Rahman v Minister for Immigration and Citizenship

Federal Court of Australia|2012-11-23|Before: Yates J

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia (the Federal Magistrates Court) given on 12 April 2012 which dismissed an application for judicial review of a decision of the second respondent, the Migration Review Tribunal (the Tribunal), made on 7 October 2011. By that decision the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), not to grant the appellant a Skilled (Provisional) (Class VC) visa.

Background 2 The appellant is a citizen of Bangladesh. He applied for a Skilled (Provisional) (Class VC) visa on 15 July 2009. This visa permits graduates of Australian educational institutions and people who have held temporary skilled visas to reside in Australia temporarily in order to obtain skills and qualifications required for permanent General Skilled Migration visas. At the time the appellant's visa application was lodged, the Skilled (Provisional) (Class VC) visa class contained the following subclasses: Subclass 485 (Skilled - Graduate) and Subclass 487 (Skilled - Region Sponsored). The appellant applied under Subclass 485. 3 The criteria for a Subclass 485 visa are set out in Sch 2 to the Migration Regulations 1994 (Cth). Clause 485.221 requires that, at the time of the decision whether to grant the visa, the applicant's skills have been assessed by the relevant assessing authority as being suitable for the applicant's nominated skilled occupation. 4 In his application the appellant nominated his skilled occupation as a translator. He identified National Accreditation Authority for Translators and Interpreters Ltd (NAATI) as the relevant assessing authority. 5 At the time of the delegate's decision on 2 March 2010 the appellant had not provided evidence of a successful skills assessment. The delegate thus found that the appellant had been unable to meet the requirements of cl 485.221 and refused to grant the visa. 6 The appellant had applied for a skills assessment by NAATI on 17 June 2009 but was unsuccessful when he sat for his test on 16 September 2009. On 14 January 2010 the Department of Immigration and Citizenship (the Department) wrote to the appellant requesting that he provide a skills assessment for his nominated occupation. It is not clear whether the appellant responded to this request or informed the Department that he had been unsuccessful when assessed by NAATI on 16 September 2009. These facts were, however, before the Tribunal at the time that it made its decision. 7 On 19 March 2010 the appellant applied to the Tribunal for a review of the delegate's decision.

The Tribunal proceeding 8 On 25 August 2010 the Tribunal wrote to the appellant requesting that he provide a skills assessment for his nominated occupation by 22 September 2010. 9 On 22 September 2010 the appellant's then migration agent wrote to the Tribunal advising that the appellant had not passed his skills assessment. The agent sought an extension of time to enable the appellant to undertake a further test. The Tribunal agreed to an extension to 21 October 2010 and, on 23 September 2010, advised the appellant accordingly. 10 On 21 October 2010 the appellant's migration agent wrote to the Tribunal advising that the next NAATI test was on 17 November 2010. The agent sought a further extension to enable the appellant to sit for that test and provide the results. The Tribunal agreed to an extension to 7 January 2011 and on 10 December 2010 advised the appellant accordingly. 11 On 6 January 2011 the appellant's agent again wrote to the Tribunal advising that the appellant "has not obtained the required NAATI result yet". In fact the appellant sat for the test on 17 November 2010 but was unsuccessful. The agent's letter continued: We would like to request for time extension to provide his NAATI result. He has contacted the NAATI centre for the test booking but the office was closed due to Christmas holiday, therefore he can only book for the test and get the confirmation on Monday 10/1/11. We would forward it to you soon as it is available. We would appreciate if you can kindly give final chance for him to pass the test this time. We really appreciate your kind understanding in this matter. [As in original] 12 On 7 January 2011 the Tribunal advised the appellant that it had agreed to an extension to 4 February 2011. 13 On 3 February 2011 the appellant's agent again wrote to the Tribunal to seek yet another extension of time. The letter stated: Further to your letter dated 7/01/2011 in which an extension of time has been granted up to 4/2/11, we would like to advise that the applicant has not obtained the required NAATI result yet. We would like to request for an extension of time to provide his NAATI result. He has contacted the NAATI centre for the test booking on 24 March 2011 at 1pm. Please find attached tax invoice & candidate scheduling form from NAATI. We would appreciate if you can kindly give a final chance for him to pass the test this time. The results will be available 6 - 8 weeks after the test date. We really appreciate your kind understanding in this matter. [As in original] 14 On this occasion the Tribunal decided not to grant a further extension. It wrote to the appellant on 4 February 2011 advising him that the information it had originally sought on 25 August 2010 had to be provided by 4 February 2011 as previously advised. The information was not provided. 15 On 15 February 2011 the Tribunal wrote to the appellant inviting him to give evidence and present arguments relating to the issues arising in relation to the decision under review. A hearing was appointed for 1 June 2011. 16 The appellant was due to sit for a further test with NAATI on 30 March 2011 but did not attend, apparently for health reasons. However, on 18 May 2011, the appellant did sit for a test. It seems that, at the hearing before the Tribunal on 1 June 2011, he advised that he was expecting his results in 10 to 12 weeks time. The Tribunal gave the appellant additional time to provide these results. The appellant provided these results on 26 August 2011. He was again unsuccessful. 17 On 5 September 2011 the appellant sent the Tribunal a copy of an admission slip from NAATI stating that the appellant was to sit for another test on 7 October 2011.

