Maan v Minister for Immigration and Citizenship

Federal Court of Australia (Full Court)|2007-07-01|Before: Collier JJ

REASONS FOR JUDGMENT THE COURT: 1 The appellant, an Indian national undertaking tertiary studies in Melbourne, appeals from a decision of the Federal Magistrates Court in which the Court dismissed his application for review of a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister to cancel the appellant's Subclass 573 Higher Education Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth). In summary, the delegate cancelled the appellant's visa because the educational institution at which the appellant was enrolled as a student certified that the appellant had failed to attend classes as required by his course of study, and because the delegate was satisfied that the appellant's non-attendance was not due to exceptional circumstances beyond his control. 2 On application for review, the Federal Magistrate affirmed the decision of the Tribunal. 3 It is not in dispute that the decision of the Tribunal was a privative clause decision within the meaning of s 474(2) of the Migration Act (Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168). It follows that the Tribunal's decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s 474(1) of the Migration Act). 4 The only basis upon which a privative clause decision can be the subject of review is jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. 5 The appellant challenges the findings of the Federal Magistrate affirming the decision of the Tribunal. His grounds of appeal are: 1. His Honour erred in the application of the relevant provision of the Migration Regulations (namely regulation 5 of the Migration Amendment Regulations 2007 (No 5) (Cth)): (a) by considering that breach of the attendance criterion occurs only when it is certified by the education provider; (b) by failing to consider that a breach of the attendance criterion is referable to a period or a specific time. 2. His Honour erred in finding that proviso to regulation 2.43(2)(b)(ii)(B) was not available to the appellant. 6 The issues for determination by the Court are: 1. whether the post-1 July 2007 version of Visa Condition 8202 was applicable in this case. 2. the manner in which Visa Condition 8202 operated in relation to the appellant's visa. 3. whether the certification by the educational institution was valid in the absence of reference to a specific period of non-attendance. 4. whether the Tribunal and the Federal Magistrates Court gave proper consideration to exceptional circumstances claimed by the appellant.

Background 7 The appellant was granted a subclass 573 Higher Education sector visa by the Department of Immigration and Citizenship ("the Department") on 29 March 2007. The appellant enrolled as a student in the course of Advanced Diploma of Hospitality Management at the Victorian Institute of Technology Pty Ltd ("VIT"). 8 The appellant travelled to India on 5 April 2007 after being informed that his mother and grandfather in India had been involved in a car accident as a result of which they were both hospitalised. On 9 April 2007 the appellant's grandfather died. The appellant returned to Australia on 18 April 2007. 9 On 17 May 2007 VIT wrote to the appellant in relation to his low attendance at classes. The letter was as follows: Our records indicate that your attendance level is currently below the 85 per cent required not to include you in low attendance warning list even after repeated reminders and verbal warnings for the current semester. Please be aware - One of the student VISA Mandatory conditions 8202 is: 8202 All Visa Subclasses You must remain in a full-time registered course (unless you are an AusAID/Defence or secondary school student who holds a subclass 560 visa, in which case you must be enrolled in a full-time course of study or training). Note: a registered course is one that is on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). See: CRICOS website for a list of registered courses and educational providers. You must attend at least 80% of the contact hours scheduled for each semester of your course. Note: If your course is shorter than a semester, then for the duration of the course. You must have a satisfactory academic result for each term or semester.

You must attend at least 80% of the contact hours scheduled for each semester of your course. Sickness with medical certificates does not count towards the 80% requirement. Failure to comply with the Visa Conditions may result in cancellation of your enrolment and student visa. You are required to show cause for your low attendance within FIVE days from the date of issue of this warning to VIT Student Services Officer. Note: Failure to do so may result in you being reported to DIAC. 10 On 8 August 2007 VIT again wrote to the appellant. The letter - which was also emailed to the appellant - was as follows: Dear Student, Re: Breach of VISA Conditions Notice of Intention to report to DIAC for low attendance Our records indicate that your attendance level is currently below the 80% visa requirement even after repeated reminders and verbal warnings. Please be aware - One of the Student VISA mandatory conditions 8202 IS: 8202 All Visa Subclasses You must remain enrolled in a full-time registered course (unless you are an AusAID/Defence or secondary school student who holds a subclass 560 visa, in which case you must be enrolled in a full-time course of study or training). Note: a registered course is one that is on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). See: CRICOS website for a list of registered courses and education providers. You must attend at least 80% of the contact hours scheduled for each term of your course. Note: If your course is shorter than a semester, then for the duration of the course. You must have a satisfactory academic result for each term or semester.

