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Refugees can be sent to persecution under Hong Kong law

Mar 8th, 2013 | Advocacy, Media | Comment

Joyce Man writes for South China Morning Post on 8 March 2013

The principle of not sending someone to a place where they may be persecuted has never been part of Hong Kong law, the government said yesterday. Benjamin Yu SC was speaking on behalf of the Immigration Department and the secretary for security at the Court of Final Appeal, where three African men were making a final bid to change how applications for refugee status are handled in the territory. Hong Kong is not a signatory of the United Nations Convention Relating to the Status of Refugees. The government does not take applications for refugee status, but instead refers them to the United Nations High Commissioner for Refugees.

When the UNHCR finds in favour of someone claiming refugee status, the government can allow them to stay pending resettlement. But this would be on humanitarian grounds, rather than out of any obligation. “Non-refoulement,” Yu said, referring to the principle, “has never been part of the common law in Hong Kong.” Vaughan Lowe QC, also for the government, said even if the court found non-refoulement was a rule in Hong Kong, it would be up to the government to decide how to meet the obligation. He said there was “no reason” why the UNHCR should not handle refugee claims in Hong Kong. The appellants – from the Democratic Republic of Congo and the Republic of Congo – had their applications for refugee status and subsequent appeals rejected by the UNHCR.

They filed applications for judicial review but lost those, as well as appeals against those decisions. They argue the UNHCR screening process is inadequate and that its decisions are not open to judicial scrutiny. Hong Kong, they say, must make its own decision regarding their claims in an informed, fair and accountable manner. Refugee support workers are waiting anxiously for the court’s ruling. “We are definitely watching it closely,” said Cosmo Beatson, executive director of refugee support group Vision First. “The case is vitally important.” The case was heard before Mr Justices Patrick Chan Siu-oi, Roberto Ribeiro, Robert Tang Ching, Kemal Bokhary and Anthony Mason.

Article 5. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Appeal for action: Lakshan Dias

Mar 3rd, 2013 | Advocacy | Comment

Sri Lankan human rights lawyer threatened: Lakshan Dias (by Amnesty International)

We are deeply concerned about this disturbing news: “Since 22 February Sri Lankan human rights lawyer Lakshan Dias has reported being followed and under surveillance by unidentified men who have sought information about him from his wife and neighbours. Colleagues are concerned that he is in danger of enforced disappearance and physical violence.” Amnesty International warns that the life of Srilankan human rights activist Lakshan Dias is in danger. He is a prominent human rights lawyer who has been active in opposing the impeachment of the Chief Justice of Sri Lanka’s Supreme Court in January. Lakshan is a friend of Vision First and an Asia Pacific Refugee Rights Network (APRRN) Steering Committee member. He is also respected by local Srilankans having practiced and assisted many countrymen seeking refuge in Hong Kong. Last month he warned the international community that he was followed and intimidated by unknown individuals with sinister intentions. The reasons for this climate of fear are unclear, though most likely relate to his high-profile human rights work. Several other lawyers have received death threats for engaging in protests advocating independence of the judiciary. Judges have also been threatened and attacked. In solidarity we post this appeal for action. We hope this news will also reach the relevant authorities, including UNHCR and Hong Kong Immigration Department, who may too hastily reject claims on the assumption that Sri Lanka is a safe country.

UNHCR withdraws the cash allowance to Hong Kong refugees

Feb 28th, 2013 | Advocacy, Media | Comment

Betty Cheng writes for Oriental Daily on 27 February 2013

English translation here

聯國撤港難民現金津貼

現時尚有一百一十名難民滯留本港, 惟聯合國難民署駐港辦事處近日接獲總署通知,
今年七月起削減支出,取消向在港難民提供每月五百元現金津貼。

有志願團體指,由於難民不能在港工作,每月接受港府提供的租金津貼及糧食,不足以應付生活開支,若難民署再停止發放現金津貼,將令難民生活更加困苦,要求港府施以援手,向在港難民提供實報實銷租金津貼,以解燃眉之急。

7.1起實施 生活更困難 – 聯合國難民署駐港職員莊小姐向本報表示,由於全球難民問題嚴峻,位於瑞士的總署將在世界各地分署削減開支,故本港分署亦難以幸免,今年七月一日開始會取消向在港難民提供的五百元現金津貼,該署亦明白取消津貼後,難民生活會更加困難,正聯絡志願團體向難民提供協助。

