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Federal Court of Australia - Full Court Decisions |
Last Updated: 17 September 2007
FEDERAL COURT OF AUSTRALIA
Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151
MIGRATION – letter notifying
appellant of visa cancellation sent to "address for correspondence" –
appellant’s application
for review was lodged out of time – meaning
in reg 2.55(3)(c) Migration Regulations 1994 (Cth) of "post box address"
– whether failed delivery of email notification created second timetable
for review application
Migration Act 1958 (Cth) ss 127,
338(3), 347(1)(c), 494A, 494B, 494D
Acts Interpretation Act 1901 (Cth)
s 13(3)
Legislative Instruments Act 2003 (Cth) s 13
Australian
Postal Corporation Act 1989 (Cth)
Migration Regulations 1994
(Cth) regs 2.54, 2.55(3)(c), s.55(6), (7), (8),
4.10(1)(b)
H v Minister for Immigration and Multicultural Affairs [2002] FCA 126;
(2002) 118 FCR 153 cited
CIC Insurance Ltd v Bankstown Football Club
Ltd [1997] HCA 2; (1997) 187 CLR 384 cited
SZJIP v Minister for Immigration and
Multicultural Affairs [2007] FCA 694 cited
SZITK v Minister for
Immigration and Multicultural Affairs [2007] FCA 164 cited
SZHUT v
Minister for Immigration and Multicultural Affairs [2006] FCA 1022
cited
Murphy v Minister for Immigration and Multicultural and Indigenous
Affairs [2004] FCA 657; (2004) 135 FCR 550 cited
Vumentala v Minister for Immigration
and Multicultural and Indigenous Affairs [2004] FCA 744
distinguished
Kirk v Minister for Immigration and Multicultural Affairs
(1998) 87 FCR 99
distinguished
ZHE AN ZHANG v
MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW
TRIBUNAL
No QUD 136 of
2007
FINN, KENNY AND GREENWOOD JJ
17
SEPTEMBER 2007
BRISBANE
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.2. The appellant pay the first respondent’s costs of the appeal.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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ZHE AN ZHANG
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
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JUDGES:
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FINN, KENNY AND GREENWOOD JJ
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DATE:
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17 SEPTEMBER 2007
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PLACE:
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BRISBANE
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REASONS FOR JUDGMENT
1 The principal issue argued in this appeal is whether the description "post box address" in reg 2.55(3)(c) of the Migration Regulations 1994 (Cth) means, in context, "post office box address" or "postal address for service (or correspondence)".
BACKGROUND
2 The background to the appeal can be stated shortly. The appellant held a Student (Temporary) (Class TU) Subclass 571 Schools Sector visa. A delegate of the respondent Minister decided on 2 March 2006 to cancel that visa for reasons that are not presently relevant. A letter of the same date advising the appellant of the decision and enclosing a copy of it was sent to him at 6 Kitching Street, Chapel Hill. That address was not the applicant’s residential address. The Department had been notified of this fact on 8 December 2005 when the appellant provided it with a filled out "Change of address" form. In that form the appellant provided his new residential address. He also gave the above Chapel Hill address under the heading "Address for correspondence".
3 On a date which is uncertain but which was probably 2 March 2006, the Department attempted to send the applicant by email a copy of the letter and of the decision. Because the email address was incorrectly typed the email delivery failed. The Department was aware of this.
4 On 5 April 2006 the appellant completed an application for review by the Migration Review Tribunal. In that document he noted his new residential address but he left blank the box where provision was made for an email address. He purported to pay the application fee as required by s 347(1)(c) of the Migration Act 1958 (Cth) by credit card authorisation. The credit card details provided were those of his migration agent. Apparently by error, those details indicated that the card had expired. This was remedied on 11 April. In this appeal there is a subordinate issue concerning the significance of the "late" payment for s 347(1)(c) purposes.
5 Also on 5 April 2006, the appellant’s migration agent sent an email to the delegate indicating that an error occurred in the email "transmission of the notification of cancellation of Mr Zhang’s visa". The correct email address was provided and the delegate was requested to send the notice to the correct email address and to the migration agent. On 7 April the delegate sent the cancellation letter and the decision record as requested.
6 The Tribunal, having formed the preliminary view that it did not have jurisdiction to entertain the 5 April 2006 application, invited submissions from the appellant. These were provided.
7 In its decision on that matter the Tribunal found that (i) the letter and decision record were correctly notified to the appellant in accordance with reg 2.55(3)(c) on 2 March 2006; (ii) the failed email was merely an attempt to provide a copy of the decision notification correctly sent by post; (iii) the appellant did not apply for a review within seven working days of his deemed receipt of the letter and decision record as prescribed by reg 4.10(1)(b) of the Migration Regulations; and (iv) there being no power to extend time, it had no jurisdiction to review the delegate’s decision.
