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Explainer: Australia’s obligations under the UN Refugee Convention

Prime minister Kevin Rudd has indicated that he would like to revisit Australia’s obligations under the United Nations Convention Relating to the Status of Refugees. We are yet to learn what this may mean…

Kevin Rudd reportedly plans to revisit the UN’s Refugee Convention as the numbers of asylum seekers arriving by boat continue daily. EPA/Tubagus

Prime minister Kevin Rudd has indicated that he would like to revisit Australia’s obligations under the United Nations Convention Relating to the Status of Refugees.

We are yet to learn what this may mean, but it is important to clarify some misconceptions about the convention in the lead-up to his announcement.

The convention was drafted as a response to the displacement of millions of people by World War Two and the refusal of many nations to take in Jewish refugees escaping the Holocaust. It is designed to ensure no country ever turns its back again on vulnerable groups who need to escape persecution. Australia ratified the convention in 1954.

The most important feature of the convention is that it defines a particular group of people as “refugees” and obliges countries who have signed the convention to give such individuals certain rights. A “refugee” is a person outside of their own country who fears persecution because of their race, nationality, membership of a particular social group or political opinion.

This is a difficult definition to satisfy. For example, if a person fears persecution because they are victims of generalised violence and not because of one of the listed grounds under the convention, they are not a refugee. Nor can we label people who are escaping natural disasters or poverty as “refugees”.

It is important to note that the term “asylum seeker” does not exist under the convention but is a politically expedient label given to people who are seeking recognition of their refugee status. Many asylum seekers (90% of those who have come to Australia in recent years by boat) are in fact refugees and have rights under the convention, regardless of whether or not Australia has processed their claim or recognised their refugee status.

What is interesting about the convention is that it obliges nations to provide certain rights to refugees who are in a nation’s “jurisdiction” (that is under the control or power of a country), or in a nation’s territory. The convention does not oblige a country to go out and find refugees to bring back and resettle. This means that while there may be very strong moral reasons for Australia to resettle refugees from refugee camps in places like Africa or south east Asia, Australia only owes a legal obligation to refugees who reach its territory by boat or plane.

The convention gives a range of rights to refugees according to their connection to the receiving country. For example, refugees who are simply in the “jurisdiction” of a country but not within its territory, such as refugees on the high seas whose boat may be boarded by Australian authorities, have the right not be returned to persecution.

Refugees receive greater rights as they become more attached to a nation. For example, refugees who are in the territory of a country cannot be punished because of the way they travelled. Once the status of refugees within a country becomes regularised, for example, through the grant of a visa, they gain additional rights including the right not to be expelled from the country except in cases where they are a threat to the national security or public order of the country.

The fact that many people suffering extreme hardship do not fall within the definition of a “refugee”, and the convention’s prioritisation of refugees who come under the jurisdiction or territory of a country, has led some to argue that the convention is no longer relevant. It is argued, for example, that the refugee definition is very Eurocentric because of its history; that it does not account for the reasons people are forced to move; and that it leaves out many people, such as those trapped in their country.

Some of these arguments are sound. It is true that there are many people who are in need of protection who do not satisfy the definition of “refugee”. However, politicians like Kevin Rudd are not seeking to revisit the convention in order to broaden it. What they wish to do is limit its application and withdraw from its obligations. If Australia was to attempt to water down its obligations under the convention or withdraw from it entirely, it would set an embarrassing precedent that will be extremely damaging to the international protection regime and leave many vulnerable individuals in danger of being left without protection.

Australia’s refugee “problem” is miniscule by international standards. The UN High Commissioner for Refugees reports that in 2012, 83,400 asylum seekers claimed refugee status in the United States, 64,500 claims were made in Germany and 54,900 claims were made in France. Yet none of these countries are calling for re-examination of the convention. In the same time period Australia had 15,800 applications for asylum.

If Australia, with its tiny share of the refugee “burden” was to withdraw from its obligations, what is to stop nations with more than four times the number of asylum claims such as the US from doing the same? What would then happen to refugees who are fleeing serious human rights violations?

