NATP v Minister for Immigration & Multicultural & Indigenous Affairs

Application for judicial review of a decision of the Refugee Review Tribunal ('the RRT') 1 By application for a Business (Short Stay) Visa (i.e. for a stay up to 3 months) dated 11 January 2002, the applicant, a Chinese national, indicated to the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') that she proposed to stay in Australia for 20 days for the purpose of 'trade development; participate in seminars'. Attached to the application was an invitation to a number of Chinese business people, including the applicant (as 'Manager, Harbin Wooden Articles Co Ltd') from Australia Heilongjiang (China) Institute (based in Kulnura, New South Wales), to visit Australia under an itinerary 'planned at twenty days'. 2 It appears that this visa was issued. On 3 April 2002, the applicant arrived in Australia accordingly. 3 However, on 15 April 2002, she lodged an application for a Protection (Class XA) Visa. 4 This application was accompanied by the following statement: ' ... I left China in fear of being persecuted by the government as a Falun Gong member. I know Australia is a country which will provide humanistic rescue to those who is in the danger of being persecuted by his or her country. Therefore, I'm applying for protection from Australia as I have a well-founded fear of being persecuted in China. I used to work at Harbin Ying Fa Industrial Company as a clerk between 1993 and 1996 and then at Harbin Qi Mo La Aret and Craft Company as a manager. It is my belief in Falun Gong that brought me the possibility of persecution. I became a Falun Gong member in April 2000. Before that time I had heard about this special social group, and about the tenets of Falun Gong, which is also known as Falun Dafa. It draws on aspects of Taosism, [B]uddhism, and the meditation techniques of Qigong (a traditional martial art) with the teachings of Li Hongzhi, who left China avoiding from being persecuted by Chinese government in 1998. My friends often told me the mysterious healing power of Falun Gong in diseases, but it was the national wide crackdown on Falun Gong made me interested in this special group. I was really shocked by the massive campaign against Falun Gong Group and its leader launched by Chinese Government. On April 25 1999, more than 10000 members of Falun Gong gathered in front of the Zhongnanhai leadership compound, where most of the country's top officials live and work, to protest the detention of some Falun Gong practitioners and to seek government acknowledgement of the legal practice of Falun Gong. Following the demonstration, the government decided that Falun Gong was a threat to the social stability. In July 1999 Chinese government officially declared Falun Gong illegal and began a nationwide crackdown against the movement. Around the country, tens of thousands of practitioners were rounded up and detained for several days, often in open stadiums with poor, overcrowded conditions with inadequate food, water, and sanitary facilities. Practitioners who refused to renounce their beliefs were expelled from their schools or fired from their jobs. Some of those detained were government officials and Communist Party members. Some high-ranking practitioners were forced to break their ties to Falun Gong on national television. The public security bureaus even forbade the renting of apartments to members of the Falun Gong. In addition to detaining Falun Gong practitioners, in July the Government also launched a massive propaganda campaign against the group. As part of its crackdown on Falun Gong, the government also seized and destroyed things concerning Falun Gong, including over 1 million books, tapes, and videos, even facilities of printing Falun Gong books. In spite of the harshness of the crackdown, Falun Gong demonstrations continued around the country up to now. In October 1999, the pace of protests and detentions picked up as Falun Gong practitioners from around the country converged on Beijing and began a series of peaceful demonstrations in Tiananmen Square to protest a new anti-cult law that was considered by the Standing Committee of the National People's Congress. Most of the protests were short-lived, as the police, who roamed the square in increased numbers, questioned persons and quickly arrested anyone who appeared to be a Falun Gong member. On some days, crowds of practitioners were arrested as soon as they entered the square in small groups. During the last week of October, an important Communist Party official told the foreign press that 3000 persons from other parts of China were detained in police station of Beijing. On November 16, during a visit to Beijing by N.N. Secretary General Kofi Annan, more than a dozen Falun Gong practitioners who unfurled a Falun Gong banner were detained forcibly in Tiananmen Square. On November 30, Li Lanqing reported in a speech to Communist Party members that over 35000 detentions of Falun Gong practitioners were made by the government between July 22 and October 30. Chinese authorities also detained foreign practitioners. For example, in April 2000, four foreign practitioners of Falun Gong were