Tag Archives: Convention Relating to the Status of Refugees

How can we hurt you? Let us count the ways…

26 Nov

Politicians from both major parties have set themselves quite a challenge to come up with a deterrent that will persuade asylum seekers that traveling to Australia by boat will result in them facing a situation worse than that they’ve fled. Potential refugees are clearly undeterred by the prospect of life threatening boat journeys: the desire to escape their circumstances is stronger than the very real threat of dying at sea.

It is a comment on the profound emotional, psychological and moral stupidity of leading politicians that they seem on the whole to be incapable of getting their heads around this core reality.

According to Amnesty International

The Australian Migration Act sets out the laws regulating migrants, asylum seekers and refugees in Australia. The Act incorporates the UN Refugee Convention and defines a refugee as anyone who:

 owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The people our politicians wish to “deter”, many of whom will be granted refugee status anyway, are fleeing circumstances of such gravity that there is no “deterrent” a self-satisfied, self-interested Westerner can impose that will make the slightest difference to their will to live, and the risks they will take to make a life for themselves and their families. In any sane world, these courageous qualities would be appreciated and the people demonstrating them encouraged and welcomed as the kind of citizens who can be expected to enrich a country.

But we are a conflicted country when it comes to the stranger. On the one hand we are signatory to the UN Refugee Convention which in its introduction clearly states:

 The Convention further stipulates that, subject to specific exceptions, refu-
gees should not be penalized for their illegal entry or stay. This recognizes
that the seeking of asylum can require refugees to breach immigration rules.
Prohibited penalties might include being charged with immigration or crim-
inal offences relating to the seeking of asylum, or being arbitrarily detained
purely on the basis of seeking asylum.
 
Finally, the Convention lays down basic minimum standards for the treat-
ment of refugees, without prejudice to States granting more favourable treat-
ment. Such rights include access to the courts, to primary education, to work,
and the provision for documentation, including a refugee travel document in
passport form.

We need go no further than the Introduction to find examples of how many of these conditions we continue to quite cheerfully breach. The latest is the Gillard government’s refusal to allow those granted refugee status who are released into the community the opportunity to work, a refusal that in itself can be described as “persecution” or as causing “serious harm.”

 In the Guide to Refugee Law in Australia Chapter Four offers the following criteria for assessing persecution, or serious harm:

SERIOUS HARM

Under s.91R(1)(b) of the Act, persecution must involve “serious harm to the person. It provides:

For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: 

(b)  the persecution involves serious harm to the person …  

Subsection (2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. It lists the following as instances of “serious harm:

 (a)  a threat to the persons life or liberty;15 

(b)  significant physical harassment of the person; 

(c)  significant physical ill-treatment of the person; 

(d)  significant economic hardship that threatens the persons capacity to subsist;16 

(e)  denial of access to basic services, where the denial threatens the person’s capacity to subsist; 

(f)  denial of capacity to earn a livelihood of any kind, where the denial threatens the persons capacity to subsist.17 

Persecution necessarily involves two elements: serious harm and a failure on the part of the state to afford adequate protection.

An asylum seeker who is granted refugee status is presumably potentially eligible to become a citizen of this country. We are creating potential citizens whose first experiences in our country have been entirely negative. This does not and cannot augur well for us in the long term.

The amount of financial support offered to refugees who arrive by boat is inadequate to feed, clothe and house them. Denying them the right to work will further dehumanise them. In its cruel and ignorant pursuit of a “deterrent,” the Gillard government has hopefully reached the end of the road in terms of punishment it can inflict for arriving by boat.

This is punishment we voluntarily undertook not to inflict in our role as signatory to the UN Refugee Convention. Our parliament has demonstrated its utter contempt for the UN Convention, while simultaneously bidding for and winning a seat on the Security Council.

There is no moral or ethical dimension to current asylum seeker policy. As many have pointed out, this is a policy and a discourse entirely bereft of values. The question is, can a democracy continue to be a democracy if its political discourse is bereft of values?