Unfortunately, we live in a world where people continue to flee persecution because of their race, religion, nationality, membership of a particular social group or political opinion. Many of the Afghan, Iraqi, Iranian, Sri Lankan and Syrian refugees coming to Australia are proof of the continuing relevance of the convention and our need to support it. We must learn from our modern history and avoid the mistakes of the past. To withdraw from the convention would be to turn our back, once again, to vulnerable groups who are in need our protection.

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  1. Grant Mahy

    Unemployed

    Rudd going for the youth vote and the racist vote at the same time spells disaster for Labor. He just lost my vote.

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    1. David Wright

      Electrician

      In reply to Grant Mahy

      Come and vote for the right any time. Although, judging by your other posts on here, you're more for the greens anyway.

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    2. Nikola Pijovic

      PhD Candidate, Political Science at Australian National University

      In reply to Grant Mahy

      Come on guys, its not Rudd's fault he has no spine. In actual fact, he is a genius.....its about time someone re-visited and re-wrote these silly international laws and conventions.....I mean, WHO ARE REFUGEES ANYWAY????

      The way they have been sailing in leisure and style to Australia's shores, flashing their middle class status on those yachts.....the HONOURABLE Bob Carr knows what he is talking about, they're all economic migrants who could not come up with 120 points on the skilled visa test because of their lazyness to learn english, and now they abuse the asylum seeker system!

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  2. Fred Smith

    Electrical Engineer

    "Australia’s refugee “problem” is miniscule by international standards"
    "If Australia, with its tiny share of the refugee “burden”" Lets compare the numbers:
    83.4k in 314M for the US ~0.265
    15.8k in 22M for Australia ~0.718
    Or in laymans terms we take in 2.7 times what the US does per capita. A little bit less spin on the numbers would be much appreciated in future. I am all for Australia doing their share - that being a ratio of 1 (0.265 x 22M = 5.8k if we are using the US as a baseline)

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    1. Felix MacNeill

      Environmental Manager

      In reply to Fred Smith

      Fred, when we're talking the US, that'd be 'baseline' with a strong emphasis on 'base'.

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    2. Darren Fryer

      Barista

      In reply to Fred Smith

      "A little bit less spin on the numbers would be much appreciated in future"
      You mean like what you did when you decided to pick only 1 of the 3 countries mentioned in this article to make your comparison? Using your calculations:

      54.9k in 65.5M for France ~0.838
      64.5k in 81.8M for Germany ~0.789

      Both clearly more than Australia's 0.718.

      Using the US as a moral or legal baseline would be ridiculous given that country's history.

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    3. Marilyn Shepherd

      pensioner

      In reply to Fred Smith

      Resettlement is not the issue. There are 11 million so called illegal immigrants in the US that they are worried about, we are still whining about a few thousand.

      There is something decidedly small minded about Australia that is nauseating but I reckon I am glad I don't live in Western Sydney, it must be brutal wall to wall racists.

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    4. Fred Smith

      Electrical Engineer

      In reply to Darren Fryer

      Apologies Darren, I only did the US myself. But as you have so aptly pointed out, there is value in doing such a comparison. And yes, the US is definately a Base baseline.

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    5. David Thompson

      Marketing Research

      In reply to Marilyn Shepherd

      "There are 11 million so called illegal immigrants in the US that they are worried about, we are still whining about a few thousand."
      Marilyn, god bless you. You have nailed this issue, yet you don't even know it. Australians simply do not want to go down the routs America finds itself in. No "international law" will ever change that.

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  3. Seán McNally

    Market and Social Researcher at eris strategy

    "To withdraw from the convention would be to turn our back, once again, to vulnerable groups who are in need our protection".

    My understanding was that Rudd was saying he would like to revist the obligations not withdraw from the convention. These are very different things. To shape a debate you have to be part of it and not automatically assume the position of another. My impression was that Rudd was opening the discussion up beyound the current dug-in positions.

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    1. Grant Mahy

      Unemployed

      In reply to Seán McNally

      Rudd is perhaps now the biggest hypocrite Australian politics has ever seen. It was him that overturned indefinite offshore mandatory detention and here he is now saying that Australia should consider revisiting its International obligations. Talk about desperate to win votes. The fact is he'll lose the election anyway. He should have at least tried exiting politics with some dignity.

