Yao v Minister for Immigration and Border Protection [2014] FCAFC 17 | Case summary

Yao v Minister for Immigration and Border Protection [2014] FCAFC 17 | Case summary | Zoe

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2.1 The application for renunciation of Mr Yao's Australian citizenship 7 Mr Yao was born in Shanghai in China in 1971. He was granted a Chinese passport in 1998 which has since expired. He arrived in Australia in July 2000 and acquired Australian citizenship on 24 September 2002. He currently holds an Australian passport issued on 7 March 2012 which is due to expire on 7 March 2022. 8 Mr Yao applied to the Minister to renounce his Australian citizenship under s 33 of the Act on 4 July 2012. The reason given by Mr Yao in his application for renunciation was (without alteration); "Renew my Chinese passport and resume my Citizenship of China to get a professional job in China." 9 Section 33 of the Act provides that a person may apply to renounce their Australian citizenship. Under s 33(2) the Minister must in writing approve or refuse to approve the person renouncing his citizenship. Relevantly, s 33(3) provides that: "(3) Subject to this section, the Minister must approve the person renouncing his or her Australian citizenship if the Minister is satisfied that: (a) the person is aged 18 or over, and is a national or citizen of a foreign country, at the time the person made the application; or (b) the person was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country because the person is an Australian citizen." 10 Conversely, s 33(7) of the Act 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." 11 In support of his application, Mr Yao provided certified copies of his certificate of Australian citizenship, his current Australian passport, his expired Chinese passport, his birth certificate with an English translation, his New South Wales driver's licence, and a bank statement. 12 Initially, the Minister's delegate returned Mr Yao's application to him on 24 August 2012 advising that: "You did not include evidence that you acquired, or will acquire, citizenship of another country for example a naturalisation certificate or statement from the relevant authorities. Please provide a certified copy of recently issued certificate of restoration or letter from the Ministry of Public Security of the People's Republic of China stating that it will be acquired upon renunciation of Australian citizenship. Passports, family registers and national ID cards are not considered evidence of foreign citizenship." 13 Mr Yao responded to the delegate's letter, advising that (without alteration): "I think the application for announcing Australian Citizenship should be approved. My reasons as following: 1. Laws of the People's Republic of China can only be applied in China. 2. No evidence that Chinese Law can be applied in Australia. 3. Even DIAC officer thinks that I may lose Chinese Citizenship, it can only occur when I enter into China after I got Australian citizenship. 4. The evidence that I have entered China after I got Australian Citizenship. 5. Since I have not lost my Chinese Citizenship, there is no legal ground that I should apply to Ministry of Public Security in China to restore my Chinese nationality. 6. Furthermore, I had provided a certified copy of Chinese passport, which is evidence that I acquired citizenship of China before I left China on July 2000." 14 The delegate refused Mr Yao's application to renounce his citizenship because the delegate was not satisfied at the time that Mr Yao currently held, or would acquire, foreign citizenship upon renunciation of his Australian citizenship.

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2.2 The decision of the Tribunal 15 On 3 December 2012, Mr Yao applied to the Tribunal for review of the delegate's decision. 16 The Tribunal wrote to Mr Yao on 8 February 2013 advising him that his application had been listed for hearing on 10 April 2012. Mr Yao replied that he had "no intention" of attending the hearing and wanted a decision made "based on all written submission" [sic]. 17 The Tribunal advised Mr Yao that he was not required to attend. The Tribunal also advised that the Minister's representative had confirmed that he would be attending to answer any questions that the Tribunal may have. The Tribunal advised Mr Yao that, if it had any questions of him, it would put them in writing and ask him to respond but, if not, it would hear what the Minister's representative had to say and then make a decision. 18 The application was heard on 10 April 2013 in Mr Yao's absence and written reasons for the decision were given on 22 April 2013. In its reasons, the Tribunal recorded that "[n]o questions with any bearing on the decision arose at the hearing." No letter advising of any further questions was sent to Mr Yao. 19 In its reasons, the Tribunal reviewed the requirements of s 33 of the Act and referred to the policy guidelines specified in the Australian Citizenship Instructions 2009 ("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, citing Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645. It went on to note at [13] of its reasons that the Instructions included details of the evidence required to enable a person to renounce his or her citizenship. Expanding upon those details, the Tribunal noted at [14] that 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." 20 The Tribunal further observed that, underpinning this requirement are Australia's obligations under the Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975); [1975] ATS 46, 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. ... 6. 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." 21 The Minister referred the Tribunal to Article 3 of the Nationality Law of the People's Republic of China ("the Chinese law") which came into effect on 10 September 1980 and provides that: "The People's Republic of China does not recognise dual nationality for any Chinese national." 22 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." 23 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." 24 After referring to Mr Yao's reasons for wishing to renounce his Australian citizenship as stated in his application, and the evidence led by him, the Tribunal affirmed the delegate's decision, concluding at [25] that: "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."

