Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 72

Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 72 (2 February 2021)

Division:GENERAL DIVISION

File Number:          2020/1935

Re:Tuck Yeeng Chaang

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:2 February 2021

Place:Brisbane

The Tribunal sets aside the decision under review and in substitution, pursuant to s 33(2) of the Australian Citizenship Act 2007, approves the Applicant renouncing her Australian citizenship.

..................................[SGD].....................................

Deputy President J Sosso

CATCHWORDS

CITIZENSHIP – review of decision to refuse the applicant’s application to renounce Australian citizenship under s 33 of the Australian Citizenship Act 2007 – whether applicant a national or citizen of a foreign country at the time of application – decision under review set aside – applicant’s renunciation of Australian citizenship approved

LEGISLATION

Australian Citizenship Act 2007 (Cth)

Federal Constitution of Malaysia

Nationality Law of the People’s Republic of China

CASES

Bachmann and Minister for Immigration and Multicultural Affairs [1999] AATA 465

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Yao v Minister for Immigration and Citizenship (No 2) (2013) 61 AAR 68

Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21

SECONDARY MATERIALS

Australian Citizenship Policy

Australian Citizenship Instructions

REASONS FOR DECISION

Deputy President J Sosso

2 February 2021

INTRODUCTION

1. Ms Tuck Yeeng Chaang (the Applicant) seeks to renounce her Australian citizenship.  She was born in Malaysia in June 1965 and acquired Malaysian citizenship at birth.  On 26 January 2013 the Applicant was conferred Australian citizenship – T5 p. 185.

2. On 19 June 2019 the Applicant lodged an application for renunciation of her Australian citizenship – T5 pp. 177 – 189. The application was made pursuant to s 33 of the Australian Citizenship Act 2007 (the Act). Section 32A explains that the Act provides for five ways in which a person can cease to be an Australian citizen. Relevantly, the first listed way is renunciation by application pursuant to s 33.

3. The Applicant’s stated reason for seeking to renounce her Australian citizenship was as follows – T5 p. 178:

   “Caring for elderly parents in Malaysia.”

4. Attached to the renunciation application were, firstly, certified extracts from the Applicant’s Australian passport which was issued on 12 January 2017 and is effective until 12 January 2027 and her New South Wales driver’s licence, which expired on 30 June 2020 – T5 p. 184.

5. The Applicant also attached a copy of her Malaysian Passport which was issued on 16 February 2017 and which will not expire until 16 February 2022 and her current Malaysian Identity Card (MyKad) – T5 187.

6. After receiving the application, the Department of Home Affairs (the Department) contacted the Applicant on a number of occasions between 24 June 2019 and 13 February 2020 requesting further information or clarification of the information received.

7. On 28 February 2020 the Department notified the Applicant that a decision had been made on 27 February 2020 not to approve her application for renunciation of her Australian citizenship (the reviewable decision) and attached to the Departmental letter was a detailed Decision Record – T2 pp. 13 – 20.  The Summary of Findings and Decision was as follows – T2 p. 16:

   “I am satisfied that you are Tuck Yeen [sic] Chaang date of birth…, place of birth Malaysia and I am therefore satisfied of your identity.  Having satisfied myself of your identity, I am satisfied that the information I have taken into consideration in making my decision is related to you.

   I have considered your application against the requirements set out in section 33 of the Australian Citizenship Act 2007 (the Act).  I have decided to refuse your application to renounce Australian citizenship because you have failed to provide evidence that you were a national or citizen of a foreign country at the time you made the application.”

8. On 24 March 2020 the Applicant made an application to the Tribunal for a review of the reviewable decision – T1 pp. 7 – 12. In response to the Question “Why do you claim the decision is wrong?”, the Applicant gave the following response – T1 p. 10:

   “A different decision should be made.”

   BACKGROUND INFORMATION

9. It is not disputed that the Applicant was born in Kuala Lumpur, Malaysia in 1965, and that she acquired Malaysian citizenship at birth – T5 pp. 177 – 178.