一直協助在港難民的志願團體Vision First負責人Cosmo Beatson指,由於難民不能在港工作,沒有收入,雖然港府會向每名難民支付約一千二百元租金津貼,及每十日提供糧食,但因本港租金昂貴,在深水埗租住一個房間至少要一千八百元,故難民署取消五百元津貼,將令難民生活更加困難,故希望港府能伸出援手,向難民提供實報實銷的租金津貼。

Bearing Witness to Refugees’ Experience

Sep 2nd, 2012 | Advocacy, Media | Comment

http://www.newexistentialists.com/posts/08-23-12

One of the things that we existential psychologists take seriously is the existence of evil in the world. It is so painful for me when I become aware of how much evil and pain is perpetrated in the world for various reasons. The pain is such that I prefer not to think about most of the time. When I do take time to think about it, I am baffled, angry and exasperated with how much trauma and suffering is inflicted by a few upon so many, while it takes legions of heroic individuals to help just a few of these victims. It makes little sense to me. The philosophic and theological answers regarding free will provide me with limited comfort. What make some sense to me are the words of Viktor Frankl who taught us in his book Man’s Search for Meaning:

As each situation in life represents a challenge to man and presents a problem for him to solve, the question of the meaning of life may actually be reversed. Ultimately, man should not ask what the meaning of his life is, but rather he must recognize that it is he who is asked. It does not really matter what we expect from life, but rather what life expects from us. In a word, each man is questioned by life; and he can only answer to life by answering for his own life; to life, he can only respond by being responsible.

As each situation in life represents a challenge to man and presents a problem for him to solve, the question of the meaning of life may actually be reversed. Ultimately, man should not ask what the meaning of his life is, but rather he must recognize that it is he who is asked. It does not really matter what we expect from life, but rather what life expects from us. In a word, each man is questioned by life; and he can only answer to life by answering for his own life; to life, he can only respond by being responsible. A big part of what promotes my denial and avoidance is the sense of helplessness that I feel whenever I ponder the scope of the suffering that takes place. I hate this feeling of helplessness. Yet, it is the same helplessness that lawyers at the Hong Kong Refugee Advice Center face on a regular basis. The unsung heroes and heroines at the HKRAC persist every day despite struggling with their own sense of helplessness. Often, they will take on refugee cases applying for asylum even though at the outset, they know that the case has virtually no chance of success. This also makes little sense economically. They invest significant amounts of time in these cases even though they know they will fail. Why? Why not? This is because they know that what they do is significant just because. They know that the meaning of what they do is not directly tied to the success of their applications. If they were solely dependent upon successful applications, then they’d all quit with despair. Even with successful applications, the journey is in many ways has just begun. In the words of one attorney, “you can’t control the outcome but you can give your client a good day.”

In addition to protecting the refugee’s legal rights and providing high quality legal advice, the staff members help to preserve their clients’ dignity. The briefs that they write are significant beyond the fact that they document the traumatic events that took place. Think of the vicarious trauma that the staff endures from hearing details of systemic torture and abuse that happen over and over again. The briefs are significant because they are a written record of the narrative of the suffering that has been endured. They are significant because otherwise, the suffering will be unheard, undocumented, and therefore invisible. They battle against the pain of insignificance. The applications may ultimately be unsuccessful, but their clients are nevertheless tremendously grateful that despite the evil that has been perpetrated upon them, there are others in the world who care enough to listen and bear witness to their suffering.

The attorneys not only document, but they create worth. Carl Rogers taught us that empathy dissolves alienation. Carl Jung said that schizophrenics cease to be schizophrenic when they meet other persons with whom they feel understood. Through the staffs’ patient listening and the attorneys’ attentive sifting through the stories of trauma, the briefs written are Books of Life. When successfully recognized, they provide a new chance at life. Regardless of the application result, the briefs helps to recreate meaningful existence for people whose lives have been ravaged by evil. And the amazing thing is, these highly qualified staff commit to this beautiful work for pitiful wages while living in Hong Kong, one of the most expensive cities in the world. This blog is my tribute to them and my efforts to bear witness and honor the beautiful work that they do. Despite the pitifully low wages, there are deeply meaningful rewards. The staff shared one such reward with me recently when they recalled the jubilation of one of their few successful applicants. The applicant came into the office and exclaimed, “Stand Up, Now We Hug!” I imagine this being said with a heavy African accent. After years of struggle, what else can we say but “Stand Up, Now We Hug!” – Mark Yang