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2.4 The decision on the substantive appeal under s 44(1) of the AAT Act: [2013] FCA 873 29 In his reasons for rejecting the substantive appeal, the primary judge observed at [16] that Mr Yao's submissions did not strictly adhere to his notice of appeal. However, his Honour considered that it was clear that his grievances with the Tribunal's decision 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." 30 The primary judge found that none of these grounds were made out and held that: a) the Tribunal had regard to the salient fact deposed to in Mr Yao's affidavit, being his belief that he never lost his Chinese citizenship and to his expired passport (primary reasons at [17]); b) no breach of natural justice was established, there being no requirement that the Tribunal (or delegate) undertake investigations, provide evidence in support of Mr Yao's claim or assist him to obtain a new Chinese passport, nor in the circumstances was there any requirement that the Tribunal make any further enquiries of Mr Yao before making its decision (at [18)-[20]); c) the statements complained of were merely observations by the Tribunal made in part to assist Mr Yao should he wish to renounce his citizenship and were not irrelevant considerations taken into account in reaching the decision (at [23]); d) the submission that it was the Minister's role to determine his application under s 33(7) was misconceived, the Tribunal being empowered by s 43(1) of the AAT Act to decide the application on the material before it (at [24]); and e) the evidence of Chinese law was not an operative part of the Tribunal's decision (at [25]).

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3.1 The questions of law posed in the notice of appeal 34 The notice of appeal poses nine "questions of law", namely (without alteration): 1. Whether the role of Minister and the role of the Tribunal are the same for the purposes of s 33(7) of the Australian Citizenship Act 2007. 2. Whether that 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 was failing to take a relevant consideration into account in the exercise of a power. 4. Whether the AAT member has breach the rules of natural justice occurred in connection with the making of the decision. 5. Whether the AAT member was taking an irrelevant consideration into account in the exercise of a power. 6. Whether the decision of Administrative Appeals Tribunal should be set aside under Administrative Decisions (Judicial Review) Act 1977. 7. Whether the Tribunal breach rules of nature justice when it failed to delivered new issue to the applicant and give the applicant an opportunity to respond to it. 8. Whether Justice Cowdroy has breach the rules of natural justice occurred in connection with the making of the decision. 9. Whether Justice Cowdroy was failing to take a relevant consideration into account in the exercise of a power. 35 Questions 8 and 9 are specific to the appeal. Questions 2-6 inclusive repeat the purported "questions of law" identified in Mr Yao's notice of appeal under s 44(1) of the AAT Act in the proceedings before the primary judge. Questions 1 and 7 reflect arguments that appear to have been made at the hearing below, as summarised by the primary judge at [16] of his Honour's reasons. 36 It is highly doubtful that these questions ever raised a question of law for the purposes of s 44(1) of the AAT Act. The Minister correctly identified deficiencies in the formulation of the questions, in particular, that they failed to accord with the requirement in r 33.12(2)(b) of the Federal Court Rules 2011 (Cth) that a notice of appeal must state, relevantly, "the precise question or questions of law to be raised on the appeal" (emphasis added), as opposed, for example, to a merely inquisitorial question. The importance of complying with that rule is apparent from the fact that the questions of law stated in the notice of appeal constitute the subject-matter of the appeal: see, eg, Comcare v Etheridge (2006) 149 FCR 522 at 527 [14] (Branson J). Nonetheless, some allowance may be given to an unrepresented litigant: Kowalski v Chief Executive Officer, Medicare Australia (2010) 185 FCR 42 at 51 [38] (Mansfield J). In the circumstances, the convenient course is to address the substantive grounds of appeal. In so doing, I consider it fair to read those grounds which take issue directly with the finding of the Tribunal as being intended to take issue with the failure of the Court below to uphold the grounds alleged.

