Vasiljkovic v The Honourable Brendan O'Connor [2011] FCAFC 125 | Case summary

Jessup J 3 This is an appeal by Dragan Vasiljkovic against a judgment of a single Judge of the court given on 19 November 2010, by which a proceeding commenced by the appellant was dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and O 20 r 5 of the Federal Court Rules as they stood at the time of the judgment. In the proceeding at first instance, the appellant sought declarations and other remedies in relation to steps which had been taken, or which were to be taken, in response to a request for the appellant's extradition by the Republic of Croatia ("Croatia"). There were five respondents in that proceeding, three of whom were Commonwealth government ministers, namely, the Honourable Brendan O'Connor (Minister for Home Affairs), the Honourable Robert McClelland (Attorney-General), and the Honourable Christopher Ellison (the former Minister for Justice and Customs). The other respondents were Croatia and the Officer in Charge of Silverwater Prison (where the appellant has recently been held in custody). They are also the respondents to the present appeal. It was pursuant to the motion of Croatia and the three Commonwealth Ministers referred to ("the respondents") that the primary Judge gave summary judgment against the appellant. 4 The appellant was born in the former Yugoslavia in 1954. He migrated to Australia in 1969. He subsequently became an Australian citizen, and was an Australian citizen at all times which were relevant to the proceeding below. 5 In response to a request from Croatia, the appellant was arrested on 19 January 2006 pursuant to a provisional arrest warrant issued under s 12(1) of the Extradition Act 1988 (Cth) ("the Act"). That subsection reads as follows: Where: (a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of a person; and (b) the magistrate is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country; the magistrate shall issue a warrant, in the statutory form, for the arrest of the person. The term "extraditable person" is defined in s 6 of the Act as follows: Where: (a) either: (i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or (ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and: (A) there is an intention to impose a sentence on the person as a consequence of the conviction; or (B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served; (b) the offence or any of the offences is an extradition offence in relation to the country; and (c) the person is believed to be outside the country; the person is, for the purposes of this Act, an extraditable person in relation to the country. The appellant was remanded in custody pursuant to s 15 of the Act. 6 In a proceeding commenced in the original jurisdiction of the High Court on 25 January 2006, the appellant sought habeas corpus upon the ground that certain provisions of the Act, and of regulations made under the Act, were invalid. That proceeding was determined adversely to the appellant on 15 June 2006: Vasiljkovic v The Commonwealth (2006) 227 CLR 614. 7 In the meantime, on 17 February 2006, Croatia requested the extradition of the appellant in respect of two offences of war crimes against prisoners of war pursuant to Art 122 of the Criminal Code 1998 (Croatia), and one offence of a war crime against the civilian population pursuant to Art 120, paras 1 and 2, of that Code. 8 On 18 March 2006, the then Minister for Justice and Customs (presumably acting as the delegate of the Attorney-General) issued a notice under s 16(1) of the Act stating that the extradition request had been received. Subsection (2) of that section provides as follows: The Attorney-General shall not give the notice: (a) unless the Attorney-General is of the opinion: (i) that the person is an extraditable person in relation to the extradition country; and (ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or (b) if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought. The s 16 notice given in relation to the appellant was one of the preconditions for a proceeding under s 19 of the Act, to which I shall refer presently. 9 On 7 July 2006 (about three weeks after the judgment of the High Court to which I have referred), the appellant commenced a proceeding in this court seeking a review, pursuant to s 39B of the Judiciary Act 1903 (Cth), of the decision to issue a warrant under s 12 of the Act and of the decision to issue a notice under s 16 of the Act. On 13 October 2006, the further hearing of that proceeding was adjourned, pending the determination by a magistrate of the appellant's eligibility for surrender pursuant to s 19 of the Act. Section 19 was, and is, important in the scheme of things under the Act because it sets out what may happen upon the giving of a notice under s 16 in relation to a person who is on remand under s 15. 10 Section 19(1) provides as follows: Where: (a) a person is on remand under section 15; (b) the Attorney-General has given a notice under subsection 16 (1) in relation to the person; (c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and (d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country. Subsection (2) sets out a series of criteria, the satisfaction of which would be the sole basis for a decision under subs (1) that a person was eligible for surrender. 11 In the present case, after proceedings in December 2006, on 12 April 2007 a magistrate determined under s 19(1) that the appellant was eligible for surrender to Croatia, and issued a warrant for the arrest of the appellant under s 19(9) of the Act, which provides: Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall: (a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22 (5); (b) inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21 (1); and (c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General. 