A former refugee camp in Hong Kong (Whitehead Camp, 2008)

The Conversation – August 26, 2012

Aug 26th, 2012 | Advocacy, Media | Comment

By Alison Gerard, Charles Sturt University and Francesco Vecchio, Monash University
http://theconversation.edu.au/australia-among-the-worlds-worst-in-dealing-with-asylum-seekers-8892

You wouldn’t know it by listening to Question Time, but Australia is not the only country experiencing asylum seekers arriving by boat. Italy and Malta find themselves on the frontline of policing external EU borders against unauthorised arrivals across the Mediterranean. Malta receives the highest number of applicants for asylum per head of population in the EU. In Asia, tiny Hong Kong has been taken as a preferred destination by thousands crossing the narrow strip of sea between the former British colony and mainland China. Unauthorised border-crossing is a global phenomenon. Its varying causes however, are rarely tackled in Australian and international debates on asylum. We note the recent Houston report is almost silent on the country conditions of asylum seekers coming to Australia by boat. Countries such as Afghanistan, Iraq and Sri Lanka were either at war until recently or their people suffer generalised, daily violence.

Interviewing refugees who arrived by boat in Malta and Hong Kong, we found that many asylum seekers are aware of the dangers their journey will present but choose to travel anyway. In the words of one Somali refugee, “We run away from our country because any day you could die in Somalia. But you do not know when you are going to die if you travel. There is more trouble in our countries.” But this reason alone does not explain why wealthier countries witness increased numbers of people risking death as the only pathway to migration and a chance of a better life. The increase in asylum seekers arriving on Malta and Hong Kong’s shores is the result of visa requirements targeted at citizens of those countries producing higher numbers of asylum seekers, such as Afghanistan, Iraq, Somalia. If refugees are enabled to seek asylum only when outside their country of origin, but no safe haven grants them documents to safely travel to their destination, the only remaining option is to embark on unseaworthy boats.

In this light, Australia’s plans to outsource refugee obligations to countries with less geo-political muscle in the region are no solution. Refugees impeded from travelling to Australia do not stay put in their country of origin. They travel to, or end up in, alternative destinations where provisions for international protection may be lacking or weakly implemented, resulting in the increased vulnerability of asylum seekers. European states utilise “safe third country” and the Dublin II Regulation to evade their refugee protection obligations, leaving countries along EU external borders to cope with the influx. Malta houses refugees in conditions criticised by numerous human rights groups as unhygienic, isolating and over-crowded. Conditions in Greece have been characterised as tantamount to torture for returning asylum seekers. In Asia, countries such as Indonesia, Thailand and China are increasingly major destinations for asylum seekers. Extensive human rights violations against illegal populations in these countries have been documented.

Internationally, Australia’s insistence on offshore processing provides disgraceful leadership. The UK has been calling for offshore processing for some time under the auspices of “safe havens”. These would enable the UK to deport asylum seekers to an external processing site to await the restoration of stability in their country of origin. These plans set a time limit of six months. Current arrangements before Parliament have as yet no time limit. This is a paltry commitment to the Refugee Convention, particularly when Australia receives 2.5% of asylum applicants compared to other industrialised countries. Offshore processing will lead to legal uncertainty for populations of people easily identifiable as vulnerable. This impact is felt physically and mentally. Our research revealed that asylum seekers generally arrive in relatively good health. Their health rapidly deteriorates once they enter detention or are left on the verge of destitution in wealthy, industrialised nations, enduring protracted delays whilst refugee processing takes place. They are denied the freedom they aimed for, and that the 145 signatories to the 1951 Refugee Convention claim to provide.

As human beings we may well understand the desire by many refugees to be reunited with family members. Unfortunately this right is in jeopardy across the globe. In Hong Kong there is no such right while the EU has introduced diluted forms of refugee protection for asylum seekers which do not include family reunion. The expert panel appear to be calling for a similar system with their recommendations to review refugee status determination in Australia. This impact can also be measured in deteriorating health, and in criminal justice prosecutions as people try to reunite with family using false documents or other means. Refugee arrivals will not stop. With these expert panel recommendations however, asylum seekers will continue to be construed as defying our rules, increasing calls for a tougher stance disguised as being humane.