The Tribunal's decision 18 On 7 October 2011 the Tribunal decided to affirm the delegate's decision. 19 The Tribunal's decision record states its findings and reasons as follows: 17. … on 25 August 2010, the applicant was invited by the Tribunal pursuant to section 359(2) to provide a skills assessment for his nominated skilled occupation skilled occupation, ASCO 2529-15 (Translator) on 22 September 2010. The applicant provided an invoice from NAATI on that date. He requested an extension of time to facilitate sitting the test and for the results to be provided. As of 6 January 2011, the applicant's agent advised that no results were yet available. On 15 February 2011, the applicant was invited to appear before the Tribunal on 1 June 2011 and provided a response to hearing invitation dated 27 May 2011. The applicant was again to sit the NAATI test on 30 March 2011, but was ill on that date and unable to attend. He provided medical notes relating to his illness and an illness of his daughter. The applicant appeared at his hearing on 1 June 2011. From the time of the lodgement of the review application he had changed migration agents on a number of occasions. 18. On 26 August 2011, the applicant provided the results, and he was unsuccessful. On 5 September 2011, the applicant provided confirmation of his admission slip for another sitting of the NAATI test to be held on 7 October 2011. 19. The issues for the Tribunal to address are whether the applicant had provided a suitable skills assessment for his nominated skilled occupation. 20. On the evidence before the Tribunal, the applicant nominated the occupation of ASCO 2529-15 (Translator) which is a skilled occupation specified in the relevant instrument. For that occupation, the relevant assessing authority specified is NAATI. The applicant has repeatedly sat the required examinations and been unsuccessful. He initially lodged his application on 16 July 2009, and his application for review on 19 March 2010. Clearly, he has had ample time to provide a suitable skills assessment for his nominated skilled occupation but has failed to do so pursuant to IMMI 09/031. Despite the Tribunal having provided the applicant with a generous opportunity to provide a suitable skills assessment for his nominated skilled occupation, none was received from the applicant. Accordingly, the Tribunal is not satisfied that the applicant has provided a suitable skills assessment for his nominated skilled occupation by a relevant assessing authority. [As in original]