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3.3 The respective roles of the Minister and the Tribunal (ground 1) 40 It is not clear what point Mr Yao seeks to make in contending that the Tribunal's powers were more limited than those of the Minister. In any event, ground 1 of the notice of appeal misapprehends the nature of the Tribunal's function. The role of the Tribunal is prescribed by s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides that: "For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and; (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal." 41 Contrary, therefore, to Mr Yao's submissions, s 43 of the AAT Act expressly provides that the Tribunal may exercise all of the powers and discretions conferred on (relevantly) the Minister by s 33 of the Act. Thus, it is well established that the Tribunal's function on review is to make the correct and preferable decision on the material before it, that is, "'to do over again' what the original decision-maker did": Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 ("Shi") at 315 [100] (Hayne and Heydon JJ); see also at 299 [37] (Kirby J). As Kiefel J explained in Shi at 327 [141] (albeit dissenting on an issue not presently relevant): "The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs [(1979) 46 FLR 409] confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed. To the contrary of the argument put by the respondent on this appeal, that the Tribunal's exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it." (footnotes omitted)

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3.4 Adequacy of the Tribunal's reasons (ground 4) 42 Mr Yao contended that the primary judge ought to have found that the Tribunal had failed to provide "adequate particulars of reasons" for finding that it was not satisfied that Mr Yao held Chinese citizenship or would acquire a foreign citizenship on renunciation of his Australian citizenship. Section 43(2B) of the AAT Act requires that written reasons must address certain matters. Specifically, s 43(2B) provides that: "Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based." 43 That obligation "…focuses upon the thought processes of the decision maker, and may disclose jurisdictional error": Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 623 [33] (Gummow A-CJ and Kiefel J). As French J (as his Honour then was) explained in Secretary, Department of Employment and Workplace Relations v Homewood (2006) 43 AAR 236 at 245 [40], "…the Tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case." 44 I have summarised the steps in the Tribunal's reasons at [19]-[24] above. While the Tribunal's reasons are shortly stated, I consider that they sufficiently expose the Tribunal's reasons for its decision in compliance with s 43(2B) of the AAT Act. Mr Yao's evidence of Chinese citizenship did not comply with the policy contained in the Instructions, which there was no reason not to apply, and was not sufficient to satisfy the Tribunal that he had Chinese citizenship (or citizenship of another country), or that he would acquire Chinese citizenship (or citizenship of another country), upon renouncing his Australian citizenship. The Tribunal's doubts in this regard also appear to have been reinforced by the evidence (albeit limited) of Chinese law, which it was open to the Tribunal to take into account and give such weight as it considered appropriate. However, fairly read, in my view the reasons do not suggest that the evidence was determinative but rather that the decision turned upon Mr Yao's failure to provide sufficient evidence to satisfy the Tribunal that the criteria in s 33(7) of the Act were met.