12 On 23 April 2007, the appellant commenced a proceeding in this court seeking the review of the orders made by the magistrate under s 19, for which special provision is made under s 21 of the Act. That proceeding, which had by then been amended to rely also on s 39B of the Judiciary Act and which had, in effect, overtaken the appellant's original proceeding challenging the decisions under ss 12 and 16 of the Act (which proceeding was dismissed on 19 November 2007), was heard in August, September and October 2008. It was dismissed on 3 February 2009: Snedden v Republic of Croatia [2009] FCA 30. On 2 September 2009, the appellant's appeal from that judgment was successful: Snedden v Republic of Croatia [2009] FCAFC 111. On 30 March 2010, the appeal of Croatia from the orders of the Full Court was allowed by the High Court, for reasons which it gave on 19 May 2010: Republic of Croatia v Snedden (2010) 241 CLR 461. Their Honours restored the order of the primary Judge that the appellant's application be dismissed, and added an order that the orders made by the magistrate on 12 April 2007 be confirmed. 13 On 14 September 2010, the appellant commenced a new proceeding in this court. He claimed a declaration that he was not an "extraditable person" within the meaning of the Act, a declaration that he had been unlawfully imprisoned, and remained unlawfully imprisoned, pursuant to the extradition request by Croatia, a declaration that he was "only required for questioning … [and was not] … accused of, or charged with, commission of offences" referred to in the extradition request, an order in the nature of habeas corpus, compensation, damages and interest. According to the primary Judge, the principal relief sought by the appellant was an order in the nature of habeas corpus. The other relief sought by him was said to be ancillary. 14 By Notice of Motion dated 22 October 2010, the respondents moved for the dismissal of the appellant's proceeding pursuant to s 31A of the Federal Court Act and to O 20 r 5 of the Rules. It was that motion which led to the judgment now under appeal. To the extent presently relevant, s 31A provides as follows: (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, … a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. To the same extent, O 20 r 5, as then in force, provided as follows: (1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding: (a) the proceeding or claim is frivolous or vexatious; or (b) the proceeding or claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief. 15 As outlined by the primary Judge in his reasons of 19 November 2010, the proceedings which culminated in the judgment of the High Court on 19 May 2010 were a fundamental element in the respondents' cases under s 31A and O 20 r 5. They submitted that the appellant's cause of action by way of unlawful detention had merged into that judgment and was, therefore, res judicata. They submitted that every issue which might support the appellant's case ought to have been raised in the earlier proceedings, and the appellant was precluded from raising it in the instant proceeding by the principle for which Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 is authority. They submitted that the proceeding was an abuse of process because it was inconsistent with the earlier adjudication of the appellant's case under s 21 of the Act. They submitted that it was now too late to advance a challenge to the s 16 notice given in respect of the appellant, as the work to be done by that section had been spent once a valid order had been made under s 19 of the Act. And they also submitted that the objective question whether the appellant was an "extraditable person" was not one which the court could answer, and that the appellant's proceeding, to that extent, failed to disclose a reasonable cause of action. 16 The primary Judge upheld the respondents' motion on all the grounds referred to above. Save for the matters briefly raised on behalf of the appellant to which I shall refer presently, it was not submitted on his behalf that his Honour had been in error in relevant respects. In my opinion, and with respect to the grounds referred to in the previous paragraph, this was a very clear case for the exercise of the power with which the court is invested under both s 31A of the Federal Court Act and O 20 r 5 of the Rules of Court. Nothing put on behalf of the appellant, and nothing which the material before us otherwise discloses, gives rise to a scintilla of doubt as to the correctness of his Honour's disposition of the respondents' motion. 17 As will be apparent from the provisions of the Act to which I have referred above, the question whether the appellant was an "extraditable person" was one for the magistrate under s 12(1), and for the Minister under s 16(2). The relevance of the circumstance that the appellant may not have been "accused" of something in Croatia, and may have been merely "required for questioning", was that it might have stood in the way of a conclusion that he was an "extraditable person": see para (a)(i) of the definition of that term in s 6 of the Act, set out in para 5 above. Even the s 19 magistrate was not competent to re-examine whether the appellant was an "extraditable person": Director of Public Prosecutions (Commonwealth)and Another v Kainhofer (1995) 185 CLR 528, 539-540. The present case was a fortiori: because of the resolution of the earlier proceeding, and the confirmation by the High Court of the order made by the s 19 magistrate, that order is not open to challenge by the appellant. Necessarily, neither is the magistrate's conclusion that the appellant was "eligible for surrender"; neither, of course, was the validity of the s 16 notice given in relation to the appellant, the existence of which was a condition of the magistrate having jurisdiction under s 19. 