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  4. Philip Shaw

    logged in via email @tekvision.com.au

    A few points on this.

    Firstly, the writer fails to mention that transit countries which are not signatories to the Convention do not count. Malaysia and Indonesia are not signatories, so they are not under any obligation to re-settle these people. Thus they can fly into Jakarta with all their documentation on a tourist visa, then 'unfortunately' lose all their documentation before their leaky Indonesian boat is boarded by Australian Border Protection personnel. If those transit countries were…

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    1. Marilyn Shepherd

      pensioner

      In reply to Philip Shaw

      They don't lose anything, and as they cannot be protected in INdonesia and Malaysia the rest of the stuff you write is irrelevant because if people cannot be protected under the law in any transit country it is a legal right to move on.

      They don't lose real passports you know, many of them are stateless and have no way to even get a passport - Kurds, Palestinians, Kuwaiti Bedouins, Rohingya, Hazara - they are all stateless people under the Convention against statelessness, they don't have a country from which to claim a passport.

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    2. Philip Shaw

      logged in via email @tekvision.com.au

      In reply to Marilyn Shepherd

      Not correct Margaret. Just have a look at the table published in the Australian today which shows country of origin and numbers going back to 2008 when Rudd opened the floodgates. Most this last year are from Iran. They fly into Jakarta on tourist visas, and have valid passports for the visas to be stamped in.

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    3. Grant Mahy

      Unemployed

      In reply to Philip Shaw

      Actually Philip, the largest group still arriving in Australia derive from Afghanistan. Sorry Philip!

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    4. David Thompson

      Marketing Research

      In reply to Marilyn Shepherd

      Marilyn, why 'cannot they be protected in INdonesia and Malaysia'?

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  5. Mark Pollock

    Analyst

    "Prime minister Kevin Rudd has indicated that he would like to revisit Australia’s obligations under the United Nations Convention Relating to the Status of Refugees.

    We are yet to learn what this may mean..."

    It's Kevin Rudd. It is unlikely that it means anything at all. Kevin will keep talking, keep grabbing the headlines, keep saying anything that gets him a little attention. He never actually does anything.

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  6. Gary Murphy

    Independent Thinker

    Are we obliged to resettle these people? Allow them into the community and give them work entitlements?

    Seems to me the most humane way to reduce the flow to those who are truly desperate is to put them in camps and let all potential arrivals know that that is where they will stay until they can go home.

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    1. Marilyn Shepherd

      pensioner

      In reply to Gary Murphy

      Did you read the article at all? That would be illegal. Why is it that people think endless persecution and destruction of their human rights is ""humane"".

      Would you like to be in an endless prison for no reason?

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    2. David Thompson

      Marketing Research

      In reply to Marilyn Shepherd

      "Did you read the article at all? That would be illegal."
      Marilyn, putting aside your inability to distinguish between 'law' and diplomatic niceties, Rudd is precisely signalling CHANGING the law.

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    3. Grant Mahy

      Unemployed

      In reply to David Thompson

      Ah Rudd is just blowing hot air which he will do until he announces his election defeat and ultimately his end to political life.

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    4. Gary Murphy

      Independent Thinker

      In reply to Marilyn Shepherd

      I did read the article - all it says is that we are obliged to not send them back to the country where they are being persecuted.

      Of course indefinite detention is not a nice prospect. But still preferable to what you continually tell us they are fleeing from. Much more humane than simply closing the borders and preventing any of them from arriving.

      I don't delight in suggesting it but the numbers are rapidly escalating and are becoming unsustainable.

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  7. David Thompson

    Marketing Research

    I opened this article expecting an objective "explanation". But after a couple of paragraphs it turns out to be yet another piece of advocacy for vested interests. It reads like a PR release.

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    1. Grant Mahy

      Unemployed

      In reply to David Thompson

      At least you're consistent David. If you don't like it here you should read the mainstream media which, by the large, is a PR release for your vested interests

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  8. Leigh Burrell

    Trophy hunter

    The refugee convention is nothing but a blunt instrument for loony-left bleeding heart lawyers (eg David Manne) to dictate their twisted, perverse "morality" to the silent majority while fleecing us of billions. Tear the bloody thing up and throw it overboard!