Deterrence has never worked. It never will work. If we don’t want people arriving by boat and seeking asylum, we have no alternative but to remove ourselves as signatories to the UN Refugee Convention. The invitation we extend as signatories to this Convention is precisely what asylum seekers respond to, and they have every legal and moral right to expect they will be accepted in this country no matter how they arrive. That is what we have voluntarily agreed to do: unconditionally accept asylum seekers no matter how they arrive. If this is not what we intend, there is an urgent  moral imperative to withdraw the invitation, not to find increasingly cruel methods of punishment for those who accept it.

In implementing an impotent and dehumanising policy of magical thinking called “deterrence,” our parliament has made mockery of us all.

 

 

 

 

 

 

We’ve signed the Convention, but…

21 Dec

I don’t know about anyone else but I’m beginning to feel righteously infuriated by the asylum seeker stand-off. The kind of righteous fury that would prompt one to smite the fools and political charlatans, if one only had smiting powers.

So far the best account of the current impasse I’ve read is this one by Robert Manne at The Drum this morning. Since then both Alexander Downer and Philip Ruddock have thrown in their two pence worth here in the SMH, with Ruddock claiming the Malaysia solution is still possible, while Downer advises Abbott to keep his nose out of negotiations at this stage, and let government and coalition teams handle them rather than leaders.

This latter piece of advice I heartily endorse. Abbott has not shown himself to have the slightest talent for negotiation. That unfortunate lack is exacerbated by an ingrained misogyny that makes negotiations with a woman especially problematic. Add to that the fact that this particular woman has the job he believes is his by divine right and clearly, including him at the table is going to get us precisely nowhere.

Abbott cannot be trusted to empty his head of personal grievances and focus on the much bigger issues at hand. That’s just one of the multitude of reasons why he should not be Leader of the Opposition, and especially why he should not be our next PM.

As for the Malaysia “solution.” Remind me, wasn’t it  only 800 most recent boat arrivals we were planning to send to that country?  Haven’t we just about reached that number?  So if we do pack 800 asylum seekers off to an uncertain future and accept 4000 refugees in exchange, what next?

Oh, and I forgot. We have to change the law first so we can put that “solution” into effect, thanks to Robert Manne’s enterprising nephew David, who took the government to the High Court and got the Malaysia “solution” kyboshed under our current legislation.

A small digression. There has been much brou ha ha about the use of the word “denier” in the climate change debate. Those who object claim it is an unmistakeable reference to Holocaust deniers. Yet nobody gives a hoot about the use of the word “solution” in the refugee debate, even though it immediately puts one in mind of Hitler’s genocidal “final solution.” To my mind “solution” is far more repulsively evocative than “deniers,” especially given that word’s confusing (and defusing) French meaning, that is, the thickness or otherwise of stockings.

What nobody will address is our responsibility as signatories to the UN Refugee Convention, and how that influences the decision by asylum seekers to attempt dangerous sea voyages. People only make these drastic attempts to get to us in the first place because we are known to be a country of asylum.

We make no stipulations about who can claim asylum, or the manner in which they gain entry to our country. These high falutin’ invitations to hospitality bear little resemblance to the reality, though since the last High Court decision those who arrive by boat are to be treated the same as those who arrive by plane, ending a truly despicable discriminatory practice based entirely on methods of transport.

The UN Convention clearly does not work for Australia anymore. We are turning ourselves inside out in our attempts to find ways to circumvent it, while still wishing to remain full signatories. The people suffering most as a consequence of our gyrations and manipulations are asylum seekers, who hear our invitation and accept it, only to either die on the way, or be treated abominably once they arrive.

I don’t imagine that our commitment to the UN Refugee Convention is going to be re-assessed anytime soon. So perhaps we should consider educating potential asylum seekers in our little ways. Yes, we have signed the Convention and you are absolutely entitled to believe that we are a country of asylum, and to attempt to come here requesting sanctuary. However, if you die in the attempt that is not our fault. Should you be successful and be granted refugee status, the fact that we are a country of asylum does not mean you will automatically be allowed to stay here and we reserve the right to send you to whatever country we can persuade to take you off our hands.

So do not think when you embark on your epic journeys, that you will be allowed to stay in this country in the event that you arrive. We do not like queue jumpers, and we prefer to give sanctuary to those we invite, not those who importunately demand it of us by just turning up.