18 With respect to so much of the appellant's case below as sought a declaration that he was not an "extraditable person" under the Act, and a declaration that he was not "accused", but "only required for questioning" (the latter of which, in the view of his Honour, was relevant only because it related to the former), the primary Judge held that these were not in any event matters for the court to determine. Rather, they were matters for the magistrate under s 12(1) of the Act and for the Minister under s 16(2) of the Act. In this regard, his Honour relied upon the judgment of the Full Court in Peniche v Vanstone (2000) 101 FCR 112, 132-133 [60]-[64]. Thus his Honour held that, to this extent, the appellant's proceeding had no reasonable prospect of success, and that his Application and Statement of Claim did not disclose any reasonable cause of action. In these conclusions, the primary Judge was undoubtedly correct, and no suggestion to the contrary appeared in the submissions made on behalf of the appellant in the present appeal. 19 Those were the only bases for the relief of habeas corpus originally sought by the appellant in the proceeding below. However, on the hearing of the respondents' motion, the appellant sought leave to file, and to rely on, a proposed Amended Application, and a proposed Amended Statement of Claim. Of the new claims set out in the proposed Amended Application, the following related to previous steps taken under ss 12, 16 and 19 of the Act: B An order for a judicial review of the Fifth Respondent's decision made 8 March 2006 to issue a notice under Section 16 of the Extradition Act (the Act). C An order for a judicial review of the Sixth Respondent's decision made 12 April 2007 to issue a warrant committing the Applicant to prison under Section 19(9) of the Act. D An order staying and/or setting aside the Section 19 committal decision and the warrant issued pursuant to Section 23 of the Act. E An order staying proceedings pursuant to the issue of the Section 16 notice. For reasons explained above, these claims could not, after the judgment of the High Court in Snedden, succeed. That was the conclusion of the primary Judge, and I agree with it. 20 A further series of claims in the proposed Amended Application related to detailed factual circumstances in Croatia, and in the former Yugoslavia. Those claims were: A A declaration that the alleged offences committed by the Applicant occurred in the Serbian Autonomous District of Krajina (SAO) and/or the Republic of Serbian Krajina (RSK) and not in territory then under the jurisdiction of the Republic of Croatia. … G A declaration the offences allegedly committed by the Applicant referred to in the Extradition Request did not occur or take place within the Republic of Croatia. H An order restraining the Third Respondent proceeding with the Extradition Request on the grounds that the offences allegedly committed by the Applicant referred to in the Extradition Request did not occur in the Republic of Croatia or a colony, territory or protectorate of that country or a territory with international relations of which the country was responsible. I A declaration that at the time the offences allegedly committed by the Applicant occurred articles 120 and 122 of the Basic Penal Code of the Republic of Croatia were not laws of or in force in that country. J A declaration that the offences referred to in the Extradition Request are not qualifying extradition offences and/or extradition offences within the meaning of the Act. K A declaration that there was no warrant issued by the Republic of Croatia for the arrest of the Applicant for an offence within the meaning of Section 19(3) of the Act. The primary Judge held that these claims, when understood in the context of the appellant's proposed Amended Statement of Claim, went only to the question whether the appellant was an "extraditable person" within the meaning of the Act. His Honour held, correctly in my respectful view, that this was not a matter upon which the court could grant the appellant relief, both because of the High Court judgment in Snedden and on the authority of the Full Court judgment in Peniche. 21 Another claim sought to be raised in the appellant's proposed Amended Application was the following: L An order that the Third Respondent supply an English translation of the Extradition Request and accompanying documentation by a qualified NAATI translator. This claim, or potential claim, was deployed by the appellant by way of a submission that consideration of the respondents' motion should not proceed until there was "an agreed English translation of the extradition request and accompanying documents". It seems that the Australian authorities had been proceeding on the basis of a translation provided by Croatia, and that the Minister under s 16 and the magistrate under s 12 had done likewise. 22 The primary Judge resolved this point by reference to s 19 of the Act. Under para (a) of subs (2), a precondition for a determination that the appellant was eligible for surrender was that the relevant "supporting documents" had been produced to the magistrate. That term is defined in subs (3) to include "a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant". The primary Judge held, in the circumstances, that any challenge to the accuracy of the translation of the Croatian warrant was an abuse of process because it could, and should, have been made in the s 21 proceeding which led ultimately to the High Court's judgment in Snedden. Here his Honour clearly had in mind the Anshun principle. In my view, the attempt by the appellant to put in issue the accuracy of the translation of the Croatian warrant was the clearest of cases for the application of that principle. But I would go further. In the light of the High Court's order confirming the order of the s 19 magistrate, the accuracy point was not merely one which should have been raised in the s 21 proceeding, it was one which merged in the judgment of the High Court. So long as the order confirming the s 19 order stood, no challenge to a finding necessarily involved in the s 19 order could be made, whether or not, consistently with Anshun, it should have been made in the s 21 proceeding. 