Asylum seekers arrive in Malta after being rescued at sea.

 

Refugee Protection Group

Aug 2nd, 2012 | Advocacy | Comment

by invitation only – for more information ask your friends …

“First they ignore you, then they laugh at you, then they fight you – then you win
Mahatma Gandhi

Labeled without cause

Jul 22nd, 2012 | Advocacy | Comment

We often read comments describing asylum-seekers and refugees as pitiful individuals who need our help to make a decent living. Sadly this polarizes opinions about who is responsible to look after those seeking international protection or whether harsh policies are justified to safeguard prosperity. While this discussion is important, it pivots disturbingly on the distinction between ‘genuine’ political refugees and ‘abusive’ economic migrants, the latter supposedly exploiting the asylum process for personal gains. However, former UN Secretary-General Kofi Annan wisely said, “Let us remember that a bogus asylum-seeker is not equivalent to a criminal, and that an unsuccessful asylum application is not equivalent to a bogus one.”

Currently there are 5800 claimants from South Asia and Africa who have declared they would face persecution were they returned to their country. Hong Kong Government screens these applications under the Convention against Torture and has recognized one single case since 2004 when screening started. On the other hand, UNHCR is presently considering about 800 asylum cases under the Refugee Convention, with a dismally low acceptance rate. Taken at face value, such low recognition rates suggest that most asylum-seekers are not genuine claimants. It is argued that if the majority of claimants are rejected, and many are working illegally, then these people are not escaping persecution, but entered under false pretenses to make a quick buck. This certainly is the impression we get talking to people who read less informed articles and view refugees’ motivations with suspicion. Claimants are portrayed as abusers even before their cases are assessed, further muddying the waters of stereotypes and intolerance.

Such widespread inclination to disapprove encourages Hong Kong Government to stick to tough polices, such as prohibiting employment, restricting education and, in our opinion, fast-tracking decision. This leads to asylum-seekers being barely tolerated by society and remaining confined in a state of precariousness. It is true Hong Kong Government provides them with minimal aid ($1200 rent assistance, emergency health care and monthly food rations), but it is hardly sufficient to meet basic needs. Hence money is desperately needed to buy clothes, shoes, calling cards, water and tissue. Asylum-seekers often have families back home who need their husbands and brothers to help financially. Also, the costs incurred for the journey can be extortionately high and need to be refunded if borrowed. For these reasons, some are understandably forced to work. We are told, ‘my wife calls me and speaks about the children. They need money and I need to work’. Unfortunately, to seek illegal employment is associated with having dishonest intentions. A common misconception is that if claimants work illegally, they are not afraid of arrest, consequently proving they were not refugees in the first place.

To challenge this culture of suspicion, asylum seekers must prove their genuineness not only with evidence, but also with their behaviour, despite the absence of a comprehensive safety net to protect from destitution. Further, most applicants do not have the knowledge to formulate an effective refugee claim. When interviewed by authorities they might candidly confess they came to work because ultimately, as bread-winners, they are responsible for their family. We should acknowledge that behind their suffering is a complex current of political, religious, social and economic adversity that propels them overseas. There are numerous cases in which economic deprivation is either inflicted or condoned by states unwilling to prevent it, which itself constitutes torture and inhuman treatment. However, asylum seekers often fail to distinguish economic hardship from its systemic causes. This certainly affects their claim, further lowering recognition rates.

Considering both refugees (149 recognized by UNHCR) and torture victims (1 recognized by HKSAR), is it possible that a global city like Hong Kong is home to only 150? Leaving politics and humanitarianism aside, what are the mathematical odds that with thousands of people seeking protection there are so few successes? We marvel at the mathematical improbability of Hong Kong Government recognizing one case in eight years of torture screening, while Western countries average 30% in refugee protection. Do low recognition rates truly confirm asylum-seekers beat a path to our door with fake stories, evidence and scars to cheat the system? In our opinion, what is probably lacking is political will. As long as refuge policies are founded on incomplete information and a primacy to shield wealth, we slip away from the spirit of asylum into the clutches of protectionism and nationalism. There is no image sadder than that of the rich man bolted down in his treasury, blind to the suffering of those knocking on the door seeking refuge.