10. Further, it would appear that the Applicant has resided in Australia for approximately 15 years and has an Australian husband who is undergoing treatment for cancer – Document D, Applicant’s email of 4 August 2020 to the Tribunal Registry.

11. Set out below is a chronology of the written exchanges between the Applicant and Departmental officers following receipt of the application for renunciation of Australian citizenship.

12. An officer of the Department wrote to the Applicant on 24 June 2019 seeking further information – T7 pp.  192 – 194. In particular the Applicant was requested to supply:

    (a)her original current Australian passport;

    (b)her original Australian citizenship certificate;

    (c)evidence of her foreign citizenship, which document, it was advised, could be obtained from the National Registration Department of Malaysia, Ministry of Home Affairs, Citizenship Division Malaysia.

13. Of significance for what later transpired, the following information was provided – T7 p. 194:

    “We DO NOT accept passports or birth certificates as evidence of foreign citizenship. An official document must be obtained from your national government.”

    (emphasis in the original)

14. The Applicant replied on 4 September 2019 (ST 1 pp. 248 – 252) and provided the Department with the following documentation – ST1 pp.  250 - 252:

    (a)coloured copy of her Malaysian passport;

    (b)coloured copy of her Malaysian Identification Card (MyKad);

    (c)black and white copy (certified) of her Malaysian passport;

    (d)black and white copy (certified) of her Malaysian Identification Card (MyKad).

15. In addition, the Applicant made the following assertion – ST1 p. 250:

    “The National Registration Department of Malaysia, Ministry of Home Affairs Citizenship Division MALAYSIA has maintained that Tuck Yeeng Chaang is a full status Malaysian citizen that supported by my ID card, Passport and Birth Certificate as well as my parents’ full status citizenship.”

16. On 10 September 2019 an officer of the Department emailed the Applicant acknowledging receipt of the above information and then made the following request – ST2 p. 253:

    “Can you please send via e-mail certified copy of a letter from the National Registration Department of Malaysia, Ministry of Home Affairs Citizenship Division stating that you have full status of Malaysian citizenship.”

17. The same day the Applicant replied as follows – ST2 p. 253:

    “I’ve been to the Malaysian Immigration Department requesting the Letter for Malaysia full status citizenship and was told by the Officers that the letter is for foreigners only. According to the Malaysian Immigration Officers, their records showed that I’m (Chaang Tuck Yeeng) is a full status Malaysian citizen therefore they can’t issue that letter to me.

    I didn’t renounce my Malaysian citizenship.”

18. Almost two months elapsed before the Department responded on 3 December 2019 – T8 pp. 196 – 197; T9 p 201. The Departmental Officer made the following request – T8 p. 196:

    “I have made a preliminary assessment of your application and note that the following information is required for processing of your application to proceed.

    Certified copy of evidence of foreign citizenship

    ·Please provide a certified copy of a document containing evidence of foreign citizenship. This document can be obtained from:

    oThe National Registration Department of Malaysia, Ministry of Home Affairs, Citizenship Division.

    Please note we do not accept passports, birth certificates or ID cards as evidence of foreign citizenship.  An official document must be obtained from your national government ex: letter from The National Registration Department of Malaysia, Ministry of Home Affairs, Citizenship Division, stating that you are currently a Malaysian citizen or Copy of your Malaysian citizenship certificate.

    Certified copies of original documents

    ·Your full birth certificate showing the details of your parents and your place of birth

    Return of current Australian passport

    ·Your current Australian passport should be returned to the Department to be destroyed. Please send this document to me at the below address.”

19. Following receipt of this letter, the Applicant wrote to the Department on 9 December 2019 in the following terms – T9 p. 200:

    “…I just arrived in Australia on 6/12/2019 on Tourist Visa after spending few months in Kuala Lumpur attending to mother’s cancer treatments.