The Federal Magistrates Court 20 The appellant commenced his proceeding for judicial review in the Federal Magistrates Court on 8 November 2011. The grounds of his application were stated as follows: 1. The Second Respondent made jurisdictional error by filing to have regard to relevant evidence in that having been advised that that the applicant had sat a NAATI test on 12 October 2011, it made a decision on 10 October 2011 without waiting the result of the NAATI test. 2. The Second Respondent failed to exercise, a constructively failed to exercise jurisdiction or discretion, by failing to consider whether to defer its decision until the result of a NAATI test sat by applicant on 12 October 2011 was known. [As in original] 21 In his reasons the presiding Federal Magistrate recorded that, as the matter came to be argued, two matters were advanced as the reasons why it was said that the Tribunal had fallen into jurisdictional error. The first matter was that the Tribunal had not taken into account a relevant consideration, namely that the appellant had complied with the requirements of cl 485.221 in that his skills had been assessed by NAATI as at 7 October 2011. The second matter was that the failure of the Tribunal to grant any further extensions of time to the appellant was unreasonable. His Honour rejected both grounds. 22 As to the first matter his Honour noted that the Tribunal did not have evidence before it that the appellant had in fact sat a test with NAATI on 7 October 2011. All the Tribunal had before it was an admission slip for the test. His Honour reasoned that a number of things might have happened: the test might not have been held on 7 October 2011 or the appellant may simply have not sat for the test. As to the first possibility, his Honour noted that, in fact, the appellant sat for the test on 12 October 2011. It seems that this finding was based on evidence which the appellant had adduced on the hearing of the application for judicial review. As to the second possibility, his Honour noted that the Tribunal had found that the appellant had failed to sit for the test in March 2011 due to health reasons. Thus his Honour held that it could not be said, on the basis of the material before the Tribunal at the time it made its decision, that the appellant had in fact sat for the NAATI test on 7 October 2011. Thus this asserted fact was not a matter that should have been taken into account before the Tribunal came to its decision. 23 As to the second matter that was argued, his Honour noted s 353 of the Migration Act 1958 (Cth) (the Migration Act) which provides: (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits of the case. 24 His Honour also noted s 363(1)(b) of the Migration Act which provides: (1) For the purpose of the review of a decision, the Tribunal may: … (b) adjourn the review from time to time; … 25 His Honour (at [10]) found as follows: The Tribunal's discretion is not totally unfettered but it is certainly open to it to conclude that after the very lengthy period of time between applying for his visa and having the merits review undertaken the applicant should have been able to provide the necessary evidence. It was entitled to consider that in order to comply with the requirement to make the decision quickly, which is as important as any of the other requirements, there would have to be an end to the continued extensions. In my view the Tribunal did not fall into jurisdictional error in the manner in which it exercised its discretion not to extend the time even further. 26 His Honour also noted a further contention by the appellant that the Tribunal failed to consider the particular situation of the NAATI tests which, unlike other tests, were conducted infrequently, with the results taking some time to be given. In this connection his Honour (at [11]) held: … It seems to me by granting the very lengthy periods of extension that were granted it could be implied that the Tribunal did exactly this. But even if it had not I do not think that its failure to do so constitutes a jurisdictional error. 27 His Honour therefore dismissed the application.

The appeal 28 The notice of appeal sets out four grounds, although only grounds 2, 3 and 4 were pressed when the appeal was called on for hearing. Those grounds are expressed as follows: 2. In holding (at [7]) that the Tribunal did not have evidence the applicant sat a skills assessment test on 7 October 2011 and was therefore not required to take that consideration into account, His Honour erred in taking into account material which was not before the Tribunal and was therefore irrelevant to whether or not the Tribunal had committed jurisdictional error. Particulars The only evidence before the Tribunal as to the date of the appellant's last skills assessment test was a National Accreditation Authority for Translators and Interpreters ("NAATI") admission slip (at page 140 of the Court Book) that indicated that a skills assessment test was scheduled for 7 October 2011. The Tribunal proceeded (at paragraph 16 of its reasons, page 146 of the Court Book) on the basis that a test was to be held on 7 October 2011, the same date as the decision of the Tribunal the subject of the proceedings before the Federal Magistrate. A letter from NAATI to the appellant dated 27 March 2012, tendered at the hearing and marked as "Exhibit 1", was the only evidence that the appellant had sat a skills assessment test on 12 October 2011, as opposed to 7 October 2011. 3. In holding (at [10]) that the Tribunal did not fall into jurisdictional error in exercising its discretion not to adjourn the review, His Honour erred in failing to consider or give sufficient weight to the following relevant considerations: a) whether in all the circumstances the exercise of the Tribunal's discretion in that manner was "fair" and "just" for the purposes of subsection 353(1) of the Migration Act; and b) whether in all the circumstances the exercise of the Tribunal's discretion in that manner was "according to substantial justice" for the purposes of paragraph 353(2)(b) of the Migration Act. Particulars His Honour (at [10]) held that the exercise of the Tribunal's discretion in disallowing any further extension of time was valid by reference only to satisfaction of the requirement that the Tribunal make its decision "quickly". 4. On the evidence, it was not reasonably open for His Honour to have held (at [11]) that: a) "by granting the very lengthy periods of extension that were granted" it could be concluded that the Tribunal had had regard to the relevant consideration which was the infrequency with which the relevant skills assessment test was held and the lengthy period of time taken for results to be received; and b) even if the Tribunal had not taken into consideration the infrequency with which the relevant skills assessment test was held and the lengthy period of time taken for results to be received, its failure to do so does not constitute jurisdictional error. Particulars Documents contained in the Court Book indicate that it took approximately three months for NAATI to notify the applicant of the results of a sitting of the Professional Translator Test, whereas the Tribunal was only willing or able to grant extension of 28 days at a time. The Tribunal makes no reference in its reasons or correspondence to the frequency of the NAATI tests or the length of time taken for results to be received.