23 The only other new claim which the appellant sought to introduce by his proposed Amended Application was the following: F An order restraining the first Respondent from making a determination under Section 22 of the Act that the Applicant be extradited to the Republic of Croatia. The primary Judge disposed of this point by holding that "no prohibition can restrain the Minister entering upon an inquiry into any of the matters or issues that he is to consider in the exercise of his discretion under s 22 of the Act". Here his Honour was adverting to s 22(2) of the Act, which imposes upon the Attorney-General an obligation in the following terms: The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences. Other provisions of s 22 specify the criteria by reference to which that determination is to be made, but it is sufficient to note that, in the present case, the confirmation of the magistrate's order under s 19(9) of the Act made the appellant an "eligible person" for the purposes of the section. Unless the s 19 order were set aside, the Attorney-General (or his delegate) came under an obligation in the terms referred to. As the primary Judge pointed out, it was no part of the function of the court to stand in the way of the performance of this duty. 24 For the reasons to which I have adverted, the primary Judge took the view that any case which might be advanced by the appellant conformably with his proposed Amended Application and Amended Statement of Claim would have no greater prospect of success, and would no more be sustained by a reasonable cause of action, than was his existing case under the Application and pleading as they then stood. In the circumstances, his Honour held that to allow any amendment would be futile, and he refused the appellant's application to amend. Subject to what follows below, I consider that his Honour was amply justified in adopting that course. 25 To date in these reasons, I have expressed various conclusions - in all cases concordant with those reached by the primary Judge - about the strength of the appellant's case below, and I have done so without reference to the appellant's grounds of appeal. I have adopted that course because of the disadvantage at which the appellant was placed by the unavailability of his chosen (pro bono) counsel to represent him on the appeal (that unavailability having arisen subsequent to the fixing of the date for the hearing of the appeal); and because of what was said to be the inability of the appellant's solicitor to engage alternative counsel. These circumstances gave rise to our judgment in Vasiljkovic v The Honourable Brendan O'Connor [2011] FCAFC 112. I wanted to ensure that, notwithstanding the limited nature of the submissions that were put before us on the appeal, there was no obvious, or even readily apparent, basis upon which the view might be taken that the primary Judge erred. For reasons given above, I am satisfied that there is no such basis. I shall turn now to the appellant's grounds of appeal, and to the submissions which were in fact made in support of them. 26 The appellant's grounds of appeal are as follows: 1. His honour should not have summarily dismissed the Appellant's Application. 2. His Honour should have held that the Appellant had good and reasonable grounds to support his application for orders in the nature of a writ of habeas corpus and that his Honour should have allowed the matter to proceed to trial instead of dismissing the Appellant's claim on the grounds the Appellant's claim was an abuse of process, not reasonably arguable and without merit. 3. His Honour erred in not allowing the Appellant to file an amended application and an amended statement of claim. 4. His Honour should have made an order in the nature of a writ of habeas corpus. 5. An order in the nature of a writ of habeas corpus would not be inconsistent with the orders of the High Court of Australia in the Republic of Croatia v. Snedden (2010 HCA 14). 6. The Appellant's cause of action was not res judicata because his action had not merged into the judgment in the Appellant's prior proceedings. 7. The Appellant was not estopped in seeking orders in the nature of a writ of habeas corpus from raising issues which were not raised but could have been raised in earlier proceedings. 8. The Appellant's claim for orders in the nature of a writ of habeas corpus were not an abuse of process. 9. His Honour failed to treat the application for an order in the nature of a writ of habeas corpus as distinct from proceedings and judgments pursuant to various judicial reviews of findings made by the Magistrate pursuant to the Extradition Act (the Act). 10. His Honour should have found that the provisional arrest warrant issued by the Magistrate under Section 12(1) of the Act is invalid. 11. His Honour should have found that the Magistrate's position to remand the Appellant in custody under Section 15 of the Act was invalid. 12. His Honour should have found that no warrant was issued by the Republic of Croatia for the arrest of the Appellant for an offence or offences within the meaning of Section 19(3) of the Act. 13. His Honour should have found that the extradition request required that the Appellant was wanted for questioning or interrogation by the Republic of Croatia. 