detained along with other practitioners in Guangzhou. Three foreigners were released a few days later and expelled from the country. On December 15, three Chinse nationals with foreign residency were detained in Shenzhen for visiting other Falun Gong practitioners; they were sentenced to 15 days of administrative detention. Harbin city of Harbin province, is one of the important base of Falun Gong group as there are more than ten thousands Falun Gong practitioners here. Harbin is an industry city where most of the financial income is supported by the state-owned industries. But because of the unreasonable systems of state-owned enterprises a large number of state-owned enterprises suffered from the depression and thousands of staff of those enterprises were laid off or dismissed. The most important reason, I think why people in my hometown were involved in Falun Gong and became Falun Gong members, is that the laid-off staff is seeking for a means of survival protection. They are facing the poverty and even the danger of survival. In China the medical treatment fees are very expensive, those laid-off workers cannot afford such expensive treatment at all because they cannot enjoy the social welfare which include the medical insurance once they are laid-off. So many laid-off workers chose Falun Gong with the hope to improve their health and avoid disease by practising Falun Gong. I decided to devoted [sic] myself to the movement of striving for a legal position for Falun Gong after knowing more and more about the nature of the group and the government's unfair treatment to Falun Gong. So I became a Falun Gong member in April 2000 and actively attended Falun Gong gatherings and associations. Even though I was busy with my business, I still actively promoted Falun Gong so as to let more people understand Falun Gong. On 25 February 2002, about 20 Falun Gong station leaders and I meet at one of our member's company planning for a demonstration to protest the recent detention of Falun Gong members by Harbin public security bureau. Soon after our meeting began, we were informed that the Bureau got to know our meeting that night and was sending a group of police to arrest us. We had to cancel that meeting and left the meeting room immediately. We were surprised that the police had noticed our secret meeting. Several minutes after I arrived at home, two policemen arrived too. They asked me where did I go just now. I lied that I went out for shopping (fortunately I did buy something on the way back). Then they interrogated me whether I had broken ties with Falun Gong (I was knew involved [sic] Falun Gong but stopped joining Falun Gong activities after receiving a series of instructions). I lied yes, I had not joined Falun Gong activities anymore. They questioned me over half an hour and then left. I was really scared because it was obvious that the police had noticed our group. So on the next day I discussed with several members who were also my good friends, about applying for a visa to Australia in case the disaster of being arrested and persecuted happen to us in near future. Because six of us had already have passports. It would not be a very difficult thing to left China for Australia. Avoiding from being arrested by the police, we decided not to meet for a while. And we began to apply for Australian visitor visa. After we were granted the visa on 12 March 2002, we decided to call on the meeting and plan for the demonstration again. We meet again to discuss the demonstration on 27 March at a restaurant on an excuse of celebrating birthday for one of our members. We were shocked again when we were suddenly surrounded by a group of police. We were taken to the police station and strictly questioned. But the police did not have any evidence that we were at a Falun Gong meeting, so we were released soon. We all were horrified by the facts that security authorities have noticed us and we are in the danger of being arrested anytime. On 2 April 2002 five members and I left China and we arrived at Australia on 3 April. We wanted to escape for a period of time as each of us has got a visa to Australia. We planned to ensure our safety through application for protection from Australia; then we may continue our striving for an official acknowledgement of Falun Gong activities in Australia while developing our business in Australia. We all wish some day Chinese government would understand Falun Gong and then we can return to China safely. But now we need Australian government's protection.' 