FEDERAL COURT OF AUSTRALIA

Yao v Minister for Immigration and Citizenship (No 2) [2013] FCA 873

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    The applicant, who claims to be a citizen of the People’s Republic of China (‘China’), seeks to set aside a decision of the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 10 April 2013, with a corrigendum published on 22 April 2013: Qing Quan Yao and Minister for Immigration and Citizenship [2013] AATA 209 (‘the decision’). The decision reviewed a determination made by the respondent (‘the Minister’) on 16 November 2012 to refuse Mr Yao’s application to renounce his Australian citizenship.

2    Mr Yao was born in Shanghai on 8 March 1971, and acquired Australian citizenship on 24 September 2002. Mr Yao holds a current Australian passport which was issued on 7 March 2012 and is due to expire 7 March 2022. In July 2012, Mr Yao applied to the Minister to revoke his Australian citizenship.

3    Section 33 of the Australian Citizenship Act 2007 (Cth) (‘the Act’) provides that a person may make an application to renounce their Australian citizenship. For such an application to be successful, certain statutory requirements must be satisfied. Relevantly, s 33(7) of the Act provides:

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.

4    The Minister refused Mr Yao’s application due to the absence of evidence that Mr Yao had acquired or would acquire citizenship of another country after the renunciation was approved. Mr Yao’s application also did not satisfy the policy guidelines specified in s 69.1 of the Australian Citizenship Instructions 2007 (‘the Instructions’), referred to hereunder.

5    Mr Yao applied to the Tribunal for a review of the Minister’s decision. He elected not to attend the hearing but instead informed the Tribunal that he was prepared to rely upon its decision ‘based on all written submission’ [sic].

6    The Tribunal reviewed the requirements of s 33 of the Act and also referred to the Instructions. It observed at [12] that the Instructions were government policy and should be taken into consideration unless there was a good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.

7    The Tribunal noted at [13] that the Instructions provided details of the evidence required to enable a person to surrender citizenship which included:

Evidence that the applicant was born or is ordinarily resident in a foreign country and will be entitled under the law of that country to acquire the nationality or citizenship of that country after they cease to be an Australian citizen.

8    The Tribunal also noted at [14]–[15]:

Expanding on this last requirement, the Instructions state:

Policy is that evidence the applicant is a citizen of another country should include a statement from a relevant government representative that the person is a citizen of that country or, if the person was born or is ordinarily resident in a foreign country, that the person will acquire the citizenship of that country on renunciation of Australian citizenship.

The term “immediately after” [in s 33(7)(b)] should not be interpreted literally. It is sufficient that the person would acquire another nationality or citizenship within a reasonable period after ceasing to be an Australian citizen. A “reasonable period” would be that which is reasonable in all the circumstances of the case allowing for processes required by the country of acquisition such as processing of an application or attendance at a ceremony.

Underpinning this last requirement are Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961, Article 7 of which provides:

1(a) If the law of a Contracting State permits renunciation of nationality, such renunciation shall not result in loss of nationality unless the person concerned possesses or acquires another nationality.

...

Except in the circumstances mentioned in this article, a person shall not lose the nationality of a Contracting State, if such loss would render him stateless, notwithstanding that such loss is not expressly prohibited by any other provision of this Convention.

9    The Tribunal referred to Article 3 of the Nationality Law of the People’s Republic of China (‘the Chinese law’). The Tribunal stated at [16]–[17]:

The Minister refers to Article 3 of the Nationality Law of the People’s Republic of China which came into effect on 10 September 1980, which 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.

10    Significantly, the Tribunal then made the following observations at [18]:

There is no evidence before me about the operation of the legislation generally, or these provisions in particular, and the Minister does not rely on them. However, they indicate that a person such as Mr Yao who has acquired another nationality will lose his or her Chinese nationality by force of law.

11    The Tribunal concluded that although Mr Yao had been made aware of the necessary requirements to advance the renunciation of his Australian citizenship, he had declined to provide the evidence sought by the Minister. In these circumstances the Tribunal stated at [25]:

Section 33(7) provides that I must not approve Mr Yao’s application unless I am satisfied of one or other of the matters in that provision. On the evidence before me, I cannot be satisfied that Mr Yao is currently a citizen of China (or any other country). Nor can I be satisfied that he will acquire Chinese citizenship (or citizenship of any other country) immediately after his application is approved.

12    The Tribunal accordingly affirmed the Minister’s decision.

APPLICATION TO THIS COURT

13    Mr Yao raised six questions of law on his application to this Court with respect to the Tribunal’s decision. They are, with minor and obvious corrections, as follows:

1.    Whether the decision involved an error of law;

2.    Whether procedures that were required by law to be observed in connection with the making of the decision were not observed;

3.    Whether the AAT member failed to take a relevant consideration into account;

4.    Whether the AAT member breached the rules of natural justice in making the decision;

5.    Whether the AAT member took into account an irrelevant consideration;

6.    Whether the decision of the Tribunal should be set aside under the ADJR Act.

14    Mr Yao attended the hearing of the application. He was not legally represented, but was assisted by an interpreter. Mr Yao provided written submissions prior to the hearing in support of his application and in response to the submissions of the Minister. It was explained to Mr Yao at the hearing that for his application to be successful, it was necessary for him to show an error of law on the part of the Tribunal: s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).

15    It should be noted that the Court has gone to considerable efforts to assist Mr Yao. It directed that Mr Yao receive pro bono legal advice pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). During an interlocutory hearing in the proceeding, the Court provided Mr Yao the opportunity to invite an official from the Chinese consulate to give any evidence he saw fit. Mr Yao declined such offer.

