FEDERAL COURT OF AUSTRALIA

Yao v Minister for Immigration and Citizenship (No 1) [2013] FCA 654

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the Applicant on 1 May 2013 be dismissed.

2.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an interlocutory application filed by the applicant (‘Mr Yao’) on 1 May 2013 seeking the following orders:

1.    Order the Respondent provide a copy of sample, template and/or title and issuer of documents that “from the Chinese authorities as to his citizenship or nationality status in China” [sic].

2.    Order the Respondent provide all necessary help for the Applicant to get the applicant’s Chinese passport [sic].

2    Such application is supported by written submissions, but is not supported by an affidavit.

3    It is necessary to set out the background to the substantive proceeding before considering the interlocutory relief that is sought.

Background

4    Mr Yao claims to be a citizen of the People's Republic of China (‘China’). He was granted Australian citizenship in September 2002, which he now seeks to renounce.

5    Pursuant to s 33(1) of the Australian Citizenship Act 2007 (Cth) (‘the Citizenship Act’), a person may apply to the Minister for Immigration and Citizenship (‘the Minister’) to renounce their citizenship. The Minister may only refuse an application to renounce citizenship on specified grounds. Relevantly, s 33(7) provides that:

(7)    The Minister must not approve the person renouncing his or her Australian citizenship unless the Minister is satisfied that the person:

(a)    is a national or citizen of a foreign country immediately before the Minister's decision on the application; or

(b)    will, if the Minister approves the application, become a national or citizen of a foreign country immediately after the approval.

6    A delegate of the Minister refused Mr Yao’s application to renounce his Australian citizenship due to the absence of evidence that he would regain his Chinese citizenship if his Australian citizenship was cancelled. The Minister took into consideration the fact that article 3 of the Nationality Law of the People’s Republic of China, which became effective on 10 September 1980, states ‘the People’s Republic of China does not recognise dual nationality for any Chinese national’. Article 9 of the same law provides:

Any Chinese national who has settled abroad and has been naturalised as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality.

7    Mr Yao applied to the Administrative Appeals Tribunal (‘the AAT’) to set aside the decision of the delegate. The AAT found that there was no error in the Minister’s approach and questioned why Mr Yao had not approached the Chinese embassy to confirm that either he has retained his Chinese citizenship, or alternatively that he will acquire Chinese citizenship after he ceases to be an Australian citizen: Qing Quan Yao v Minister for Immigration and Citizenship [2013] AATA 209 (‘AAT decision’), [24]-[26].

8    On 29 April 2013, Mr Yao filed a notice of appeal in this Court against the AAT decision. The application was supported by an affidavit in which Mr Yao asserts that he has been a Chinese citizen since his birth on 8 March 1971, and that he has held Chinese citizenship from that date.

EVENTS in the Federal Court

9    When this matter first came before the Court on 29 May 2013 an interpreter appeared for Mr Yao, but Mr Yao was not initially present. Accordingly the Court proceeded to consider orders for the future conduct of the proceeding before Mr Yao arrived at approximately 9.50 am.

10    The Court asked Mr Yao questions regarding his case. Having become aware of the nature of the proceedings and taking into account that Mr Yao was not legally represented, the Court made the following orders:

1.    The proceeding be listed for directions at 9.30 am on Friday 14 June 2013.

2.    In the event that the Associate to Justice Cowdroy is notified that the proceeding has not been resolved, the applicant be provided with legal assistance by way of advice and representation pursuant to rule 4.12 of the Federal Court Rules 2011 (Cth).

3.    The hearing of the interlocutory application dated 1 May 2013 be adjourned until 9.30 am on Friday 14 June 2013.

4.    Costs reserved.

11    At the directions hearing on Friday 14 June 2013 Mr Yao did not appear at 9.30 am, but an interpreter was present. The Court waited until 9.39 am to allow Mr Yao to appear, and then at 9.42 am the applicant’s name was called outside the Court. Mr Yao failed to appear.