5 The Department responded to this application by letter dated 14 May 2002 to the application relevantly as follows: 'In your application you claimed that you would be persecuted on return to the PRC because of your involvement in Falun Gong. In assessing your application I have noted the following information: · Advice provided by DFAT [Department of Foreign Affairs and Trade] in 2000 indicates that the following categories of Falun Gong adherents are those in which the PRC authorities are likely to have a particular interest: leaders and organisers in the movement; and ordinary members who are also members of the Communist party, government employees, or workers in state-owned enterprises. Other members of Falun Gong are unlikely to be of particular interest to the authorities and, as such, are able [to] continue to practise Falun Gong in private. · Information on the Falun Gong website indicates that public or group activities are not fundamental to the practice of Falun Gong. · China banned Fa1un Gong on 22 July 1999, branding it an illegal organisation that corrupted the people's minds, sabotaged stability and sought to replace the government. Its key/core leaders faced charges ranging from disturbing public order to subversion and leaking state secrets. If convicted of latter charges, they face up to life imprisonment. Majority of Falun Gong practitioners would be forgiven if they promised not to take part in the movement's future activities. Key members who admit their mistakes voluntarily and "exposed" Falun Gong's secrets would be spared prosecution. (China to prosecute Falun Gong leaders, Reuters Business Briefing, 24 August 1999. CX37205). · A clear line needs to be drawn between common practitioners who seek ways for keeping fit and Li Hongzhi and organisers of illegal activities who have political reasons for causing chaos, emphasising the need for a good command of policy by those carrying out the programme to isolate the few organizers. Those in the cult who have made serious errors will be dealt with leniently as long as they have confessed to their illegal activities and analysed their errors, and those who contribute to the fight against Falun Gong may be exempt from punishment. But the few organisers behind the illegal activities who damaged social stability and have committed crimes will be punished in accordance with the law, the circular says. (China rules law-breaking Falun Gong practitioners to face punishment, Reuters Business Briefing, sourced from Xinhua News Agency, 24 August 1999, CX37206) · As far as we can assess, the Chinese government has applied judicial or administrative penalties only against those who have organised Falun Gong activities and/or protests in China. Ordinary members have not been treated in the same way and, we believe, generally remain able to practice Falun Gong exercises in private. (DFAT - Update information on Falun Gong, Country Information Report 58/00, 4 February 2000, CX39773) · Although there may be some professional politicians who practice [sic] Falun Dafa, the system itself has no affiliation to any political party or government. Practitioners are encouraged to conduct themselves with "Truth-Compassion-Tolerance" in all situations. The goal is to become enlightened to the truth of the human life and to cultivate to higher levels. The focus is on an individual's self-examination and self-improvement rather than the development of an organisation or a group. (Introduction to Falun Dafa Internet site: , 16 December 1999) · Independent information downloaded from the Internet indicates that the four Falun Gong practitioners who have been tried and sentenced in China recently (Li Chang, Wang Zhiwen, Ji Liewu and Yao Jie) were Communist Party members holding influential positions in government or business (China tries Falun Gong members; JCS Infodoc. Ppt:\, 25 December 1999, CX39195). There is no evidence before me that the claimant [sic] has such a profile. · Another report from Reuters indicates that Falun Gong practitioners who have attempted to stage demonstrations in Tiananmen Square (especially since the movement was declared "an evil cult" in October), have been whisked away by waiting police and freed after lectures on the "evil" of Falun Gong (China jails Falun Gong leader, detain others; Reuters Business Briefing, sourced from Reuters; CIS Document No CX39197, 3 January 2000) · A recent report in Asiaweek regarding Falun Gong devotees states: "But there are still so many devotees that police turn a blind eye a[s] long as they do not call attention to themselves." (A Two-Way Siege: Falun Gong struggles after being banned -but still scares Beijing; Asiaweek, 11 February 2000) · Advice provided by the Department of Foreign Affairs and Trade (DFAT) in 1998 indicates that PRC nationals who depart that country legally, that is with a valid passport and exit visa, have been thoroughly vetted by security officials. It is therefore unlikely that a person who has come to the adverse attention of the authorities, for example because of their involvement with Falun Gong, would have been granted an exit visa. · Advice provided in November 1999 confirms that checks are in force to prevent the departure of Fa1un Gong activists in particular (DFAT - Falun Gong aka Falun Dafa in China. Country Information Report, 5 Nov 1999). · Advice provided by a senior lecturer in Chinese politics at the University of New South Wales to the Refugee Review Tribunal in 1994 indicates that, although bribery is commonplace in the PRC, a PRC official would not take a bribe to process the exit documents of a high profile dissident or person wanted by the PSB as the penalties for helping such people leave the country are very serious. It is important that you are aware that the information from these sources will be taken into account in assessing whether you meet the criteria for a Protection Visa. ...' 