Emergency shelter
Our emergency shelter, HK’s only, runs at full capacity 365 days a year

UNHCR launches flagship publication on State of the World’s Refugees

May 31st, 2012 | Advocacy, Media | Comment

NEW YORK, United States, 31 May 2012

UN High Commissioner for Refugees António Guterres warned on Thursday that factors causing mass population flight are growing and over the coming decade more people on the move will become refugees or displaced within their own country. In comments marking the launch in New York of “The State of the World’s Refugees: In Search of Solidarity” (PDF edition) Guterres said displacement from conflict was becoming compounded by a combination of causes, including climate change, population growth, urbanization, food insecurity, water scarcity and resource competition. All these factors are interacting with each other, increasing instability and conflict and forcing people to move. In a world that is becoming smaller and smaller, finding solutions, he said, would need determined international political will. “The world is creating displacement faster than it is producing solutions,” said Guterres. “And this means one thing only: more people trapped in exile over many years, unable to return home, to settle locally, or to move elsewhere. Global displacement is an inherently international problem and, as such, needs international solutions – and by this I mainly mean political solutions.”

Dadaab refugee camp in Northern Kenya

The new publication details these and other changes to the environment for the displaced since 2006, when the previous edition of the book was published. It presents a decidedly gloomier outlook: larger and more complex displacement challenges, increased threats to the safety of humanitarian workers, and states needing to strengthen their cooperation. Notable among these changes is the emergence of internal displacement as a dominant challenge. Today, most of the world’s 43 million people forced to flee their homes are not refugees but people who are displaced within their own countries, commonly referred to as internally displaced people, or IDPs. Globally, some 26 million people fall into this category, compared to around 15-16 million refugees and a further 1 million asylum-seekers. For humanitarian workers, an ensuing implication is that helping the displaced is becoming more costly and dangerous. In countries such as Somalia, Afghanistan, Yemen or Iraq, getting help to internally displaced populations means working in environments where access is difficult and conflict or criminality can present deadly risk.

“The State of the World’s Refugees” looks at these problems and the state of cooperation among countries. “The space for humanitarian intervention is shrinking exactly when the need for humanitarian help is increasing. Pressures on the international protection system are clearly growing. In some industrialized countries in particular we see fortress mentalities that serve only to shift responsibility and compassion elsewhere. In a world where societies are becoming multi-cultural and multi-ethnic, it is essential to promote the values of tolerance and to fight the manifestation of xenophobia,” said Guterres. Several chapters in the book look at emerging challenges, including the growing numbers of urban refugees as well as displacement from climate change and natural disasters. The book notes that more people are displaced annually by natural disasters than by conflict. And it carries a warning about gaps in international protection when it comes to people who flee across borders to escape climate change impacts or natural disasters. They are not recognized as refugees under international law. The book describes how UNHCR and its partners have developed innovative practices in response to evolving displacement challenges.

However, it also elaborates the struggle UNHCR often faces in promoting state compliance with customary international law as it relates to the forcibly displaced, or the compliance of signatory states to their obligations under the 1951 UN Refugee Convention and its 1967 Protocol. It looks, too, at the problems of the world’s estimated 12 million stateless people – without citizenship of any country, they are often trapped in legal and human rights limbo. Eighty per cent of today’s refugees live in the developing world. Greater international solidarity is needed to address this challenge, the book concludes. This encompasses providing more resettlement opportunities for refugees in the industrialized world, focusing development cooperation projects to foster sustainable voluntary return or local integration, and supporting host communities. A new deal in burden and responsibility sharing is needed in the whole cycle of refugee protection from prevention of conflict to solutions.

 

Lost in asylum or lost in analysis?

