Yao v Minister for Immigration and Citizenship

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.