You must attend at least 80% of the contact hours scheduled for each term of your course. Sickness with medical certificates does not count towards the 80% requirement. You will be reported to DIAC for low attendance. You have 20 Working days to appeal this notice as per VIT's complaints and appeals policy. 11 On 24 September 2007 VIT produced a certification pursuant to subcl 8202(3) of Sch 8 of the Migration Regulations 1994 (Cth) stating that the appellant had not achieved satisfactory course attendance for the purposes of the Education Services for Overseas Students Act 2000 (Cth) ("ESOS Act") and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 ("the Code"). 12 An attendance record produced by VIT indicated that the appellant had attended 54 hours of the 200 contact hours scheduled in the course for the period between 11 July 2007 and 14 September 2007, representing an attendance of 27% of the contact hours scheduled for that period. 13 On 15 October 2007 the Department subsequently issued the appellant with a notice of intention to consider cancellation of his visa based on the VIT certification, and the fact that he had not met the requirements of cl 8202(3) and was therefore in breach of Visa Condition 8202. 14 During an interview with the Department of Education, Science and Training (DEST) on 3 December 2007 the appellant said that he had not attended classes because he was depressed and stressed following his grandfather's death. He also claimed that he had not attended classes because he had to return to India, and that he had not been informed by VIT of any internal or external appeals processes. 15 On 11 January 2008 the delegate of the Minister cancelled the appellant's visa.

Decision of the Tribunal 16 The appellant sought review of the delegate's decision by the Tribunal. 17 Before the Tribunal the appellant accepted that he had not attended 80% of the classes in the course, but that this had been caused by exceptional circumstances beyond his control. He also claimed, inter alia, that he had not been made aware of procedures including relevant review processes at VIT, that he had been depressed and stressed by his family circumstances and that staff at VIT were aware of this, and that the VIT attendance record was not accurate. 18 The Tribunal said that the delegate had decided to cancel the appellant's visa on the basis of a failure to comply with a condition of the visa: s 116(1)(b). The relevant condition identified by the delegate was Visa condition 8202(3)(b) found in Sch 8 cl 8202(3)(b) of the Migration Regulations. In particular, the delegate considered that the breach of the condition arose because VIT had certified that the appellant had not achieved satisfactory course attendance for the purposes of s 19 of the ESOS Act, and Standard 11 of the Code. 19 Although as a general principle the relevant version of Visa Condition 8202 was the version that was applicable at the time of the grant of the visa, in the case of a breach of Visa condition 8202 which occurred on or after 1 July 2007 - which this breach was - the relevant version of that condition was as in force as at 1 July 2007: r 5 of the Migration Amendment Regulations 2007 (No 5) (Cth). 20 The Tribunal found that the appellant was made aware of internal and external review processes relevant to the VIT certification but chose not to avail himself of those processes, and accordingly this did not constitute exceptional circumstances beyond the appellant's control. Further, while the Tribunal accepted the appellant's explanation of the events in March and April 2007 relevant to the accident involving his mother and grandfather, given that VIT's unsatisfactory attendance certification during the period July 2007-September 2007 the Tribunal did not accept that the accident and the appellant's need to return to India in April 2007 were "exceptional circumstances" for the purposes of the later period. Although the Tribunal accepted as plausible that the appellant might suffer depression and stress in the circumstances, he had sought no professional assistance at any stage. Accordingly the Tribunal was not satisfied that the appellant was depressed or stressed as claimed, and was therefore not satisfied that the claimed depression and stress were exceptional circumstances in the appellant's case.

Hearing before Federal Magistrate 21 Before Federal Magistrate two issues were raised. The first issue was whether the Tribunal properly considered a relevant matter when reaching its decision to affirm the decision of the delegate, namely the specific date at which the Tribunal was satisfied that the appellant was in breach of Visa Condition 8202. The second issue concerned the proper construction of that condition. 22 The Federal Magistrate noted that: · Following amendment of Visa Condition 8202 with effect from 1 July 2007, the condition was in a substantially different form to that which existed before 1 July 2007. · The appellant's visa was issued before 1 July 2007 and a question arose as to the correct form of Visa Condition 8202 to be applied in the resolution of this matter. · The non-conformity with the relevant visa condition was the VIT certification of 24 September 2007 that the appellant had not completed satisfactory course attendance, not the actual non-attendance by the appellant at VIT. Accordingly it is not to the point that the Tribunal did not identify expressly in its reasons for decision the period of time in respect of which the relevant breach was said to have occurred, or the day upon which the breach was said to have occurred. 23 Finally, his Honour found that the question whether exceptional circumstances had been demonstrated was a question of fact for the Tribunal, and no jurisdictional error had been demonstrated in relation to the Tribunal's consideration of this issue.