8 In judicial review proceedings, the Federal Magistrate concluded that the Minister had complied with reg 2.55(3)(c) and dismissed the application. His Honour also concluded, although it was unnecessary for him to do so, that because of the error made in providing the credit card details, the application for review by the Tribunal was not properly made for the purposes of s 347(1)(c) of the Act until 11 April 2006 when the error was rectified.
THE STATUTORY SETTING
9 To understand the evolving argument of the appellant’s counsel, it is necessary to refer to some number of provisions of the Migration Act and of the Migration Regulations. It is convenient to deal with these under three distinct subject matter headings.
(i) Notification of a decision to cancel a visa
10 Section 127(1) of the Act provides that:
"(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way."
11 Regulation 2.45 for its part states that for the purposes of s 127, "the way of notifying the visa holder of a decision is in writing."
12 In combination the above two provisions require that the Minister give a "document" to the visa holder. It should be noted in passing that reg 2.54 provides that for the purposes of reg 2.55 (below) a "document" includes (a) a letter and (b) an invitation, notice, notification, statement or summons, if it is in writing." As will be seen below, the Act has general provisions (s 494A and s 494B) governing the giving of documents by the Minister. Nonetheless, in a note to reg 2.45 it is said (inter alia) that "Regulation 2.55 applies to the giving of a document relating to:
...
• the cancellation of a visa under the Act ...".
The note is not a part of the Act: see Acts Interpretation Act 1901 (Cth), s 13(3). But it plainly acknowledges what is apparent on the face of reg 2.55 in any event. That regulation provides, insofar as presently relevant, that:
"(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
...
(3) For a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person’s last residential or business address known to the Minister; and(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;(d) by transmitting the document by;
(i) fax; or
(ii) e-mail; or
(iii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister."
(Emphasis added.)
13 As earlier noted, the notice of cancellation and decision record in the present matter were not sent to the appellant’s last known residential or business address – hence the question as to whether it was sent to his "post box address".
(ii) The general provisions relating to the giving of documents
14 It is convenient to deal with these sections out of order. Section 494B provides (in part):
"Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Transmission by fax, e-mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e-mail; or
(c) other electronic means;
to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents."(Emphasis added.)
15 It is to be noted that this section does not use the formula "post box address" in contradistinction to "residential or business address". It is also obvious from the options provided to the Minister in bringing a document to the attention of the intended recipient, that the policy of the section is to allow the Minister to avail of all of the obvious means provided by that person to the Minister that would facilitate that person’s receipt of a documentary communication. That policy becomes the more apparent when one has regard to the provisions of s 494D which provides that if a person gives the Minister the name and address of another person whom he or she has authorised to receive documents in connection with matters arising under the Migration legislation, the Minister must give the authorised recipient any document that the Minister would otherwise have given the person giving the authorisation.
16 For its part s 494A provides, insofar as presently relevant, that:
"If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; ...
The Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section)."
17 The possible relevance of this section in the appeal was only raised in the appellant’s oral submission in reply. As will later be noted, it appears subsequently to have been resiled from.
(iii) The receipt of documents so given
18 Regulation 2.55(6), (7) and (8) prescribe when a person is taken to have received a document given in accordance with one or other of the various means provided. It is sufficient to refer only to subparas (7) and (8) which provide:
"(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or(b) in any other case – 21 days after the date of the document.
(8) If the Minister gives a document to a person by transmitting it by fax, e-mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted."
19 These deemed times of receipt mirror precisely the times specified in s 494C of the Act for the times of deemed receipt of a document given by the Minister under s 494B(4) and (5).
(iv) The guillotine time limit for lodging applications with the Tribunal
20 Regulation 4.10(1) provides:
"(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:
...
(b) if the MRT-reviewable decision is mentioned in subsection 338 (3) or (3A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received ..."
21 Suffice it to say for present purposes that decision in question in this matter was one mentioned in s 338(3), hence the 7 working days time limit.
THE APPEAL
22 There are three substantive issues raised in the appeal. The first is whether the appellant’s notification of the delegate’s decision was under, and in accordance with, the provisions of reg 2.55? Secondly, does reg 2.55 matter, given the provisions of s 494A and s 494B? Thirdly, because of the error in the credit card details, was the review application not made until 11 April 2006? There is also a subsidiary natural justice question to which we will refer briefly.
(i) Reg 2.55(3)(c)
23 The appellant’s case on this regulation appears to fall into two parts. The first, and ambitious, claim is that the delegate chose two methods of notification, the one by e-mail, the other by pre-paid post. The e-mail method was only completed, it is said, on 7 April 2006 when, at the migration agent’s request, the delegate provided by e-mail the cancellation letter and decision. It is then said that when two methods of notification are adopted having inconsistent days on which receipt is taken to have occurred and hence from when time ran for making a review application, the recipient was entitled to select the day most favourable to him or her. The day of receipt of the e-mail was 7 April 2006, hence the appellant’s application of 5 April was clearly within time.
