FEDERAL COURT OF AUSTRALIA

Yao v Minister for Immigration and Citizenship [2013] FCA 1275

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1    This is an application for an extension of time and leave to appeal from the decision of the primary judge (Yao v Minister for Immigration and Citizenship (No 1) [2013] FCA 654) to dismiss Qing Quan Yao’s interlocutory application for orders that the Minister provide:

“(1)    … 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)    … all necessary help for the Applicant to get the applicant’s Chinese passport [sic].”

Background

2    The Administrative Appeals Tribunal found that when Mr Yao became an Australian citizen in September 2002, he automatically lost his citizenship of the People’s Republic of China in accordance with Chinese law. Mr Yao wished to renounce his Australian citizenship with a view to reviving, relying on the retention of, or regaining his Chinese citizenship. The Minister and the Tribunal rejected his renunciation application under s 33(7) of the Australian Citizenship Act 2007 (Cth) because they were not satisfied that, if they did so, Mr Yao would be or become again a citizen of China. In its reasons, the Tribunal questioned why Mr Yao had not approached the Chinese Embassy to confirm that either he had retained his Chinese citizenship or would acquire Chinese citizenship were he to cease being an Australian citizen.

3    Mr Yao appealed against the Tribunal’s decision on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). That appeal provided the context for the orders he sought in the interlocutory application.

4    The primary judge rejected Mr Yao’s argument that the Court had power to require the Minister to give him assistance in dealing with the Chinese authorities in pursuing his application to renounce his Australian citizenship. His Honour held that neither of s 33Z of the Federal Court of Australia Act 1976 (Cth) nor s 44(7) of the AAT Act invested the Court with power to make the interlocutory orders sought by Mr Yao. The primary judge also held that that relief was inappropriate in an appeal under s 44 of the AAT Act because that was a jurisdiction to entertain an appeal on a question of law. His Honour also held that the relief sought in the interlocutory application would not assist in showing that there was any appellable error in the Tribunal’s decision.

This application

5    Both parties sought that the present application be determined on the papers and filed written submissions in support of their respective positions. On 28 October 2013, the Chief Justice ordered that the application be determined on the papers.

6    On 19 June 2013, the primary judge made the order dismissing Mr Yao’s interlocutory application. Mr Yao said that he did not receive the primary judge’s written reasons until they were delivered on 4 July 2013. He said that he received legal advice on 8 August 2013 to seek leave to appeal. It would have been reasonable for Mr Yao to think that he had until 18 July 2013, to seek that leave. However, when he filed the present application on 17 September 2013 he was well outside the 14 days allowed under r 35.13(a) of the Federal Court Rules 2011 (Cth) for him to seek leave to appeal. Indeed, he only brought the application after his Honour dismissed his proceedings on 30 August 2013 following the final hearing.

7    Mr Yao’s submissions in support of the present application repeated the assertions that he had made to the Tribunal and the primary judge that the Minister should provide him with the assistance he had sought in the interlocutory application.

Consideration

8    Mr Yao has not given any explanation for his delay in seeking leave to appeal after 8 August 2013. The appeal he seeks to bring is without substance. That is because the primary judge’s reasons for dismissing the interlocutory application were correct. Thus, it would not be appropriate to grant an extension of time in the circumstances: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, 540-541 [66(4)] per Kirby J; Reg v Secretary for the Home Department; Ex parte Metha [1975] 1 WLR 1087 at 1091.

Conclusion

9    Accordingly, the application must be dismissed with costs.

Associate:

Dated:    28 November 2013