Is the post-1 July 2007 version of Visa Condition 8202 applicable in this case? 24 The appellant submitted that because the appellant was granted a visa before 1 July 2007, and because his non-compliance with the terms of his visa occurred prior to 1 July 2007, the Tribunal and the Federal Magistrate incorrectly applied the post-1 July 2007 version of Visa Condition 8202(3). 25 On 1 July 2007 visa condition 8202 in Sch 8 to the Migration Regulations 1994 (Cth) was changed by the amendment to subcl (3). Prior to 1 July 2007 visa condition 8202(3) provided: (3) A holder meets the requirements of this subclause if: (a) in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term and semester of the course; and (b) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course. 26 After 1 July 2007 Visa condition 8202(3) provided: (3) A holder meets the requirements of this subclause if neither of the following applies: (a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for: (i) section 19 of the Education Services for Overseas Students Act 2000; and (ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007; (b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for: (i) section 19 of the Education Services for Overseas Students Act 2000; and (ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. 27 Accordingly whereas prior to 1 July 2007 Visa condition 8202 was breached if the Minister was not positively satisfied that the visa holder attended at least 80% of the contact hours scheduled for each term and semester of the course for courses which ran for at least a semester, after 1 July 2007 breach of Visa Condition 8202 was established by certification by the educational institution that the visa holder had failed to achieve satisfactory course attendance for the purposes of s 19 of the ESOS Act and Standard 11 of the Code. 28 So far as relevant s 19 of the ESOS Act provides: (2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs. 29 The key provision in Standard 11 of the Code is cl 11.3. Unlike subcl 3 of the earlier version of Visa Condition 8202, Standard 11 imposes no requirement on the student of attendance of contact hours for each term and semester of the course. Instead, the student attendance required by Standard 11 is determinable by the relevant educational institution and referable, as a minimum, to the attendance at the course as a whole. Clause 11.3 of Standard 11 provides: 11.3 For the courses identified in 11.1, the registered provider must have and implement appropriate documented attendance policies and procedures for each course which must be provided to staff and students that specify the: a. requirements for achieving satisfactory attendance, which at a minimum, requires overseas students to attend at least 80 per cent of the scheduled course contact hours; b. manner in which attendance and absences are recorded and calculated; c. process for assessing satisfactory attendance; d. process for determining the point at which the student has failed to meet satisfactory attendance, and e. procedure for notifying students that they have failed to meet satisfactory attendance requirements. 30 The transitional provision concerning visas granted prior to 1 July 2007, but which are breached after that date, is reg 5(3) of the Migration Amendment Regulations 2007 (Cth). This regulation provides: The amendment made by schedule 3 also applies in relation to a visa granted before 1 July 2007 but only in relation to a breach of a visa condition that occurred on or after 1 July 2007. 31 It appears from the terms of the regulation that, in relation to pre-1 July 2007 visas such as the appellant's visa, the version of Visa Condition 8202 in force after 1 July 2007 is relevant only in relation to breaches of those visa conditions which occurred after that date. So far as concerns courses of more than one semester in length, prior to 1 July 2007 a breach of the visa would have been constituted by failure of a student to attend 80% of prescribed contact hours each term and semester of the course up until 1 July 2007, however after 1 July 2007 a breach of the visa conditions would have been referable to breach of the educational institutions' attendance policies (as a minimum, 80% of the course as a whole after 1 July 2007). 32 The appellant submits that, on the facts, the appellant's non-compliance with the terms of his visa occurred prior to 1 July 2007, and accordingly the Federal Magistrate incorrectly applied the amended subcl 3 of Visa Condition 8202 (including Standard 11) to that breach. 33 However as was demonstrated by the VIT attendance records dated 24 September 2007 (AB 34) and as became evident during the hearing: · the appellant failed to attend classes both prior to 1 July 2007 and after 1 July 2007; · although VIT had written a warning letter to the appellant on 17 May 2007 in relation to the failure of the appellant to attend classes prior to that date, VIT's notice of intention to report the appellant to the Department dated 8 August 2007 and subsequent certification as to the appellant's failure to attend classes related to the failure of the appellant to regularly attend classes at VIT between 11 July 2007 and 14 September 2007; · the certification does not relate to events prior to 1 July 2007. Accordingly, the Court does not need to decide how reg 5(3) of the Migration Amendment Regulations applies if an educational institution certifies that a visa holder failed to achieve satisfactory course attendance based on course attendance both before and after 1 July 2007. 34 It is clear that, for the purposes of the decision of the delegate to cancel the appellant's visa, the relevant version of Visa Condition 8202 was that in operation after 1 July 2007.