6 The applicant did not reply to this letter. 7 On 21 June 2002, the Minister's delegate refused the applicant's application for a Protection (Class XA) Visa. 8 By application dated 3 July 2002, the applicant sought a review of this decision by the RRT. 9 In support of her review application, the applicant submitted a letter dated 18 October 2002 relevantly as follows: '1. It is unreasonable for DIMIA to be doubtful on my involvement in organised group of people practising Falun Gong and the danger I am facing upon returning to China. I was really disappointed about this. As I stated in my original statement, because of my active attendance in Falun Gong activities, I was in a genuine fear of being persecuted by China's government. I would have been arrested and persecuted like other Falun Gong members if I did not leave China. The government's unfair treatment to Falun Gong and its practitioners strengthened my devotion to Falun Gong. I decided to put all my efforts to struggle for a fair acknowledgement of Falun Gong in China. In order to avoid being arrested by the government, I had to join and support Falun Gong activities secretly. But I completely devoted myself to promote Falun Gong so as to let more people understand Falun Gong. It was our intention to develop a demonstration protesting the detained Falun Gong members pushed us to the edge of danger. On 25 February 2002, 21 Falun Gong station leaders and I meet at my company. We were planning for a demonstration to protest the recent detention of Falun Gong members by Harbin public security bureau. Soon after our meeting began, one of our good friends who worked at Harbin Public Security Bureau informed us that the Bureau got to know our meeting that night and was sending a group of police to arrest us. We had to cancel that meeting and dismissed immediately. On the next day, two of the members who also attended that meeting that night reported that two policemen went to their homes and interrogated them soon after they returned homes [sic] that night. We were horrified and therefore decided not to meet for a while. But I had an intuition that the unfortunate thing will happen to us in near future. On 27 March 2002 we pretended to hold a birthday party at a restaurant and planned again for the demonstration. Unexpectedly, a group of policemen came and take us to the police station. Without any evidence, we were set free. It was obvious that the security authorities have noticed us and we are in the danger of being arrested anytime. 2. The delegate believes that "the applicant would be able to continue to practice Falun Gong as an individual and that would not attract the adverse attention of the PRC authorities", but this is not the fact in China. The real fact in China now is, whoever practices Falun Gong, no matter secretly or publicly, will definitely be jailed as soon as the practice is known by relevant authorities. Especially those practitioners who return from foreign countries are the focus of the punishment and detainment because they are believed to have spread Falun Gong abroad and damaged the benefit of the country. Therefore, I will definitely be put into jail if I return to China and continue to practice [sic] Falun Gong as my practice history and experience of going abroad have been known by the authorities. 3. The DIMIA officer considered that an ordinary adherent of Falun Gong would not attract adverse attention of the authorities. And he has doubt that I could obtain a passport and exit visa and departed from China without incident denotes normal, non-persecutory state citizen relationship. One thing I need to point out is that the DIMIA officer mixed the two concepts: being an important Falun Gong member and being persecuted. The officer thought that a Chinese citizen involved with Falun Gong would not be granted a passport or visa. It's true that Chinese citizens must have been thoroughly investigated by security officials before they travel abroad legally. But the point is, not all Falun Gong members cannot pass the examination of the security authorities. Otherwise, why there are so many Falun Gong members, who came from China after Chinese government banned Falun Gong, in different countries of the world? Chinese government has issued numerous passports to Falun Gong members who don't play important roles in Falun Gong movement. I myself obtained the passport not because I didn't practice Falun Gong, but because I was not regarded as the very key member of Falun Gong by Chinese government. But not being an important Falun Gong member does not mean I have not been persecuted before and I will not been persecuted in the future if I return to China. The DIMIA officer thought that I was granted a passport, therefore I was not regarded as the key person by Chinese government, and therefore I am not in the danger of being persecuted. It's not a logical deduction. It's correct that I was not regarded as a key member of Falun Gong by Chinese government. But it's incorrect to believe that I will not be persecuted if I return to China. Chinese government implements increasingly