Ground 2 29 The gravamen of the appellant's submission is that the presiding Federal Magistrate erroneously relied on evidence which the appellant himself had adduced, which showed that the appellant did not sit for the NAATI test on 7 October 2011, but on 12 October 2011. The evidence on which his Honour appears to have relied in that regard was a letter from NAATI which shows that the appellant did indeed pass a test which he sat on 12 October 2011. The tender of this letter was not limited in any way. The appellant submits, however, that it could only be used by his Honour to show that the granting of relief on the appellant's application for a review would not be futile. Thus, according to the appellant, his Honour proceeded on a finding of fact which was not a fact found by the Tribunal and that this demonstrates appealable error. 30 As to the facts found by the Tribunal, the appellant submits that its finding that the appellant had provided evidence that he was to sit for a further test on 7 October 2011 was, in substance, a finding that the appellant did in fact sit for a test on that day. The appellant then says that, in coming to its decision, the Tribunal failed to take that fact into account and thus it failed to properly exercise its jurisdiction. 31 I am unable to accept this argument. First, it proceeds from a finding which the appellant wishes to attribute to the Tribunal but which the Tribunal plainly did not make. The Tribunal did not find that the appellant sat for a further test on 7 October 2011, only that he had provided confirmation that he was to sit for a further test. That is precisely the point that the presiding Federal Magistrate was seeking to make in [7] of his reasons. His Honour was there explaining that it could not be an error for the Tribunal not to assume that the appellant did in fact sit for the test on 7 October 2011. His Honour canvassed two possibilities in order to illustrate the point. Both possibilities were rational and reasonable; one of them was positively shown to be valid by the letter which the appellant had himself tendered. In my view it would have been artificial in the extreme for his Honour to have simply ignored that evidence when seeking to deal with the two possibilities he had raised. I am not satisfied that his Honour committed any error in that regard. In any event, the point made by his Honour holds good, even without consideration of the letter. 32 Secondly, I am not persuaded that the Tribunal failed to take into account the fact that the appellant had confirmed that he was to sit for a test with NAATI on 7 October 2011. The appellant points to the fact that no express mention of this fact is contained in [20] of the Tribunal's reasons. However, the Tribunal expressly referred to that fact in [18] of its reasons. I am unable to accept that somewhere between [18] and [20] of its reasons the Tribunal isolated and disregarded what it had found in [18]. 33 For these reasons this ground of appeal fails.