No, we agree that none of this appears in the fine print of the UN Refugee Convention. Yes, we are quite likely engaging in misleading advertising. However, as there is nothing at all you can do about that, because we are powerful and you aren’t, we suggest you don’t come here in the first place.

You think we should reword our commitment to the UN Convention?  Meh, everybody who’s anybody knows that Convention means nothing.

Related articles

Dear Julia: when supping with the devil use a long spoon

6 Sep

Julia Gillard this afternoon invited Tony Abbott to a briefing tomorrow on the legal implications of the High Court’s decision last week on the Malaysia solution. Abbott has accepted.

It’s looking increasingly likely that the two will join forces in amending the Migration Act to stop any possible legal disputes preventing off-shore processing of asylum seeker claims.

Common sense and decency have long since fled this debate. It defies rationality that the major parties are willing and eager to continue spending billions on off-shore processing and mandatory detention.

Perhaps the most bizarre aspect is that last time we used Nauru as a dumping ground for asylum seekers who arrived by boat, almost every one of them was found to be a refugee, and sent to Australia where they now live. As the majority of boat arrivals are granted refugee status, we can only anticipate that this will continue to be the case. Unless of course, Ms Gillard has it in mind to indefinitely detain genuine refugees in Nauru or some other off-shore prison, until she can persuade another country to grant them sanctuary.

So exactly how will this “stop the boats?”

Just when we thought Gillard’s judgement couldn’t get any worse, it does.

In her final abandonment of the Labor platform on refugees, Gillard appears to have entered into an ego-driven game of one-up-man-ship with the High Court. Her ill-disguised pique with Chief Justice French adds personal prime ministerial face-saving to an off-shore processing policy that is already populist, right-wing and economically insane.

The mental and physical damage the Gillard government will continue to inflict upon asylum seekers and their children by subjecting them to mandatory detention and off-shore processing is of no consequence to Gillard. In spite of mounting evidence and protests from just about everyone involved in the detention system about the damage sustained by both detainees and those who work in these grim places,Gillard continues to pursue a policy that she is fully aware seriously harms many, and she does it for personal and political gain.

An alliance with Tony Abbott on asylum seeker policy is but the latest Gillard political misjudgment and it ought to be the last. As Philip Adams wrote today, resign Julia, resign.

The High Court decision gave the ALP a golden opportunity to extricate themselves from a disgraceful and shaming policy without losing too much face.

While Gillard was perfectly entitled to criticize the decision, her opinions were wrong. She’s been shooting off her mouth on the asylum seeker issue since day one, when she announced that we’d be expelling boat arrivals to East Timor without first properly negotiating her plan with that country. Things have gone downhill from there.

If there is such an animal as the national psyche, government and opposition policies on boat arrivals are doing it nothing but damage, as willful misrepresentation, weasel language, outright lies, complete lack of compassion and political and personal selfishness over-rule every other consideration, such as our responsibilities to the region in which we stand out as the wealthiest country, our voluntarily incurred responsibilities to the UN Refugee Convention, and our right to behave humanely and generously towards those in need. Julia Gillard is denying us that right. Julia Gillard is shriveling our national heart and soul. Julia Gillard is turning this country into a land of hard hearts and closed minds.

I wonder if she’ll have the sense to get anything Tony says in writing.

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The Malaysian solution, or why Gillard will never have my respect and trust

17 Jul

‘To shelter the other in one’s own land or home, to tolerate the presence of the land-less and homeless on the “ancestral soil” so jealously guarded, so meanly loved – is that a criteria of humanness? Unquestionably so.” Emmanuel Levinas.

In the Sydney Morning Herald today there’s an article revealing that in the last three months taxpayers have funded flights from the Christmas Island detention centre to the mainland totalling over $3 million. These chartered flights have transported asylum seekers from the over-crowded Christmas Island centre to other detention centres on the mainland.

Figures from Senate Estimates also reveal that for the 11 months to the end of May, health costs in detention centres exceed $95 million.

2010 Australian of the Year, psychiatrist Patrick McGorry, described Australia’s detention centres as “factories for producing mental illness and mental disorders.” In response, Prime Minister Julia Gillard said: “We believe mandatory detention is necessary for security reasons.”

And those security reasons are?