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3.5 The contention that Mr Yao had proved Chinese citizenship on the balance of probabilities (grounds 5 and 10) 45 The short answer to Mr Yao's contention that he had proved that he currently held Chinese citizenship is that s 33(7) of the Act imposes an obligation upon the Minister, and, therefore, the Tribunal on review, not to approve the person renouncing his or her citizenship unless "satisfied" that the criteria in subs (a) or (b) are met. The existence of that obligation is consistent with the apparent purpose of the provision being to ensure that a person seeking to renounce his or her citizenship does not become stateless, in line (as the Tribunal observed) with Australia's obligations under the Convention on the Reduction of Statelessness op cit; Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) at 44. The reasons of the Tribunal reveal that Mr Yao simply failed to establish those matters to its satisfaction at which point the Tribunal had no option under s 33(7) of the Act but to refuse to allow him to renounce his Australian citizenship. There is no error of law in that approach provided that the state of satisfaction was lawfully reached. 46 In this regard, Mr Yao's submissions focussed upon the contention that the Tribunal or the primary judge had erred in failing to find that the criteria in s 33(7)(a) and (b) were established on the balance of probabilities. That contention is misconceived at a number of levels. 47 First, Mr Yao's appeal to the primary judge was made under s 44 of the AAT Act. That section permits an appeal only on a question of law, such an 'appeal' being in truth an application for judicial review in the original jurisdiction of the Court. It is not the role of the Court on judicial review to undertake an assessment of the correctness of findings of fact made by the Tribunal. The jurisdiction of this Court, in considering an appeal from the decision of the primary judge, is similarly constrained. In considering the correctness of the decision by the primary judge, the Full Court is restricted to a determination of whether the primary judge correctly held that there was no error of law in the Tribunal's decision. Mr Yao's invitation to this Court to find that he held Chinese nationality on the balance of probabilities constitutes an impermissible invitation to engage in a purely factual exercise. 48 Secondly, while a Court in civil litigation has to decide where the truth lies on the balance of probabilities, administrative decision-making is of a different nature. As Brennan CJ, Toohey, McHugh and Gummow JJ held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282, "A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law". 49 Thirdly, in the context of s 33(7) of the Act, the criteria which must be met in order to avoid a refusal of the application for renunciation of citizenship are expressed in terms of whether or not the Minister holds the requisite state of satisfaction as to the matters identified in s 33(7). In other words, the criteria turn upon the existence of a subjective state of mind in the decision-maker. They do not turn upon whether or not the person seeking to renounce his or her citizenship is, as a matter of objective fact, a national or citizen of a foreign country, or will be immediately after the approval: see, by analogy, Minister for Immigration and Ethnic Affairs v Wu Shan Liang op cit at 274-275. 50 Turning then to Mr Yao's specific grounds of appeal, in relation to ground 5 of his notice of appeal, Mr Yao contends that the primary judge ought to have found that the Tribunal failed to take into account a relevant consideration, namely, Mr Yao's sworn evidence that he is a citizen of China and his expired Chinese passport. In support of the ground, Mr Yao pointed to the fact that his affidavit was not specifically referred to in the Tribunal's reasons and, while the Tribunal listed the passport with the applicant's other evidence in support of his application, it did not take the passport into account in any intellectual process. 51 Similarly, in relation to ground 10, Mr Yao's complaint is that the primary judge ought to have found that the Tribunal ignored the fact that his affidavit was "prima facie evidence to prove Mr Yao is a citizen of China", and not merely a statement of his belief that he was a citizen of China. 52 However, the legal obligation on the Tribunal is to address an applicant's claim or integer of a claim, as opposed to referring to every piece of evidence or every contention made in support of the claim: LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 at 198 [143] (North, Logan and Robertson JJ); see also the helpful discussion in Australian Postal Corporation v Hughes (2009) 50 AAR 267 at 271-273 [12]-[19] (Flick J). While in some cases a failure to refer to material may lead to a conclusion that there has been jurisdictional error, in other cases the evidence may not have been specifically mentioned by the Tribunal because the evidence was irrelevant or regarded as of little weight. In this case, the Tribunal referred to the salient fact deposed to in the affidavit, being Mr Yao's belief that he had maintained his Chinese citizenship at [23] of its reasons (albeit pointing also to the apparent tension between that belief and other aspects of his case). The Tribunal had also specifically referred to the expired passport as evidence put forward by Mr Yao in support of his application. Bearing in mind that the Tribunal's reasons are not to be read "with an eye keenly attuned to error", it cannot be inferred in these circumstances that the evidence in question was ignored. Rather, properly read, it is apparent from the Tribunal's reasons, especially at [25], that it regarded the evidence as insufficient 53 That being so, the short answer to Mr Yao's submissions is that it was open to the Tribunal to give the assertion in Mr Yao's affidavit and the expired passport such weight, if any, as it saw fit. No error of law lies in the Tribunal having regarded the sworn assertion by Mr Yao of his Chinese citizenship together with the other evidence as insufficient to satisfy it of the matters asserted. It is not the role of the primary judge, or of this Court, to determine whether any greater weight ought to have been attached to Mr Yao's evidence. That would require the Court to embark upon an impermissible review of the factual merits of Mr Yao's application.