Grounds 3 and 4 34 It is not in doubt that a denial of procedural fairness by the Tribunal is capable of constituting jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. An unreasonable refusal to adjourn can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]. 35 The obligations imposed by s 353 on the Tribunal, when carrying out its functions under the Migration Act, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick, and, when reviewing a decision, to act according to substantial justice and the merits of the case, are not merely aspirational exhortations. They are substantive requirements that the Tribunal must obey: Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 at [18]-[20]. 36 In the present case the appellant submits that the only issue for the Tribunal was whether to grant a further extension of time to allow the appellant to provide a relevant skills assessment. He submits that what was relevant in that regard was not so much that he had been given an "extended" period of time to provide the assessment, but rather the nature of the opportunity he had had to obtain that assessment and the explanation he had given for not having achieved a successful assessment. 37 In this connection the appellant submits that the NAATI test is conducted considerably less frequently than other tests of English language proficiency and the results take considerably longer to be notified. Moreover, he submits that his ability to avail himself of the opportunity to sit for the NAATI tests had been affected by illness. He submits that the Tribunal's reasoning did not take account of these matters. 38 The appellant submits that it was unreasonable for the Tribunal to proceed to make its decision on 7 October 2011 knowing that: the only reason the appellant would be denied the visa was the absence of a skills assessment; the skills assessment test was to be undertaken on that day; and there was nothing more the appellant could do. 39 The appellant points to the fact that no inquiry had been made by the Tribunal in relation to that test and that no reason was advanced by the Tribunal as to why it could not afford him the benefit of the time it would take for the results of that test to be known. 40 The appellant also points to the lack of prejudice to the Minister if "an extension of time of a few weeks" were to be granted. He submits that any such prejudice is clearly outweighed by the prejudice the appellant suffered by time not being extended. 41 The appellant submits that the Tribunal's reasoning only focuses on the amount of time he had been afforded and gave no consideration to countervailing considerations, namely the "catastrophic effect" that a refusal would have for the appellant, the infrequency of the tests, and "the fact that the appellant would, either that day or within days, (successfully) sit a further skills assessment test and it would only be a relatively short period of time before the results of the October sitting would be known". 42 The appellant submits that the presiding Federal Magistrate erred in concluding that, by proceeding to give its decision on 7 October 2011, the Tribunal was not acting unreasonably and had not fallen into jurisdictional error. The appellant's submissions provide no greater elaboration of this alleged error than that given by the notice of appeal itself. 43 Although no formal application had been made by the appellant to the Tribunal for a further extension of time to enable him to satisfy the requirements of cl 485.221, it is plain from the Tribunal's statement of its findings and reasons that it was cognisant that the appellant had applied to sit again for the NAATI test and that he had provided evidence that he intended to do so on 7 October 2011. That evidence was in the form of an admission slip provided by NAATI that the appellant was a candidate for the test on that day. Thus what the Tribunal had, at the time it made its decision, was the appellant's stated intention to sit for the NAATI test on that day. 44 However, what the Tribunal also had before it was the fact that the appellant had sought, and had been granted, a number of extensions of time to enable him to satisfy the cl 485.221 requirement. The evidence shows that, in the course of the Tribunal's review, it granted the appellant four extensions of time to enable him to satisfy that requirement. The last occasion was at the hearing on 1 June 2011, even though on 4 February 2011 the Tribunal had expressly refused to grant any further extension and had advised the appellant that it may make a decision on the review without taking any further action to obtain the information it had sought from the appellant. The extension granted by the Tribunal on 1 June 2011 was to enable the appellant to obtain the results of the test he had undertaken on 18 May 2011. 45 Thus, as matters stood at the conclusion of the hearing on 1 June 2011, the appellant had had the benefit of three granted extensions of time as well as the benefit of a de facto extension between 4 February 2011 (when his fourth request for an extension was refused) and 1 June 2011 (when the hearing was held). In the latter period of time the appellant had had the opportunity to sit for two NAATI tests. He was unable to sit for one of those tests (on 30 March 2011) on the grounds of illness, but he did sit for the test on 18 May 2011, which he failed. He had also failed the NAATI tests on the two previous occasions on which he had sat for them (16 September 2009 and 17 November 2010). 46 Had those matters represented the only state of affairs as at 7 October 2011, could it be said that, by affirming the delegate's decision on that day, the Tribunal had acted unfairly or unjustly or had failed to act according to substantial justice and the merits of the case? In my view, the answer to that question must be "no". 