Asylum seekers who arrive by boat are security threats how?

Australia is the only country signatory to the UN Refugee Convention that detains asylum seekers until a decision is made on their application to be accepted as refugees. All other signatory countries allow community placement while the assessments are made. The only signatory country in the world that subjects asylum seekers to indefinite imprisonment in “factories producing mental illness and mental disorder” is Australia.

In Australia as in no other signatory country the asylum seeker, the ultimate foreign other, is co-opted as an imprisoned and criminalized scapegoat. This is intended to strengthen the boundaries of our nation state by uniting Australians not in recognition of our shared humanity with the stranger, but rather in a common rejection of the foreigners’ human rights and needs in the interests of maintaining a politically expedient ideology of sovereignty.

Julia Gillard has gone further than even John Howard in her proposed treatment of asylum seekers. She wants to send them “to the back of the queue” in Malaysia. No other Australian politician has proposed the trade in vulnerable human beings that Gillard is engaged in organizing.

The refugees from Malaysia we will resettle in exchange for the 800 boat arrivals Gillard plans to transport to that country have not “queued” in order to be granted visas to live here. They have applied for re settlement along with thousand of others, and they have been selected not based on a position they hold in a non existent queue, but on their suitability as citizens.

Does Australia select refugees on the basis of how long they have been in camps? No, it doesn’t.

Yet Gillard continues to misinform and mislead the Australian people on the matter of a mythical “queue” because it is politically expedient for her to do so. The fact that it is a lie is as irrelevant to her as it is to Alan Jones, and it serves both their purposes to continue to feed this lie to the public. To the PM and shock jocks alike, the stranger seeking asylum via the boat is assumed to be morally corrupt, a criminal and possibly a terrorist, by virtue only of the dire circumstances in which he or she finds themselves in their homeland. This is utter nonsense.

In the moral world of Gillard and the shock jocks, having the gumption to get yourself out of a high risk situation by entering into another high risk situation, all in the pursuit of life, liberty and safety, makes you a criminal and possibly a terrorist. The fact that you manage to get enough money together to pay for your dangerous boat journey is only further evidence that you should be hanged by the neck when you get here, metaphorically speaking.

Imprisoning boat arrivals is a dishonest, cruel, wicked and discriminatory practice. It does nothing to improve our society, and does everything to morally and ethically damage us. It does nothing to assist the thousands of refugees in camps around the world.

“He said to me: ‘You are an animal. We will deal with you like an animal.” Guard to asylum seeker detained in Villawood Detention Centre.

Julia Gillard is engaged in a process of dehumanizing both the boat arrivals and the Australian electorate. Our attitude to those seeking asylum is a measure of our humanness, just as Levinas claims. Our political leaders should care about our collective and individual capacity for humanness because no society can thrive and survive without this quality.

“We are not animals! We have eyes like you, we have hands like you! We are not criminals!” Thirteen-year-old male detainee.

The very thing the Gillard government does not want acknowledged is that the people in detention are in any way like us. If the humanity we have in common with asylum seekers is recognized, indefinite mandatory detention would become intolerable. The demonization of boat arrivals is a morally repugnant practice, and one which Gillard fully endorses. Politicians have always sought to demonize and scapegoat human groups in the pursuit of their own political interests, and she is no exception.

We drive these people mad through the use of  indefinite mandatory detention. Then, when they act out their mad despair, we punish them for it. Now Julia Gillard like Pontius Pilate, has decided to wash her hands of the fate of the boat people and send them to Malaysia, a non-signatory country where we will have no control over what happens to them. Indeed, singling out a particular group for some kind of “special” UN protection is likely to make them even more vulnerable to attack and discrimination in a country where there are tens of thousands of displaced people, all of whom are struggling for survival in an environment that is hostile to them.

What Gillard is doing makes the Howard government’s off-shore policies look reasonable. Many refugee advocates now prefer the Pacific solution to Gillard’s Malaysian plans. That Julia Gillard should have brought us to such a choice!

I should respect this woman? I should support her? I should trust her?

I should be a proud feminist because Gillard is our first female PM?