    I understand that this application due date is on 16/12/2019. The time frame is very tight, may I ask for an extension please. I really like to spend some time with my husband in Australia and Christmas.

    At this very moment I’m making plans to obtain the Malaysian Citizenship Certificate. I’ll try the Malaysian Consulate Office in Canberra, otherwise I’ll need to obtain the Certificate from Malaysian, Kuala Lumpur.  If need arises, I’m happy to obtain the Certificate in Kuala Lumpur as soon as possible.

    Prior to hearing from you…I had returned Australian Citizenship Certificate and Australian Passport to her. Also, I’ve provided Australian Justice of Peace [certified] copy of documents. I’m happy to provide all emails for verifications.”

20. On 14 December 2019 the Applicant again emailed the Department with updated information – T9 pp. 199 – 200:

    “I’m writing to follow-up the progress of my renunciation application.

    My previous email to…explaining to her that I had approached the National Registration Department of Malaysia applying for the Malaysian Citizenship Certificate and was told by the Officers that I’m a full fledge Malaysian Citizen verified through the system, vetting all my documents, ie Malaysian Passport, MyKad and birth certificate. I was then advised that the Malaysian Citizenship Certificate is for foreigners applying to be Malaysian citizen.

    Though, I’ll try again to approach the National Registration Department of Malaysia to obtain the Citizenship Certificate.  Can I please seek your advice on explaining to the National Registration Department of Malaysia about my intention for the Malaysian Citizenship Certificate. Also please enlighten me the purpose of the Malaysian Citizenship Certificate in relevance to this application.

    Your advice and help would be much appreciated. Thank you.”

21. The Department did not reply to the Applicant until 22 January 2020 and granted her an extension of time to provide the requested information to 10 February 2020. Further, in response to the Applicant’s request for an explanation as to why the Department was seeking additional information, the following information was given – T9 p. 198:

    “Malaysian Citizenship Law: DUAL / MULTIPLE CITIZENSHIP LAW: NOT RECOGNIZED

    * VOLUNTARY:

    The process for the renunciation of citizenship requires applicants to complete an application, ‘Form K’, and to submit this to the nearest Malaysian Embassy or High Commission together with the following: original current Malaysian passport; original Malaysian identity card; original Malaysian birth certificate (which will be returned to the applicant once the renunciation process is completed); copy of the citizenship certificate obtained from another country; two passport photos.

    * INVOLUNTARY:

    According to an official of the High Commission of Malaysia in Ottawa, the government of Malaysia may revoke citizenship if it is satisfied that the citizen has been residing outside Malaysia for more than five years continuously without registering the intention to retain citizenship with a Malaysian consulate (Malaysia 23 Oct. 2007; Malaysia 31 Aug. 1957, Arts 23-27).

    Exceptions are made for those working overseas for the Malaysian government or for an international organization of which Malaysia is a member…

    Additional grounds for ‘involuntary loss’ of Malaysian citizenship include the following:

    -    voluntarily acquiring foreign citizenship…”

22. Information was also provided on documents required for evidencing Malaysian citizenship.

23. Further emails were exchanged, and, of importance, a Departmental officer emailed the Applicant on 28 January 2020 providing, inter alia, the following information – T11 p. 208:

    “In relation to evidence of Malaysian citizenship, according to Article 23(1) of the Federal Constitution, citizens above 21 years of age and of sound mind, should formally renounce their citizenship when they are about to gain citizenship of another country.  It is an individual’s personal responsibility to renounce their Malaysian citizenship after obtaining citizenship of another country.

    You will need to provide a document of restoration of Malaysian citizenship.”

24. The Applicant replied in an email of 29 January 2020 – T12 pp 220 – 221.

25. First, after seeking the specimen documents referred to in the Department’s correspondence of 22 January 2020, the Applicant sought clarification of the “bilateral immigration agreement between Australia and Malaysia High Commission in Canada (Ottawa).”

26. Second, after quoting the information set out above under the heading of “INVOLULNTARY” the Applicant stated:

    “I was pressured into taking Australian citizenship.”