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    1. Marilyn Shepherd

      pensioner

      In reply to Leigh Burrell

      Funny that, it was co-written by that bleeding heart old leftie Robert Menzies.

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    2. Grant Mahy

      Unemployed

      In reply to Leigh Burrell

      Yes David, let's rely instead on the decency of Australians to treat all humans as equal.

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    3. Leigh Burrell

      Trophy hunter

      In reply to Marilyn Shepherd

      Circa 60 years ago in the aftermath of World War II. He believed Australians may one day need to call upon the protection of other signatory nations. I doubt he envisioned turning this country into a trash can for the inbred, degenerate welfare bludgers of the Middle East.

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    4. Grant Mahy

      Unemployed

      In reply to Leigh Burrell

      "I doubt he envisioned turning this country into a trash can for the inbred, degenerate welfare bludgers of the Middle East."

      There we go Leigh - at least you're now showing your true colours. That is, you've gone from denying you're a racist to making overtly racist comments. Good to see you're finally being honest.

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    5. Leigh Burrell

      Trophy hunter

      In reply to Grant Mahy

      That's hardly racist and it's supported by DIAC figures.

      -Most illegals are from the Middle East.
      -The Middle East, like all regions, contains a cohort of inbred degenerates. In their case it's generally accepted that 30-50% of people are the product of consanguineous reproduction.
      -Over 90% of Middle Eastern illegals are still dependent on welfare 5 years after arrival.

      http://www.immi.gov.au/media/publications/research/_pdf/settlement-outcomes-new-arrivals.pdf

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    6. Grant Mahy

      Unemployed

      In reply to Leigh Burrell

      Yes Lee, calling a group of people "inbred degenerates" isn't racist:-) Why is it exactly that you work so hard at denying you are a racist? Is it because you actually believe this or you're just scared of being outted as an absolute racist (which you are)? Honestly, I'm intrigued.

      Oh and "illegals" - no such thing. An asylum seeker is never illegal. This is just racist propaganda.

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    7. Leigh Burrell

      Trophy hunter

      In reply to Grant Mahy

      "calling a group of people "inbred degenerates""

      That's a misstatement of my comment. I said the Middle East, like all regions, contains inbred degenerates. Are you arguing that it does not? The facts are against you.

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    8. Marilyn Shepherd

      pensioner

      In reply to Leigh Burrell

      I don't suppose the aborigines spent 50,000 or so years in this country to have it turn into a trash can for white criminals either.

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    9. Marilyn Shepherd

      pensioner

      In reply to Leigh Burrell

      Resettlement has nothing to do with anything, you don't read articles do you Leigh, you just prattle out racist nonsense.

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    10. Leigh Burrell

      Trophy hunter

      In reply to Marilyn Shepherd

      I didn't mention resettlement. You don't read comments do you Marilyn? You just prattle out loony bleeding-heart nonsense.

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    11. Grant Mahy

      Unemployed

      In reply to Leigh Burrell

      That's a direct quote of your statement. Based on your logic then Australians are a pack of inbred degenerate convicts. How does that sound?

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    12. Leigh Burrell

      Trophy hunter

      In reply to Grant Mahy

      You quoted two words. Presumably any more would have been inconsistent with your accusation. Some figures on inbreeding and criminality in Australia in support of your characterisation would be nice.

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    13. Grant Mahy

      Unemployed

      In reply to Leigh Burrell

      "You quoted two words. Presumably any more would have been inconsistent with your accusation." hahahahaha yup - Leigh you're now trying to cover your tracks. Just admit it. You're a racist xenophobe. At least try having some integrity about it.

      " Some figures on inbreeding and criminality in Australia"

      Well let's see. A bunch of convicts were sent from England to Australia. Hence criminals. There were limited numbers sent - hence inbreeding. This stuff isn't rocket science Leigh.

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    14. Leigh Burrell

      Trophy hunter

      In reply to Grant Mahy

      That's a curious hypothesis, but I'm not sure it's borne out by the historical record:

      "When the last shipment of convicts disembarked in Western Australia in 1868, the total number of transported convicts stood at around 162,000 men and women. They were transported here on 806 ships.