The Malaysian solution is a bloody disgrace to this country. Nothing Gillard achieves in other areas will do anything to mitigate the immorality and inhuman cruelty of her plan. Neither will anything mitigate her continued support of indefinite mandatory detention while refugee claims are being processed. Gillard continues this, despite everything we know after ten years of the practice about how it damages and destroys the human beings we incarcerate.

You watched the Australian cows – now watch what they do to human beings in Malaysia

10 Jun

http://www.liveleak.com/view?i=5ab_1172940415

WARNING: THIS VIDEO CONTAINS IMAGES OF EXTREME CRULTY TO HUMAN BEINGS AND MAY DISTURB SOME VIEWERS

SO THIS IS WHERE YOU’RE SENDING ASYLUM SEEKERS AND UNACCOMPANIED CHILDREN IS IT GILLARD?

They cane refugees there don’t they? But wait! Gillard and the U.N. can stop them! Yeah!!!

Gillard and the UN have triumphed over the domestic laws of a sovereign state!! Watch and learn, punters! Watch and learn!

Oh, the feminists must be soooo proud of our first female PM!

BTW -WHERE THE HELL IS GET UP?

Gillard continues to pretend that the UN matters

10 Jun

It should be obvious to everyone by now that  being a signatory to a United Nations convention doesn’t mean anything in real terms.

Unless the UN is about to start hauling recalcitrant signatory countries before an international court, the conventions aren’t worth the paper they’re written on.

Especially in a country that doesn’t have a bill of rights in the first place.

As proof of this, since 2002 the UNHCR has been castigating Australia about our treatment of asylum seekers. That’s ten years of being publicly reprimanded for our disregard of the Refugee Convention, and the Convention on the Rights of the Child. We breached these conventions ostensibly in the interests of protecting our totally unthreatened sovereignty. In reality it was done in the interests of self serving careerist, and immoral politicians.

Have we taken any notice? Have we been shamed? Who is there among us that really gives a stuff what the UN thinks of us?

John Howard started it by complaining that UN committees critical of his government’s stand on indigenous affairs and refugees were unfairly treating democratically elected governments. Howard didn’t acknowledge that the purpose of the UN was to look out for democratic governments that are also disregarding of human rights, as if such institutions couldn’t possibly exist:

Those who had argued before the UN that mandatory sentencing laws or native-title legislation were racially based were wrong, and it was absurd to let a foreign group decide such issues from afar. ‘ I mean, can’t these things be resolved by Australians in Australia and not us having to dance attendance on the views of committees that are a long way from Australia,’ Mr Howard said.

Things have gone down hill from there.

In a breathtaking act of hypocrisy, the Gillard government now expects us to believe that the UN has some control over Malaysia. Although the Gillard government continues to ignore the UN’s complaints about our treatment of asylum seekers, she simultaneously seeks its support to sell her Malaysian solution.

You can’t have it both ways. If you don’t give a damn about the UN’s opinions on our breaches of the conventions, you can’t then claim that their approval of the Malaysian solution carries any weight at all, let alone makes such an agreement safe and sound.

The UN conventions mean nothing. They are entirely dependent on signatory countries implementing the undertakings. Nobody really gives a stuff about a bad report from a body that has no legs and teeth. This is a post UN world. Catch up, Gillard. We see right through your spin.

Gillard’s gamble, and the Glenn Gould Prize

30 May

The Gillard government’s decision to negotiate a one-off deal with Malaysia to trade the next 800 asylum seekers to arrive in boats for 4,000 refugees currently languishing in camps in that country, may or may not lead to a decrease in boat arrivals in Australia. It’s a gamble. If it pays off the rewards are a de-fanged opposition, and the cauterization of a decade old abscess that’s poisoned our political process to its core.

If it doesn’t pay off and boats continue to arrive, will Gillard attempt another negotiation with the Malaysians who may well up the ante, say from ten to one instead of the current five to one?

Or since East Timor gave her the flick will she use more taxpayers millions to persuade PNG or the Solomons to make it all go away?

The plan is that word will get around to potential boat arrivals that they’ll be sent to Malaysia, and this will be enough to persuade them not to undertake the journey in the first place. The deal with Malaysia has not yet come into effect, and the estimated 100 asylum seekers, including children, who’ve arrived since the announcement of the arrangement in progress are being held in detention, awaiting transfer to Malaysia.