12    The Minister sought an order that the interlocutory application be dismissed. However, the Court declined to do so and instead made the following orders:

1.    The directions and interlocutory hearing be adjourned to 9.30 am on Thursday 20 June 2013.

2.    The proceeding be listed for hearing at 9.30 am on Thursday 20 June 2013.

3.    In the event that the applicant does not appear for the hearings referred to in orders 1 and 2 above, the whole proceeding be dismissed with the applicant to pay the costs of the respondent.

13    Later on 14 June 2013 Mr Yao communicated with the Court requesting that the hearing be transferred to 10.30 am on 20 June 2013. As this time was not suitable to the Court, the following orders were made on 17 June 2013 after further communication with the parties:

1.    The directions and interlocutory hearing listed at 9.30 am on Thursday 20 June 2013 be transferred to 10.30 am on Wednesday 19 June 2013.

2.    The hearing listed at 9.30 am on Thursday 20 June 2013 also be transferred to 10.30 am on Wednesday 19 June 2013.

3.    Order 3 made on 14 June 2013 be vacated.

4.    In the event that the applicant does not appear for the hearings referred to in orders 1 and 2 above, the whole proceeding be dismissed with the applicant to pay the costs of the respondent.

14    On 17 June 2013 Mr Yao sent an email to the NSW Registry of the Court and to my Associate, but addressed to the Chief Justice. In such email, he alleged that the listing of the interlocutory hearing and the substantive hearing on the same day inferred that the interlocutory application could not succeed. Mr Yao further alleged that as a result the Court:

may have prejudice in my case (my Interlocutory application would be rejected). Otherwise how can he so sure that case can be finished in one day? I wish you can kindly help to change Judge for case nsd721/2013 [sic].

15    The email continued:

I wish I can have a judge who can agree to let me have a copy of written reasons for the decision of interlocutory hearing so that I can response it before I attend main case [sic].

16    On 19 June 2013, only the interlocutory hearing took place. The substantive hearing was adjourned until 1 August 2013.

Allegation of bias

17    At the outset of the hearing of the interlocutory application, and in answer to questions from the Court, Mr Yao pressed his claim that I was biased and requested that I recuse myself. Upon being asked to identify the basis for his request, Mr Yao referred to his email of 17 June 2013 and to no other circumstances.

18    The general test for apprehended bias is contained within Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, where Gleeson CJ, McHugh, Gummow and Hayne JJ stated at [6]:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v R (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488.

19    At [8], their Honours set out how such test is to be applied:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

20    The Court considered that the allegation of bias was unsustainable. It was explained to Mr Yao that it was common practice for the Court to list interlocutory hearings on the same day as the substantive hearing for efficiency. The mere listing of a matter in this way does not in itself articulate a logical connection to a fear that the issues in dispute have been predetermined. In any event, the asserted apprehension of bias on this basis would otherwise be unreasonable. Accordingly, I refused Mr Yao’s request to recuse myself.

INTERLOCUTORY Relief

21    Mr Yao submits that the power of the Court to grant the relief sought in his interlocutory application lies in either s 44(7) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) or in s 33Z of the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’).

22    The provisions relied upon by Mr Yao do not invest this court to make the orders sought. It suffices to note that s 33Z of the FCA Act only applies to representative proceedings, and s 44(7) of the AAT Act empowers the Court to make findings of fact in an appeal from a decision of the AAT. In stark contrast, the orders sought by Mr Yao in effect require the Minister to provide assistance to Mr Yao in confirming his alleged Chinese citizenship.

23    In any event, the interlocutory relief sought by Mr Yao is inappropriate. This proceeding is an appeal instituted under s 44 of the AAT Act. Such an appeal may only be on a question of law: AAT Act, s 44(1). The relief sought in Mr Yao’s interlocutory application would not assist him in showing that there is any appealable legal error in the AAT decision.

24    For these reasons the interlocutory application is dismissed.

Associate:

Dated:    4 July 2013