24 Reliance in this is placed on observations in the Full Court of this Court in H v Minister for Immigration and Multicultural Affairs [2002] FCA 126; (2002) 118 FCR 153. In that case notification of a delegate’s refusal of an application for a protection visa was given both to the applicant’s migration agent (who was authorised to receive documents) and to the appellant by the use of methods permitted under the relevant regulations. The two methods so employed gave rise to different days on which the applicant was taken to have received the notification. The applicant was out of time in making an application for review by the Tribunal if one but not the other of those days was the operative date from which the seven working days for making the application began to run. In determining that the Tribunal fell into error in holding that the review application was out of time, the Court said (at [9]):
"When the case came on for hearing before the Tribunal, it decided that it could not determine the application, taking the view that it had been commenced out of time. The Tribunal acted on the assumption that the only relevant dates were, first, the day on which the appellant was personally handed notification of the delegate’s decision (26 or 27 October) and, second, the date on which the application for review was lodged (8 November). If these were the relevant dates, the Tribunal correctly declined jurisdiction. But the Tribunal fell into error because it paid no regard to the notification sent to the migration agent. On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister’s obligation under s 66. If that be correct, any further ‘notifications’ (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence. The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the appellant could file a notice of review. In that event the appellant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice."
25 It is unnecessary to express any view in this appeal on the correctness or otherwise of the second of the two bases mentioned in H and in particular whether there can be two operative and effective notifications made. In the circumstances of this matter two methods of notification were not utilised giving rise to "inconsistent timetables". Even if it was the case that the failed attempt to e-mail the appellant on 2 March 2006 was intended to be a notification under reg 2.55, that form of notification was knowingly abandoned and the pre-paid post method alone was relied upon. The course taken by the migration agent over a month later to obtain an e-mail from the delegate cannot meaningfully be described as involving continuation of the process of notification by e-mail begun on 2 March 2006. There was by then no such process to continue. Notification had long since been effected. The appellant had attempted to act on it but was too late. At best all that can be said of the e-mail sent to the migration agent and the appellant was that, to use its own words, it provided them, by way of an attachment, with "the cancellation letter and decision record as requested." It was not purporting to be a reg 2.55 notification. Unlike H’s case, the present was not one in which two methods of notification were utilised.
26 The alternative attack on the notification given is that reg 2.55(3)(c) was not complied with as the letter was not despatched to the appellant’s last known residential, business or "post box address". It is conceded that it was not sent to the first two of these. The appellant’s submission is that by implication the term means "post office box", a description which is used elsewhere in the regulations. The Court was taken to dictionary meanings of "post box" and also was asked to ponder whether "post box" and "postbox" had different meanings. We have not derived any particular help from dictionaries in resolving this matter.
27 It is well accepted that the modern approach to statutory interpretation is both purposive and contextual: Acts Interpretation Act 1901 (Cth), s 15AA; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408. It is a matter of no little regret that, with s 494B of the Migration Act prescribing an easily understood and intelligible regime for the giving of documents to a person, those who drafted reg 2.55 did not adhere to that template but, rather, resorted to their own idiosyncratic language – no more so than in the use of "post box address". The reason for regret is the greater because it has occasioned an unnecessary dispute over terminology which properly construed in context means no more than "postal address for service" or "postal address for correspondence". The terms in the present context appear to be interchangeable, as is reflected both in judicial decision on the "giving" or "service" of documents and in departmental forms when considered in the context of the Act and Regulations: see e.g. SZJIP v Minister for Immigration and Multicultural Affairs [2007] FCA 694 at [6] and [19]; SZITK v Minister for Immigration and Multicultural Affairs [2007] FCA 164 at [3] and [7]; SZHUT v Minister for Immigration and Multicultural Affairs [2006] FCA 1022 at [3] and [7]; Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 at [5]- [10], [27] and [68]-[72].
28 A textual comparison of reg 2.55(3) and s 494B(2)-(5) reflects, save in two respects, a virtual identity in the provisions of the Act and the regulation notwithstanding formatting differences. The first of the two obvious differences is that the Act uses the formula of last address etc "provided to the Minister by the recipient for the purposes of receiving documents" while the regulation used that of "last residential address [etc] known to the Minister". The second difference is that while the Act uses "last address for service", the regulation uses last post box address. The additional comment that should be made about both s 494B and reg 2.55 is that both within their respective provinces are intended to be exhaustively proscriptive of the methods of "giving" available to the Minister.