14. His Honour should have found that the English translation of the extradition request and accompanying documents issued by the Republic of Croatia was defective and not accurate in that references to the Appellant being charged with criminal offences should have read that he had been accused of criminal offences. Further, statements that an arrest warrant was issued or was to be issued should have been translated to read "A wanted circular is to be issued to put the Appellant on the wanted circular list". Further the reference to the issue of a warrant under Article 486 of the Criminal Procedure Act (Croatia) was incorrect. 15. His Honour should have found the alleged offences said to be committed by the Appellant did not take place in territory under the jurisdiction of the Republic of Croatia. 16. His Honour should have found there was no allegation in the extradition request that any of the alleged victims were Croatian citizens or residents. 17. His Honour should have found that at the time of the offences referred to in the extradition request were allegedly committed by the Appellant Articles 120 and 122 of the Croatian Criminal Code of the Republic of Croatia were not laws of, or in force, in that country. 18. His Honour should have found that the Court had not [sic] power to strike out an application which seeks orders in the nature of a writ of habeas corpus because such an application is not a pleading or claim but is similar to a prerogative writ where the person holding a detained Appellant must state by what authorities that Appellant is held. 27 As will be apparent, these high-level grounds are an unsatisfactory way to identify errors said to have been made by the primary Judge. The grounds amount to little more than assertions that points which were decided against the appellant below should have been decided in his favour. Standing alone, they gave neither the respondents nor the court any real idea of the appellant's case. That deficiency remained until the hearing of the appeal, as the appellant did not file an outline of the submissions that were to be made on his behalf as required by cl 7.1 of Practice Note App 2 of 2 November 2010. 28 On the hearing of the appeal, the appellant's solicitor first submitted that "Anshun estoppel ought not to have any place in the criminal law". This submission, which corresponded to no ground raised in the Notice of Appeal, cannot advance the appellant's case because the proceeding before the primary Judge was not a criminal one. As the primary Judge pointed out, in Vasiljkovic v The Commonwealth Gleeson CJ sated that "[e]xtradition is not part of the Australian criminal justice system" ((2006) 227 CLR 614, 629 [33]). Both because of the paucity of submissions made on behalf of the appellant and because of the circumstances of the case, the present is not an appropriate occasion to consider how the particular kind of abuse of process recognised in Anshun might be relevant in a proceeding by way of habeas corpus where the moving party was in detention as a result of criminal proceedings brought against him of her. It is sufficient to say that the circumstance that the appellant was in detention as a result of a warrant issued under the Act is no basis for supposing that the Anshun principle, which of itself was so obviously invoked by the facts with which the primary Judge was confronted, might not apply. 29 It was next submitted on behalf of the appellant that the primary Judge was in error not to have allowed the proceeding before him to go to trial, at least to the point of obtaining an agreed translation of the documents constituting the Croatian request for extradition. It was said that his Honour ought not, in anticipation of it having been established what those documents actually said (in English), have terminated the proceeding on what was essentially "a pleading issue". I would not accept that the point raised by the respondents' motion was "a pleading issue". The appellant's ground - that there was a deficiency in the way the documents had been translated into English - had merged in the s 21 proceeding confirming the s 19 orders. The whole point of s 31A and of O 5 r 20 is that a case which would amount to an abuse of process, or which has no reasonable prospect of success, should not go to trial. There is no substance in this ground of appeal. 30 Finally, it was submitted that the appellant ought not to have been summarily cut out of making a case that, at the time of the offences referred to in the extradition request, Croatia "was not in charge of that area of the world, and that the laws that Croatia relies upon had not yet been enacted by Croatia". It was not put that the primary Judge had been in error to have perceived the relevance of these circumstances (if they were established) as being tied to the question whether the appellant was an "extraditable person". The appellant's solicitor accepted that this point might well have been, but was not, raised in the s 21 proceeding and the High Court appeal which led to the confirmation of the magistrate's order. When pressed on this aspect by the court, he really had no answer to the question why the point was not then raised. Save to make the rather unhelpful submission that it would be "fair to the appellant" for the point now to be determined, he provided no justification for disturbing the judgment under appeal. In my view, that judgment was not relevantly attended by error. 31 For the foregoing reasons, I would dismiss the appeal with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Vasiljkovic v The Honourable Brendan O'Connor

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