      The transportation of convicts to Australia ended at a time when the colonies' population stood at around one million, compared to 30,000 in 1821."

      http://australia.gov.au/about-australia/australian-story/convicts-and-the-british-colonies

      I'd hoped you would flesh out your views on inbreeding and criminality in contemporary Australia. You said that we *are* a bunch of inbred degenerate convicts, not that *were* a bunch of inbred degenerate convicts.

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    15. Grant Mahy

      Unemployed

      In reply to Leigh Burrell

      Yes David its a very racist comment:-) Just like you calling asylum seekers inbred degenerates is a very racist comment.

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    16. Leigh Burrell

      Trophy hunter

      In reply to Grant Mahy

      Calling asylum seekers inbred degenerates wouldn't be racist. Asylum seekers aren't a race.

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    17. In reply to Grant Mahy

      Comment removed by moderator.

    18. Grant Mahy

      Unemployed

      In reply to Leigh Burrell

      The exact definition of racism is controversial both because there is little scholarly agreement about the meaning of the concept "race", and because there is also little agreement about what does and doesn't constitute discrimination. Critics argue that the term is applied differentially, with a focus on such prejudices by whites, and defining mere observations of racial differences as racism.[4] Some definitions would have it that any assumption that a person's behavior would be influenced by their racial categorization is racist, regardless of whether the action is intentionally harmful or pejorative. Other definitions only include consciously malignant forms of discrimination.

      I may be a clown but you are a racist. Stop looking for loopholes.

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    19. David Thompson

      Marketing Research

      In reply to Grant Mahy

      Grant, you have GOT to stop plagiarising. What sort of 'degree' are you enrolled in that condones this level of plagiarism you are so reliant on?

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    20. Grant Mahy

      Unemployed

      In reply to Grant Mahy

      Here's some more (oh for David's sake cut and pastes)

      "An excuse given by one 'race' of people to abuse another person's rights. Usually created by blind ignorance."


      A term that used to mean prejudice towards one or more races.

      "In modern use, this word is used by people to explain the behaviour of people of other races, whether race is called into the issue or not."

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    21. Leigh Burrell

      Trophy hunter

      In reply to Grant Mahy

      "there is little scholarly agreement about the meaning of the concept "race""

      So it's "guilty until proven innocent", is it? If that's the case a court would be the last place I'd be worried about being deemed a racist.

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  9. robert roeder
    robert roeder is a Friend of The Conversation.

    retired

    " The convention was drafted as a response of millions of people by WW2 and the refusal of many nations to take in Jewish refugees escaping the Holocaust"
    So what did they do, packed them of to a country in the middle east and told them this is now yours, that did not work out too well as this action has been the cause of much of the world turmoil for the last sixty odd years, no end in sight. Under the stated criteria all Palestinians could cross the border then fly in and claim asylum or maybe those who suffered under Pol Pot apartheid SA Pinochet in Chile, Sure like the author stated "it is a difficult definition to satisfy"
    Global warming is upon us, politicians procrastinate. When aquifers run dry and soils become non productive the trickle will turn to a torrent the UN puts the number at 200 million some say 1 billion. This process has already started.

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    1. David Thompson

      Marketing Research

      In reply to robert roeder

      Robert, actually the Refugee Convention had nothing to do with the Jews. By 1951, they had moved to Israel, whacked the invading Arabs, and established their own nation state. The Jews are too smart to wait around for the useless UN to live their lives for them.

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  10. Sean Lamb

    Science Denier

    " Many of the Afghan, Iraqi, Iranian, Sri Lankan and Syrian refugees coming to Australia are proof of the continuing relevance of the convention and our need to support it."
    Are we getting many Syrian refugees coming by boat? I would have thought very few of them could raise the cash.

    It would be great if we could resettle more of Syrians - unfortunately our humanitarian intake is being taken up by large numbers of middle class Iranians.

    I don't have anything against Iranians - they make good citizens. I just don't think their claims for humanitarian-based asylum stack up very strongly against Syrians.

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  11. James Jenkin

    EFL Teacher Trainer

    Under the convention, can the 'receiving country' refer to a third country - for example, when refugees flee Middle Eastern countries to Indonesia and Malaysia, and then seek refuge in Australia?

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