Operation of Visa Condition 8202 in relation to the appellant's visa 35 The Tribunal found that the period 11 July 2007 to 14 September 2007 constituted term dates of the course in which the appellant was enrolled (Reasons for Decision para 28). This factual finding is not in contention. 36 At the hearing of the appeal Mr Sharma for the appellant submitted that, if the version of Visa Condition 8202 in operation after 1 July 2007 applied in relation to the appellant's visa, VIT's certificate to the Department certifying that the appellant had failed to comply with VIT's attendance requirements was a nullity because the course in which the appellant was enrolled was actually over a period of two years, whereas the attendance record referable to the VIT certificate was over a period of only two months, namely 11 July 2007-14 September 2007. 37 The appellant's submissions are predicated upon the basis that, after 1 July 2007, VIT required students enrolled in the appellant's course to attend at least 80% of the course across the length of the course. This position is referable to the minimum standard prescribed by cl 11.3 in Standard 11 of the Code. However it is clear that, following the 1 July 2007 amendments to Sch 8 cl 8202(3) of the Migration Regulations, Standard 11 requires educational institutions to prescribe their own attendance levels, subject to the minimum standard of attendance of at least 80% of the course across the length of the course stipulated by cl 11.3. Clause 11.3 also requires the educational institution to provide this information to staff and students of the institution. 38 In its notification of 8 August 2007 to the appellant, VIT referred to the requirement that the appellant "attend at least 80% of the contact hours scheduled for each term of your course". This reference suggests that VIT had adopted a policy that students attend at least 80% of the contact hours scheduled for each term of the course, rather than a requirement that students attend 80% of the entire course as submitted by the appellant. There is no specific material before this Court as to the VIT attendance policies after 1 July 2007, including whether information as to these policies was provided to staff and students as required by Standard 11 (although the issue of provision of policies was not raised by the appellant at any stage of these proceedings). However the Tribunal noted in its reasons that the Department of Education, Employment and Workplace Relations had reviewed VIT's Code processes connected with the issue of a breach of visa notice to the appellant, and on 11 December 2007 found that VIT appeared to be in compliance with the relevant provisions of the Code. It is reasonable to draw an inference that, after 1 July 2007, VIT required students enrolled in its courses to attend at least 80% of the contact hours scheduled for each term of the course. 39 VIT's notice of intention to report the appellant to the Department for low attendance was dated 8 August 2007. The appellant's attendance details at VIT ending 14 September 2007 indicate that, as of 8 August 2007, the appellant had failed to attend 11.5 days out of the 13 days scheduled in the course. The VIT records indicated that the term comprised 30 contact days. By 8 August 2007 it was clear that the appellant had failed to attend over one-third of the contact hours for that term. It follows that, at this point, the appellant was in breach of the VIT student attendance policies. 40 The decision of the Tribunal, affirmed by the Federal Magistrate, was that the non-conformity with the post-1 July 2007 version of Visa Condition 8202 applicable in this case, so far as concerned the appellant, was not the actual non-attendance by the appellant himself but rather was the receipt by the Department of VIT's certification as to the appellant's unsatisfactory course attendance. The questions then arise whether indeed the certification itself constitutes the non-conformity; and further whether the certification was flawed because of the lack of specificity in the certification as to attendance referable to a specific period of time (be it a term or otherwise).

