Migration Act 1958(Cth)ss 476A, 477A, 499(1), 499(2A), 500(1), 501(3A), 501(6)(a), 501(7), 501CA(4)

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