strict prohibition on Falun Gong. So long as you have any ties with Falun Gong you are the target of the punishment. I am definitely the target because of my previous involvement in Falun Gong and my new experience abroad. Chinese Government held negative attitudes towards those Falun Gong members who go abroad because the government believes that they must have done things advocating Falun Gong abroad, which is the most evil thing to Chinese government. Therefore I will definitely become the target of punishment if I return to China. After arriving in Australia, I have enjoyed greatest freedom in practising Falun Gong, joining Falun Gong activities. Particularly, I can fully devote myself to the activities of articulating Falun Gong and striving for a wide reorganization of the sophisticated tenets of Falun Gong. The following are my participation into Falun Gong activities: 1) Practicing [sic] Falun Gong every morning with some other Falun Gong practitioners, and communicating with them about the improvement of practicing [sic] as well as the articulation of Falun Gong; 2) Joining the regular Falun Gong gathering at China Town every two weeks 3) Distributing Falun Gong brochures at Elizabeth Street, at Central Station, and China Town on every weekend. And on some weekends we held small exhibition for promoting people's understanding of Falun Gong. 4) Participating in the Falun Gong gathering at Darling Harbour 5) Participating the Falun Gong Day in May 2002 at Hyde Park I regard articulation of Falun Gong as the goal of my rest of life. What I'm striving for is to share the physical and spiritual benefits brought by Falun Gong with more people on the world, which is also the creed of Falun Gong. But I cannot achieve this goal if I return to China because Chinese government misunderstand the holly tenets of Falun Gong and hence doesn't allow the existence of Falun Gong at all. I would even have the danger of personal safety if I do anything related to Falun Gong in China.'

Application for judicial review 24 In her amended application to this Court for judicial review of the RRT decision (an application apparently drafted by a professional), the applicant relies upon the following grounds: '1. That the Tribunal failed to follow the requirements of the Migration Act 1958 section 424A. 2. That the Tribunal denied the Applicant procedural fairness in that it relied upon information adverse to the Applicant without giving the Applicant an opportunity to comment upon that information. 3. That the Tribunal did not make a genuine and realistic attempt to make the decision in a bona-fide manner in that: (a) The decision record contained pro-forma and repeated material. (b) The Tribunal did not afford to the Applicant "the benefit of the doubt" when there was no material to the contrary to what was being asserted by the Applicant. (c) The Tribunal did not notify the Applicant of material adverse to the Applicant and upon which it intended to rely. 4. The Tribunal applied the wrong test in that it inquired as to the situation when the Applicant left China without inquiring into what would be the position if the Applicant were now forced to return to China.' 25 (Section 424A provides: '424A. (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.') 26 It appears that ground 1 refers to a statement made by the RRT at par 39 of its decision, mentioned above, in the following context of the decision: '36. First, there is nothing in the claims of the Applicant which satisfies me that she knows anything of the Falun Gong movement, its philosophy or exercise regime. This is something that could and would have been explored with her at the hearing. I am not satisfied on the evidence before me that the Applicant is a genuine Falun Gong practitioner. 37. Second, is the claim of the Applicant, a woman apparently holding a senior position in her company and presumably on a reasonable salary, that she decided to take up Falun Gong in about April 2000 at a time when on her own evidence the crackdown on the movement by the Chinese government was gathering momentum. I find this to be implausible. 38. Third, the Applicant claims that the catalyst for her decision to seek to leave China and to come to Australia was the meeting aborted on 25 February 2002 because of a "tip-off" from a friend of one of the group that the meeting was to be raided by the PSB. "Several other members of the group and the Applicant decided to apply for an Australian visa in case they should be arrested in the near future." (DIMIA file folio 17 refers). 39. However, from information supplied to the Australian Embassy in Beijing by the Applicant's employer it is apparent that some time prior to 11 January 2002 the Board of Directors of the Applicant's company determined to market in Australia wooden flooring, furniture and wooden articles. To this end the company were prepared to send a director, the Production Manager and the Applicant (Marketing Manager) to Australia to take part in a trade and economy seminar being conducted by an Australian company, Australia Heilongjiang (China) Institute Pty Limited. Further the Applicant's employer was prepared to meet all the costs associated with the visit. Thus the decision that the Applicant would come to Australia was made at least 7 weeks before the Applicant claims that she decided to lodge an application for an Australia visa. The Australian Visa Office, Beijing checklist with respect to the Applicant is dated 11 January 2002 and contemplates a departure date at the end of January 2002 several weeks before the alleged aborted meeting of 25 February 2002. 