Form of certification 41 The ordinary meaning of Visa Condition 8202(3) is that the holder of a relevant visa will be in breach of the visa following certification by the educational institution as to a visa holder's non-attendance, and provision of that certification to the Department by the institution. As has already been noted, Visa Condition 8202(3) clearly imposes responsibility on the educational institution to develop attendance policies in light of the requirements of s 19 of the ESOS Act and Standard 11 of the Code. 42 Section 19(2) of the ESOS Act requires the educational institution to provide the Department with particulars of any breach by a student of a prescribed condition of a student visa. In relation to the appellant, the particulars provided by VIT to the Department in the certification of 24 September 2007 were as follows: Particulars of the breach The particulars of the breach are set out below. Failure to meet the requirements of subclause 8202(3) is a breach of condition 8202. A visa holder meets the requirements of subclause 8203(3) if neither (a) or (b) applies. Paragraph 8202(3)(b) provides: the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for: i. section 19 of the Education Services for Overseas Students Act 2000; and ii. standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007) Victorian Institute of Technology Pty Ltd on 24 September 2007 has certified you as not achieving satisfactory course attendance in relation to Advanced Diploma of Hospitality Management (THH60202). Paragraph 8202(3)(b) applies to you. Therefore, you have failed to meet the requirements of subclause 8202(3) and have breached condition 8202. 43 While perhaps these particulars could have been more informative and referred to the period of non-attendance of the appellant and VIT's own post-1 July 2007 attendance policies in greater detail, the Tribunal found that as a consequence of this certification the appellant did not comply with visa condition 8202. 44 It follows from an ordinary reading of Sch 8 cl 8202(3) of the Migration Regulations that the Tribunal was correct in finding that the VIT certification constituted non-compliance by the appellant with his visa conditions. In so finding, the Tribunal (and the Federal Magistrate) correctly applied Sch 8 cl 8202(3) of the Migration Regulations. 45 The fact that it is the certification by the educational institution as to breach of its attendance policies which constitutes the breach by the student of the visa clearly imposes substantial responsibilities on the educational institutions. These responsibilities are reinforced by the criminal liability imposed on individuals for providing false or misleading information in relation to visa holders pursuant to s 19 and s 20 of the ESOS Act: s 108 ESOS Act. 46 As the Federal Magistrate found, the absence of reference to a specific period of time in the certification does not impact on the validity of the certification. 47 During submissions the appellant also referred to factual errors made by VIT in relation to preparing his attendance record, including a claim that he had attended more than 27% of the classes in the relevant term. Notwithstanding the fact that, before the Tribunal, the appellant said that he believed he had attended only around 50% of classes - which is obviously considerably less than the 80% required by VIT - it is clear that: · VIT's notice to the appellant dated 8 August 2007 alerted the appellant to appeal processes of which the appellant could take advantage. Any errors in calculation of the appellant's attendance could have been remedied by the appellant pursuing such processes; and · In any event, the actual attendance by the appellant is a factual issue which was raised before the Tribunal. Even if the Tribunal had made a factual error in respect of this issue, it is not an issue which goes to jurisdiction of the Tribunal and enlivens the authority of this Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35-36]. 48 In conclusion, the appellant's first ground of appeal cannot be substantiated.

Exceptional circumstances 49 In his second ground of appeal the appellant claims the Federal Magistrate did not properly consider whether the appellant's breach of the visa condition was due to exceptional circumstances. Regulation 2.43(2) of the Migration Regulations 1994 (Cth) provides, so far as relevant: For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: … (b) in the case of a Student (Temporary) (Class TU) visa: (i) … (ii) that the Minister is satisfied that: (A) the visa holder has not complied with condition 8202; and (B) the non-compliance was not due to exceptional circumstances beyond the visa holder's control. 50 This ground of appeal can be quickly disposed of. 51 Although the expression "exceptional circumstances" is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows: We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25]) 52 In this case the Tribunal considered in detail the meaning of "exceptional circumstances" in the context of these proceedings, and whether the appellant's non-compliance with the conditions of his visa was due to exceptional circumstances beyond his control. Indeed, the Tribunal accepted the appellant's evidence as to the events which had occurred in respect of his mother and grandfather, and gave consideration to his claims concerning his teacher at VIT and the stress of being away from home. On the facts the Tribunal found it plausible that the appellant should have experienced stress and depression as a result of the events involving his mother and grandfather. However the Tribunal was not satisfied that the appellant remained stressed or depressed several months after those events, particularly in light of the appellant's failure to seek professional assistance. It is perhaps surprising that the Tribunal would find that a male student, aged 18 years old, and alone for the first time in a foreign country, would naturally seek medical help for depression-related symptoms. However the findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error. The Federal Magistrate also considered this aspect of the appellant's case in detail, and no deficiency in the reasoning of the Federal Magistrate in relation to this issue has been identified by This Court. 53 The second ground of appeal cannot be substantiated. 54 The appeal should be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Greenwood and Collier.

Associate: Dated: 23 October 2009 Solicitor for the Appellant: Mr N Sharma of Sharma Lawyers

Counsel for the First and Second Respondents: Mr S Lloyd SC with Mr PG Bickford

Solicitor for the First and Second Respondents: Clayton Utz

Migration Amendment Regulations 2007(Cth)

Migration Act 1958(Cth)ss 116(1)(b), 474(2)

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