Even if asylum seekers continue to take their chances the opposition are seriously de-fanged, as Gillard goes a step further than even they contemplated in the efforts to rid us of responsibility for those who arrive by boat.

They can now seize the high moral ground with the argument that they didn’t send anybody to be caned and mistreated in a third country.

Those who arrive by plane, on the other hand, will continue to do that without fear of being despatched to a Malaysian camp where they can expect to be flogged, fed pig swill, sent to the back of the queue, and otherwise abused.

What is immediately apparent is the government’s complete inability to maintain a credible position on boat arrivals. Not so long ago, Gillard steadfastly refused any possibility of re-opening Nauru, because that country is not a signatory to the UN Refugee Convention. Well, neither is Malaysia.

The government also seems to be labouring under the illusion that Australia can somehow exert control over the treatment of asylum seekers we send to the Malaysian camps. This is what’s known as magical thinking if they really believe it, or cynical expediency if they don’t. It’s difficult to see how even the Malaysian government can protect a handful of asylum seekers among some 90,000 from being badly treated. Are they building special quarters with kinder guards?

As former Human Rights Commissioner  Sev Ozdowski points out, re-opening Nauru is preferable to dispatching boat arrivals to Malaysia. At least we control the conditions in Nauru. On the other hand we also have to pay for that privilege. Once asylum seekers are in Malaysia, our financial obligations are at an end.

We do assume financial responsibility for the well being of the potential 4,000 refugees, the majority of whom are thought to be Burmese, for as long as they need us to do that.

The estimated cost of this  trade in displaced humanity is some $300 million over the next 4 years.

A commenter at Club Troppo made this observation on the post “In Praise of Gillard’s Malaysia solution:”

As for Burmese refugees, I welcome them. I think they are Burmese minority peoples like Shan people, persecuted by the Burmese military. As far as I know, the Burmese are Buddhist worshipping, peace loving people, and won’t hate other religions, or commit terrorist bombings killing innocent people.

Of course, boat arrivals are all Muslim terrorists, aren’t they?

The other matter that has been apparent for some time, especially internationally, is Australia’s adolescent unwillingness to accept responsibility for our own problems. Those who arrive by boat are doing nothing more than responding to our open invitation, which we continue to extend as long as we are signatories to the UN Refugee Convention. We are responsible for continuing to issue that open invitation, and for hospitably dealing with those who accept it.

Instead, like irresponsible teenagers, we bitch and moan that we don’t want those guests, we only want the other guests, so somebody else has to take those guests off our hands and give us the ones we want. The nice Buddhists not the nasty Muslims, that is.

Anybody who thinks this tacky and likely racist manipulation has anything at all to do with preventing loss of life by discouraging boat arrivals is, as they say, dreamin’.

As long as we continue to issue an open invitation, we can’t simultaneously complain about mythical queues being jumped, not if we want any credibility in the grown up world.

But I don’t think Gillard is all that interested in being a grown up, or in leading our country into adult land. After all, it’s adolescents who swan around angsting over whether or not they’re being the “real” me. It’s the immature who’ll go to any lengths and pay any disproportionate price to avoid acknowledging, and then accepting full responsibility for their actions.

The reality that we won’t process those who arrive by boat but will send them to a third, non-signatory country makes our open invitation morally foul. This is the real abscess we urgently need to cauterize. This is the abscess that will keep on poisoning us long after the last asylum seeker’s been settled in a Malaysian camp. We are not true to our word. We’re making promises we don’t keep. Or as the man cautions:

Through the days of shame that are coming 
Through the nights of wild distress 
Though your promise count for nothing 
You must keep it nonetheless…

(L Cohen, Heart With No Companion)

Leonard Cohen was in April awarded the Ninth Glenn Gould Prize for enriching the human condition through the arts, so he knows what he’s on about. Gillard is notoriously uninterested the arts, and quite likely has no idea that they can have any influence on the human condition. And what’s the human condition,anyway and do boat arrivals have one?  Does enriching the human condition through the arts count as hard work?

Maybe Gillard should give Leonard a whirl. At least she doesn’t have any grounds to complain about his voice.

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