29 While a possible interpretation of "post office box" is that suggested by the appellant, that interpretation does not, in our view, further the obvious purpose of the "service scheme" of the Act, nor does it reflect how reg 2.55 should be construed in the context of the Act as a whole. As earlier indicated, the manifest purpose of s 494B is to optimise the known choices available to the Minister to communicate documents to the person intended to be notified of their content. There is no reason to consider that reg 2.55 has some more restrictive purpose such that the Minister could not avail of an address for correspondence (or service) unless that address happened to be a post office box address. This would be a consequence of accepting the appellant’s submission.
30 The terms "post office box" appear to signify no more than a postal address known to the Minister to which communications intended for the person to be notified, can be made. Consistent with furthering the purpose of the service scheme of the s 494B and of reg 2.55, the reasonable and appropriate construction of them is that they are simply a loose vernacular version of a type of postal address, not being a residential or a business one, to which it is known to be appropriate to correspond with the intended recipient, i.e. it is an address for correspondence such as the appellant supplied to the Minister and which was used by the Minister.
31 In the circumstances of this matter the service effected on the appellant complied with the requirements of reg 2.55(3)(c) and, coincidentally, conformed to that of s 494B(4)(c)(i).
(ii) Does reg 2.55 matter?
32 In his reply on the appeal counsel for the appellant raised quite briefly an argument not put to the Federal Magistrate. It was not raised as a ground of appeal. It was not the subject of written submissions.
33 Put shortly, it appeared to be premised upon the proposition that, if the Minister is required or permitted by the Act or the regulations to give a document to a person then, unless the Act or the regulations prescribe that the document must be given by one of the methods specified in s 494B, the Minister may give the document to the person by any method he or she considers appropriate but which may be one of the methods in s 494B. So much, it is said, is provided by s 494A.
34 In the present matter it is said without elaboration that s 494A "overrides the regulation"; the Minister chose, as an appropriate method of notification, to send the document to an address for correspondence; there is no deemed date of receipt for a document so sent; the appellant’s evidence was that he did not actually receive the letter until 28 March 2006; the time for lodging his application then began to run; the application lodged on 5 April was within time.
35 This contention is a futile one. Let it be assumed for present purposes (i) there was no power to make reg 2.55 (s 504(1)(e) of the Act indicates to the contrary); (ii) reg 2.55 was inconsistent with the Act and could not be read and construed subject to the Act (cf Legislative Instruments Act 2003 (Cth), s 13 and, as we have indicated, reg 2.55’s obvious provenance in s 494B); or (iii) s 127 of the Act has no bearing upon the manner of exercise of the regulation making power. Nonetheless the Minister has chosen, as s 494A envisages, one of the methods provided in s 494B. Section 494C provides that it applies if the Minister "gives a document to a person by one of the methods specified in s 494B (including in a case covered by section 494A)": emphasis added.
36 As we have already indicated, the method chosen in this matter conformed to that of s 494B hence it attracted under s 494C(4) the same deemed date of receipt as under reg 2.55(7) i.e. "7 working days ... after the date of the document".
37 In short the argument goes nowhere. It makes no difference on the facts of this matter whether the service was under s 494A, s 494B or reg 2.55. In supplementary submissions received after the above had been written, counsel from the appellant indicated that no reliance was now being placed on s 494B and s 494C to found any argument about time of service. This is unsurprising.
38 There being no conceivable basis for challenging the service, the appeal must be dismissed.
(iii) The erroneous credit card details
39 The first of the two further challenges made to the Federal Magistrate’s decision related to his Honour’s finding that because of the error in the details of the credit card provided with the application for review on 5 April 2007 the application did not on that date comply with s 347(1)(c) as it was not then "accompanied by the prescribed fee". It only became compliant when the details were corrected on 11 April.
40 Given that this appeal must be dismissed we do not consider it necessary to determine this particular matter. It was only lightly dealt with in the appellant’s submission and the evidence concerning it is slight. In saying this we do not intend in any way to cast any doubt on the decisions in Vumentala v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 744 and Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 but neither do we suggest that they necessarily are on all fours with the present matter given its distinctive circumstances and the language of s 347(1)(c).
(iv) An alleged denial of procedural fairness
41 The other matter raised was an alleged denial of procedural fairness by the Federal Magistrate. We do not accept that the conduct complained of involved such a denial. The conduct complained of was that after the hearing the Federal Magistrate in researching provisions of the Australian Postal Corporation Act 1989 (Cth), made reference to material on Australia Post’s website and disclosed the results in his reasons. In any event, we consider that, even if there had been such a denial, it would not justify remission of the matter. To so do would be futile.
CONCLUSION
42 We will order that the appeal be dismissed and that the appellant pay the first respondent’s costs of the appeal.
Associate:
Dated: 17
September 2007
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Solicitor for the Appellant:
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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