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3.6 Alleged breaches of natural justice in relation to the failure to assist Mr Yao to obtain evidence from the Chinese authorities and to renew his Chinese passport (Grounds 6, 9 and 12) 54 Mr Yao alleged various breaches of natural justice by the delegate, the Tribunal and the primary judge. 55 First, with respect to ground 6 of the notice of appeal, Mr Yao submitted that the Tribunal was in error in not "bypass[ing] DIAC's policy" to help him to obtain a renewed Chinese passport and use that to prove that he is currently a Chinese citizen. The failure to provide such assistance was said to constitute a breach of the natural justice hearing rule. 56 Secondly, Mr Yao submitted in support of ground 12 of the notice of appeal that, given that the Tribunal had rejected his application on the ground that it was not satisfied on the evidence that he was a citizen of China or would acquire Chinese citizenship immediately on approval of his renunciation application, the primary judge breached the rules of natural justice in dismissing the applicant's interlocutory application seeking orders that the Minister provide the necessary evidence and assistance to renew his Chinese passport. 57 Thirdly, in relation to ground 9 of the notice of appeal, Mr Yao submitted that the primary judge, in dismissing his interlocutory application for orders that the Minister assist him in obtaining a "renewed" Chinese passport, acted in breach of the natural justice hearing rule as the ruling had the consequence that he lost the opportunity to present his renewed Chinese passport as evidence of his citizenship before the Court. 58 As grounds 9 and 12 seek to challenge an interlocutory decision, leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). As I have earlier recounted, the application for an extension of time within which to appeal and for leave to appeal from the interlocutory decision of the primary judge was refused by Rares J in Yao v Minister for Immigration and Citizenship [2013] FCA 1275: see at [31] above. I agree with Rares J that the primary judge correctly dismissed the interlocutory application. The Court lacks power to make orders to require the Minister to provide assistance to Mr Yao to confirm his Chinese citizenship or renew his Chinese passport. In this regard, it is not even suggested that any relevant documents are in the power, possession or control of the Minister. The documents in question were sought "from the Chinese authorities", and the power to issue a Chinese passport lies exclusively with the Chinese authorities, not with the Minister. 59 Furthermore, each of grounds 6, 9 and 12 misconceive the role of the Minister and the Tribunal. As the primary judge held at [18], "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." In this regard, I note that Mr Yao did not contend on the appeal that the Tribunal was required to conduct investigations. His submissions were that the Tribunal should have assisted him to obtain a Chinese passport or that the Minister should have been required to assist him: cf Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. In any event, consistently with the decision of the Court below, there was nothing to suggest that this was a case in which such a duty might arise as an aspect of the Tribunal's obligation to review, there being among other things no material to suggest that there would have been any utility in the Tribunal undertaking further inquiries: SZIAI op cit at 1129 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Indeed, the limited evidence before the Tribunal as to the effect of Chinese law indicated that any such inquiry would be futile. 60 Grounds 9 and 12 also appear to be premised upon the erroneous assumption that the Court has jurisdiction to revisit the merits of the Tribunal's decision and determine the sufficiency of evidence to establish that Mr Yao currently holds Chinese citizenship. 61 Finally, the contention that the matters pleaded in grounds 6 and 12 constitute a breach of natural justice is premised upon a misunderstanding of the requirements of the hearing rule. The natural justice hearing rule relevantly requires that a person whose interests may be adversely affected by a decision has a right to be heard. That in turn is satisfied by the provision of an opportunity to deal with matters adverse to the person's interests that are "credible, relevant and significant": Kioa v West (1985) 159 CLR 550 at 629 (Brennan J) (approved in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 261 [19] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ)). Where the opportunity is given, the requirements of the natural justice hearing rule are met irrespective of whether or not the person in fact takes advantage of that opportunity: see, eg, Allesch v Maunz (2000) 203 CLR 172 at 185 [38] (Kirby J). It is not part of the rules of natural justice to require that the decision-maker seek to remedy the failure by the person affected by the decision to take advantage of the opportunity, such as by seeking to require another person to undertake investigations and obtain evidence from a third party.