47 Does the fact that the Tribunal was on notice that the appellant intended to sit for a further NAATI test on 7 October 2011 change the position so that it can be said that, when the Tribunal made its decision on that day with that knowledge, it acted unfairly or unjustly or failed to act according to substantial justice and the merits of the case? 48 I am not persuaded that that question should be answered favourably to the appellant by reason of that additional fact. In my view the fact that the Tribunal was on notice that the appellant intended to sit for a further NAATI test on 7 October 2011 did not significantly change the circumstances before it. All that was in prospect was that the appellant might sit for the test on 7 October 2011 and that he might pass it. However, for all the Tribunal knew, the appellant might not sit for the test on that day or, if he did, he might not pass it. Based on his previous attempts to pass the NAATI test, the appellant's prospects (assuming he did sit for the test as indicated) could not be said, at that time, to be propitious. 49 The plain fact is that the Tribunal was not under an obligation to indefinitely postpone finalisation of its review. Similarly, it was not under an obligation to postpone the finalisation of its review whenever the appellant informed it of his intention to sit for another test. If it were under such an obligation the review process could be postponed indefinitely by the expedient of the appellant simply providing the Tribunal with evidence that he had applied to sit for the test again. On the rationale of the appellant's argument he could always ask, rhetorically, what prejudice would there be to the Minister if an extension of time of a few weeks were granted compared to the prejudice to him if such an extension were not granted? 50 As at 7 October 2011 the Tribunal can be taken to have been alert to the consequences for the appellant of a refusal to grant the visa he had sought. It can also be taken to be cognisant of the relative infrequency of the NAATI assessments and the time taken for results to be notified. These were part of the appellant's particular circumstances that were before the Tribunal. Contrary to the appellant's submissions, I do not accept that these matters were not taken into account by the Tribunal when it made its decision. The Tribunal's recognition of those circumstances lies behind the particular extensions of time that the appellant had sought and that the Tribunal had granted. That recognition is captured in the Tribunal's recitation of the facts in its decision record and its finding at [20] that it had "provided the [appellant] with a generous opportunity to provide a suitable skills assessment for his nominated skilled occupation". Contrary to the suggestion implicit in the appellant's submissions, it was not for the Tribunal to make inquiries of the appellant as to whether he had been able to obtain a satisfactory assessment. Rather, it was for the appellant to satisfy the Tribunal that he had achieved a satisfactory assessment. 51 The appellant is now able to point to the fact that he did sit for the NAATI test again (albeit not on 7 October 2011 as he had indicated to the Tribunal) and that he did pass it. However, the present knowledge of that fact cannot alter the position as at 7 October 2011. That part of the appellant's submission that I have quoted in [41] above reveals this very difficulty in his main contention on this appeal: as at 7 October 2011 the Tribunal did not know that the appellant would either that day or within days successfully sit for a further skills assessment test and that that successful result would be known a relatively short period of time thereafter. Although one can have sympathy for the appellant knowing that he has now passed the NAATI test, regrettably that cannot be a proper basis for impugning the Tribunal's decision made on 7 October 2011 in the circumstances that then obtained. 52 In my view, by making its decision on 7 October 2011, the Tribunal did not fail to carry out its functions to provide a review that was fair and just. In my view the Tribunal acted according to substantial justice and the merits of the case before it. I am not persuaded therefore that the presiding Federal Magistrate erred in coming to that conclusion. In particular, it was not an error for his Honour (at [10]) to find that it was open to the Tribunal to conclude that, after the very lengthy period of time between applying for his visa and having the merits review undertaken, the appellant should have been able to provide the necessary evidence. Similarly, it was not an error for his Honour to find that the Tribunal was entitled to consider that it was subject to a requirement to provide a mechanism of review that was quick or that that requirement was as important as any of the other requirements stipulated in s 353(1) of the Migration Act. 53 Furthermore, in my view, his Honour did not err in concluding that the Tribunal did not fail to take into account the frequency of the NAATI tests. As I have noted above, the extensions of time previously granted by the Tribunal were at the appellant's request and for periods of time that he nominated in order for him to sit for those tests and to receive the results. No other conclusion is reasonably open. 54 For these reasons, grounds 3 and 4 of the appeal fail.

Disposition 55 It follows that the appeal must be dismissed, with costs. However, I should not let the matter pass without saying that, if there is some discretionary basis on which the appellant's visa application can now be considered, his circumstances appear to be such that an exercise of the discretion in his favour may well be warranted. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

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