16    Neither the oral nor written submissions of Mr Yao strictly adhered to the questions of law raised in his notice of appeal. This is not a criticism of Mr Yao, but rather is mentioned as an explanation for the reasons that follow. It became clear from Mr Yao’s submissions that his grievances with the decision of the Tribunal were as follows: that the Tribunal ignored his affidavit and his expired Chinese passport and in doing so failed to take into account relevant considerations; that in failing to assist him to obtain a new Chinese passport, the Tribunal did not afford him natural justice; that in failing to make further enquiries of him, the Tribunal did not afford him natural justice; that the Tribunal took into account irrelevant considerations when it observed that he could make further applications to renounce his Australian citizenship and obtain the necessary evidence to do so himself; that only the Minister could make the decision to reject his application, not the Tribunal; and lastly, that it was not open to the Tribunal to consider the operation of the Chinese Law. Each of these arguments fails for the following reasons.

17    Mr Yao claims that the Tribunal ignored his affidavit in support of his application to renounce his Australian citizenship. Whilst the Tribunal did not specifically refer to the affidavit, it nevertheless referred to the salient fact, namely that Mr Yao believes that he has never lost Chinese citizenship. In these circumstances, the Tribunal cannot be said to have failed to take the affidavit into account. The decision at [20] refers to Mr Yao’s expired Chinese passport, in addition to his certificate of Australian citizenship, current Australian passport, birth certificate, New South Wales drivers licence and bank statement. At [25] (reproduced above at [11]), the Tribunal found that it was not satisfied on all of the evidence before it that either Mr Yao was a citizen of China, or would become a citizen of China upon his application to renounce his Australian citizenship being approved. Mr Yao is dissatisfied with such conclusion. However, the Tribunal did not fail to take into account the details contained in Mr Yao’s affidavit, nor did it ignore his expired Chinese passport.

18    With regard to his claims that he was not afforded natural justice, Mr Yao has misconceived the respective roles of the Tribunal and the Minister. First, neither the Tribunal nor the Minister were required to conduct investigations, assist him in obtaining a new Chinese passport, or provide evidence in support of his claim. It was for Mr Yao to make out his application. Secondly, the Tribunal was not obliged to make further enquiries of Mr Yao before making its decision: Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at [109]-[111]. Prior to the Tribunal hearing, Mr Yao sent an email to the Tribunal, and forwarded a copy to the solicitors for the Minister, stating in part:

I have no intention to attend AAT hearing on 10 April 2013. I would like to ask AAT member make decision for current case based on all written submission. If AAT member have any questions, please send them to me through this email. I wish I could have one week to reply his questions (if any).

19    The Tribunal, having noted that Mr Yao would decline to attend the hearing, nevertheless held a hearing. The Tribunal noted at [4]–[5] of the decision:

In response, the Tribunal wrote to Mr Yao advising that he was not required to attend the hearing but the Minister’s representative had advised he wished to attend to answer any questions the Tribunal might have. The Tribunal advised Mr Yao that, if it had any questions of him, it would put them in writing and give him time to respond but, if not, it would hear what the Minister’s representative had to say and then make a decision.

I am satisfied that Mr Yao has had an opportunity to be heard. No questions with any bearing on the decision arose at the hearing. These written reasons reflect those given orally at the conclusion of the hearing.

20    It must be inferred that the Tribunal was satisfied, on the material before it, that it could reach a decision and that it had no need to ask questions of Mr Yao. Such circumstances do not disclose a denial of natural justice.

21    Mr Yao claims that the Tribunal took into account irrelevant considerations by mentioning the fact that he could make further applications to renounce his Australian citizenship and obtain the necessary evidence to do so himself. The relevant statement of the Tribunal is at [24] of the decision as follows:

It is not clear why Mr Yao has not approached the Chinese embassy in Australia for confirmation that he has retained his Chinese citizenship or, alternatively, that he would acquire Chinese citizenship after he ceases to be an Australian citizen. From what I can gather from the Minister’s representative, he has been advised several times that is what he should do but, for whatever reason, he has not. It might be said that the Minister could make this inquiry on his behalf, but there is nothing to suggest that Mr Yao could not do so himself if he wished. In that case, I see no reason why the Minister should be required to obtain that evidence.

22    The Tribunal continued at [27]:

Nothing about this decision prevents Mr Yao from applying again at any time to renounce his Australian citizenship. If he decides to do, he should contact the appropriate Chinese authorities for a statement that he is a citizen of China or that he will acquire Chinese citizenship on renunciation of his Australian citizenship.

23    These statements are merely observations of the Tribunal, and are made at least in part to assist Mr Yao should he wish to apply to renounce his Australian citizenship in the future. The Tribunal has not taken into account an irrelevant consideration. The reasons for the refusal of Mr Yao’s application are made abundantly clear by the Tribunal at [25]; that is, the evidence was not sufficient for the purposes of s 33(7) of the Act.

24    Mr Yao’s submission that it was the Minister’s role to determine his application under s 33(7) of the Act, and not the Tribunal, again demonstrates that he does not understand the role of the Tribunal. Section 43(1) of the AAT Act empowers the Tribunal to exercise all of the powers and discretions conferred by any relevant enactment on the decision-maker whose decision is challenged. Accordingly the Tribunal was empowered to decide the application in accordance with the Act and on the material before it: Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440.

25    Mr Yao’s last submission is that Article 9 of the Chinese law does not apply to him, and as such, there is no evidence that shows that he has lost his Chinese citizenship. Such submission misunderstands the basis on which the Tribunal made its decision. As stated at [23] above, the evidence before the Tribunal was not sufficient for the purposes of s 33(7) of the Act. Whilst the Tribunal noted the apparent effect of the Chinese law, it did not form an operative part of the Tribunal’s decision.

26    The Court is satisfied that no error of law exists in the Tribunal’s decision. It follows that the application must be dismissed with costs.

Associate:

Dated:    30 August 2013