40. The evidence supplied to the Australian Embassy in Beijing (which I accept) satisfied me that the Applicant was not leaving China in fear of persecution because of her adherence to Falun Gong but was leaving China at the behest of her employer on a genuine business trip. I do not accept that it is plausible that the General Manager or Board of Directors of the Applicant's company would early in 2002 assist Falun Gong practitioners to leave China.' 27 On behalf of the respondent Minister it is submitted as follows: '6 The application for review claims that the Tribunal committed a jurisdictional error by ignoring some unspecified part of her claim. It is not apparent what is being referred to. There does not appear to be any foundation for the allegation that any part of the applicant's claims were ignored. Mere omission of some detail in the Tribunal's reasons does not amount to failing to take anything into account. The obligation of the Tribunal is to provide reasons that set out the findings on any material questions of fact and refer to the evidence or other material upon which those findings were based: s 430, Migration Act. 7. The principal basis upon which the applicant failed before the Tribunal was that her claims to be a member of Falun Gong were not accepted. That of itself was a sufficient basis for the Tribunal decision. That conclusion does not appear to be affected by any error, jurisdictional or otherwise. For that reason alone, the application for review should fail. 8. It does appear that the Tribunal relied upon information about the applicant from the Australian Embassy in Beijing (RD 122 [39]), without giving particulars of that information to her as required by s 424A of the Migration Act and giving her an invitation to comment. However that is not a material omission in light of the independent bases upon which the application for review failed. This omission did not affect the conclusion that the applicant was not a follower of Falun Gong based upon her lack of information about the organisation (RD 122 [36], 124 [48]). Nor did it affect the alternative findings that even if the applicant was a follower, she was not of interest to the authorities and they would not have let her leave China if that were otherwise. In those circumstances, the omission did not have a necessary consequence in the ultimate decision to affirm the delegate's refusal to grant a protection visa.' 28 I agree with this submission, which is supported by NAHV of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 102 where Carr, Kiefel and Allsop JJ said (at [25] - [27]: '[25] It is not necessary for us to examine the extent of application of the decision in s 157. It is sufficient for us to say that here, in particular in the light of the presence of s 474 in the Act (but even in the absence of s 474) the failure to observe the procedural requirements of subs 424A(2) in circumstances where there was no unfairness or failure to accord procedural fairness did not amount to a failure to exercise jurisdiction or an exceeding of jurisdiction. [26] Mr Beech-Jones also submitted that when one looked at the structure of the Tribunal's reasons the question of the "dob-in" letter was not central to the rejection of the appellant's credit and his evidence. We agree. [27] In conclusion, to meet the point raised by the Court about the apparent failure to comply with subs 424(A)(2) of the Act it is sufficient to say that such failure was not jurisdictional, with or without any reconciliation process involving s 474. In these circumstances there is no basis to make an order in the nature of mandamus or prohibition: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; and S157, supra at [82]. To the extent that the remedy for injunctive relief in subs 39B(1), and any relief (including declaratory or injunctive relief) based on the jurisdiction conferred by par 39B(1A)(c) of the Judiciary Act or s 75(iii) of the Constitution together with s 32 of the Federal Court of Australia Act 1976 (Cth) can be seen as capable of being given in circumstances exhibiting non-jurisdictional error, we see no basis for any such relief here. This is so, apart from any other reason, both because of the effect of s 474 (the three Hickman provisos having been met) and as a matter of independent discretion, given the absence of any apparent prejudice to the appellant by the (non-jurisdictional) breach in question.' 29 These observations apply here. As has been mentioned, the RRT had already rejected, on the facts, the applicant's claims that she was a Falun Gong practitioner. 30 In my view, none of the grounds of review relied upon by the applicant has been established.

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