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3.6.1 Other alleged breaches of natural justice (grounds 7 and 11) 62 By ground 7, Mr Yao also contends that the primary judge ought to have held that the Tribunal was in breach of the natural justice hearing rule for the reason that he did not have an opportunity to respond to certain considerations said to have been taken into account by the Tribunal. 63 The first of these considerations is the statement by the Tribunal in its reasons at [24] that: "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." 64 Similar complaint was made in ground 11 of the notice of appeal of the statement in the Tribunal's reasons at [27] that: "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." 65 However, as the primary judge held at [23] of his reasons in rejecting the argument then made that these were irrelevant considerations, "[t]hese 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." I agree that the statements were merely observations made by the Tribunal which were not taken into account by the Tribunal in reaching its substantive decision on Mr Yao's application. As such, there was no adverse matter taken into account that could necessitate the provision of an opportunity for Mr Yao to respond. 66 Secondly, Mr Yao asserts that there has been a breach of natural justice because his application was refused by the Tribunal on the ground that it was not satisfied that he is currently a Chinese citizen or will acquire Chinese citizenship immediately after approval of his application, in circumstances where the "Department's letters" had raised only the latter issue. The "Department's letters" were not further identified by Mr Yao and there is no correspondence before the Court from the Department, aside from a letter from the Minister's delegate dated 16 November 2012 advising Mr Yao of the decision and enclosing the Decision Record in evidence. However, it would appear that the letter referred to is that sent by the Department on 24 August 2012 and quoted (at least in part) in the Tribunal's reasons at [21]. 67 In any event, the submission must be rejected. a) First, it was always incumbent on Mr Yao to satisfy the Tribunal that he had met the criteria in s 33(7)(a) or (b) of the Act. Mr Yao was also given notice of the need to provide evidence in line with the policy in the Instructions by the letter from the delegate dated 24 August 2012 and in response, maintained his case to the delegate that he was a Chinese citizen, without providing evidence of the kind identified in the Instructions or any further evidence. b) Secondly, and in any event, any breach of natural justice by the delegate was superseded by the decision of the Tribunal. In particular: i. Unless the Tribunal or the delegate identifies any issue other than those that the delegate considered dispositive, it would ordinarily follow that the issues arising on the review would be the same issues and Mr Yao was entitled to assume that those are the issues on review: see, by analogy, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 163 [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). The issue considered dispositive in the present case by the delegate was the failure by Mr Yao to provide evidence that satisfied the policy contained in the Instructions, namely "a statement from the relevant authority to the effect that you hold or will acquire citizenship of a foreign country." ii. The failure to provide sufficient evidence to establish that he holds Chinese citizenship is squarely raised in the Minister's statement of facts and contentions in the Tribunal proceedings dated 22 March 2013. iii. The substance of the complaint made by Mr Yao now was identified by him as an issue in his statement of facts, issues and contentions at [5] before the Tribunal, where he also reiterated his claim at [19] that he is currently a citizen of China. 68 In the circumstances, it is plain that Mr Yao was on notice of the need to satisfy the Tribunal that he was, as he asserted, currently a Chinese citizen and of the kind of evidence ordinarily required, and that he was afforded ample opportunities to provide such evidence. 69 Finally, there is no substance in ground 8 which alleges that the Tribunal made a decision based on a finding for which there was no evidence in "assuming" that the Chinese authorities could provide a statement that he is a citizen of China or would become so immediately on renunciation of his Australian citizenship. There was no assumption made either way by the Tribunal. The statement merely reflected the government's policy contained in the Instructions to which the Tribunal could properly have regard: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641 (Brennan J, then President of the AAT), recently followed by the Full Court of the Federal Court in Singh v Minister for Immigration and Citizenship (2012) 199 FCR 404.

[26]

The application for leave to amend the notice of appeal 70 Mr Yao sought leave at the hearing to amend the notice of appeal to add a further ground of appeal, namely, that the primary judge "has blocked the appellant's appeal right to the High Court." The order to which the "appeal right" is said to relate is the primary judge's order on 19 June 2013 dismissing Mr Yao's interlocutory application. The reason why the "appeal right to the High Court" is said to be blocked is that the primary judge delivered his reasons for dismissing the interlocutory application 15 days after making the orders and therefore an extension of time was required for Mr Yao to seek leave to appeal under rules 35.13 and 35.15, Federal Court Rules 2011 (Cth). In addition, Mr Yao sought leave to make amendments of a consequential kind to the questions of law said to be raised by the appeal and the relief sought on the appeal. 71 The ground has no merit. Shortly stated, Mr Yao had no "appeal right" to the High Court from the decision of the primary judge on 19 June 2013. Rather, Mr Yao had the right under the Federal Court Rules 2011 (Cth) to apply to the Federal Court for an extension of time within which to seek leave to appeal, which right he exercised. Those interlocutory applications were considered and refused by Rares J for reasons which reveal no error. Accordingly, leave should be refused to amend the notice of appeal to include the further ground. 72 Leave was also sought to include the following orders in the prayer for relief: "1. The judgment of Justice Cowdroy made on 19 June 2013 be set aside. 2. Order that the Respondent provide a copy of sample, template and/or title and issuer of document that 'from the Chinese authorities as to his citizenship or nationality status in China'. 3. Order the Respondent provide all necessary help for the Applicant to get the applicant's Chinese passport." 73 It is apparent from the reasons already given that this Court has no power to make orders to the effect sought. That being so, the application for leave to amend to include these orders should be refused.

Yao v Minister for Immigration and Border Protection

At a glance

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Judgment (27 paragraphs)

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Legislation Cited (5)

Cases Cited (18)

Cited By (7)