May 31st, 2012 | Advocacy, Media | Comment

The Standard, “Lost in Asylum” by Eddie Luk, published May 18, 2012

An informed discussion about refugee issues in the news is welcome, however several points need clarification in The Standard’s article. The story, while providing interesting information on specific crimes, fails to make a clear distinction between ‘South Asian criminals’ and ‘South Asian asylum-seekers’, regrettably bunching both in one damaging misconception. The examples chosen by the reporter to support his views are at best misleading – as he labels everyone “South Asians” – and are further murking the waters of stereotypes and intolerance. The fact that some asylum-seekers are hired by criminals may be true, but what does this say about the asylum process? Could a previously honest individual turn to crime after years of abusive marginalization? What desperate conditions is she forced to endure? What support does he receive in the country of asylum? How can she meet financial obligations when barred from working legally?

The harsh reality is asylum-seekers, after selling food rations and what is salvaged from garbage, are *forced* to offer manpower in the informal economy of 3D jobs. This is the dirty, dangerous and demeaning work that citizens turn their nose on, but needs to be performed for the economy to function efficiently. On occasion these tasks are controlled by triad societies, making the connecting between the world of asylum and the world of crime, that slips into predictable vicious circle. We can’t simplistically blame the supply where there is pernicious demand, especially when such demand is structural and pre-exists the arrival of asylum-seekers. In other words, when a CAT claimant commits a felony, he relieves a domestic gangster from dirtying his hand – the culprits might have changed, but sadly the law would still have been broken. One could argue that South Asian criminals accepting lower-than-local-pay says more about the globalization of crime than lawless asylum-seekers. Similarly the city has witnessed trigger-happy Mainlanders running amok on the streets, yet we don’t equate these with the big-spenders in the malls, though both entered under the same Immigration scheme. The analogy could continue with Thai massage ladies entering on tourist visas and other common abuses of the Immigration Ordinance. To this end, this article is unconvincing in shedding light on the criminality of asylum-seekers in general and South Asian ones in particular.

Moreover, the story’s arguments about asylum abuse are laughable. The evidence does point towards most CAT claimants delaying their case with stalling tactics, like failing to show up, presenting late evidence, calling sick, changing lawyers or phones, etc. However, is this malicious behaviour or a plausible survival strategy? Let’s imagine being in their uncomfortable shoes and facing such bleak prospects. For example, if you were a Tamil Srilankan and were about to be deported to face torture our ImmD doesn’t consider ‘likely’ would you cooperate with procedures? If you were a Pakistani fleeing tribal/Taleban/tyrannical persecution, would you facilitate your return into harm’s way? We might note these individuals are acutely aware every single torture claim of 1,717 was rejected, between Jan 2010 and Apr 2012, leading to immediate deportation procedures. They know there was one success in 2500 cases, which means the odds of success are an unreachable 2500 to 1. Indeed why are we surprised claimants resort to every legal stratagem to delay the inevitable? In substance, many stall their cases, not because they are unfounded (maybe some are), but because the system is flawed and designed to invariably fail everyone. This raises the question: how can 2500 claimants all be liars? Meanwhile, it’s understandable that anyone fearing for her life delays deportation, even if at times such behaviour might be construed as abusing the system. Why should we be surprised that 5.8% of rejected claimants were prosecuted for overstaying or illegally remaining? Rather it’s surprising the percentage isn’t higher with such widespread fear of returning home. Perhaps we might inquire how CIC detention numbers are rising and how many volunteered for repatriation. Predictably, until we see changes in CAT results we won’t see asylum-seekers rushing in to complete interview processes.

Government response to VF queries

May 17th, 2012 | Advocacy | Comment

Panel on Security (Agenda) 8 May 2012
Meeting on Tuesday, 8 May 2012, at 2:30 pm
in Conference Room 1 of the Legislative Council Complex

Revised agenda as at 4 May 2012

I.Confirmation of minutes of previous meeting

(2:30 pm – 2:35 pm) LC Paper No.  CB(2)1868/11-12
(issued vide LC Paper No. CB(2)1869 /11-12 on 3 May 2012)
Minutes of meeting on 3 January 2012

II.Information paper issued since the last meeting

(2:35 pm – 2:40 pm) LC Paper No. CB(2)1804/11-12(02) (issued on 23 April 2012)
Response to the queries raised by Mr Cosmo BEATSON, Executive Director of Vision First, about the subsidy of the Government to the United Nations High Commissioner for Refugees provided by the Administration

“Hence, there is no question of the Government subsidizing the UNHCR
in Hong Kong or allowing the latter to remit funds overseas”

W H Chow for Secretary for Security

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