27. Finally, the Applicant sought a further extension of time.

28. The Departmental reply of 5 February 2020 was as follows – T12 pp. 219 – 220:

    “In relation to specimen documents of Malaysian citizenship, I suggest to contact the relevant authorities, unfortunately I don’t have an example to hand.  There is not agreement between Australia and Malaysian High Commission in Canada.

    You will need to provide evidence of Malaysian citizenship within 7 days, or a decision will be make on your application with the information held on hand., you application was lodged on 19 June 2019, and the application needs to be finalise.”

    (the email is set out as it appears without highlighting spelling errors appearing therein)

29. The evidence suggests that by this time the Applicant was confused and her reply of 7 February 2020 highlights this state of affairs – T12 p. 219:

    “Can you please refer me to the relevant authorities as I lived in Australia for 15 years and I need assistance in this area.

    I’ve been going around the recommendations from your good self from document specimen to Singapore Immigration authority and Canada Ottawa Art 23-27. I’m really confused.

    The evidence of Citizenship has been sent to you previously. Always I’ve been waiting for your constructive reply for long period of time.

    I hope my Visa Application 155 will be processed soon and my application needs to be finalised.”

30. The Departmental reply of 13 February 2020 was as follows – T12 p. 217:

    “In regards to your enquiry, you will need to contact the National Registration Department of Malaysia in relation to evidence of foreign citizenship, Singapore Immigration authority, will not be able to assist you with this issue, as I mentioned on my previous e-mail, stamped with Immigration & Checkpoint Authority of Singapore seal, was a typing error on my part.

    Malaysian citizenship law does not allow dual citizenship, involuntary loss of Malaysian citizenship includes voluntarily acquiring foreign citizenship.”

31. The Applicant’s reply of the same date illustrates that by this time the Applicant was frustrated – T12 p. 216:

    “It seems that we are going round and round about my Application for Renunciation of Australian Citizenship.

    I thank you for your concern about my situation, just let me face the Malaysia authority myself.

    As you mentioned in your previous email, this case needs to be finalised.

    Please process the Australia VISA 155. Thank you.”

32. The final email before the reviewable decision was made was sent to the Applicant by the Department on 17 February 2020 and contained the following information – T12 p. 216:

    “In relation to your application to renounce Australian citizenship, as you are not able to provide evidence of foreign citizenship, a decision will be made based on the information available to the Department.”

    LEGISLATIVE OVERVIEW – SECTION 33

33. As previously noted, s 33 of the Act provides for the renunciation of Australian citizenship by application. The Minister must, by writing, approve or refuse to approve the renunciation application – s 33(2).

34. Subsection 33(3) provides that the Minister must approve a renunciation application if the Minister is satisfied:

    (a)the applicant 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 applicant was born, or is ordinarily resident, in a foreign country and is not entitled under the law of that country, to acquire nationality or citizenship of that country because the person is an Australian citizen.

35. The Minister must not approve a renunciation application unless the Minister is satisfied of the identity of the applicant – s 33(4).

36. The Minister must not approve a renunciation application if the Minister considers that it would not be in the interests of Australia to do so – s 33(6).

37. The Minister must not approve a renunciation application unless the Minister is satisfied that the applicant:

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

    (b)will, if the Minister approves the application, become a national or citizen of a foreign country immediately after the approval – s 33(7).

38. In Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21 (Yao) the Full Federal Court (White, Wigney and Perry JJ) made the following observations about this subsection ([45]/29):

    “…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’ 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 his citizenship does not become stateless, in line…with Australia’s obligations under the Convention on the Reduction of Statelessness…”

39. The Respondent provided the Tribunal a document entitled Respondent’s Statement of Facts, Issues and Contentions (RSFIC) which sets out, in summary form, the key facts and law. The Tribunal found this document to be very useful.

40. Relevantly, the Tribunal’s attention was drawn to the Australian Citizenship Policy (ACP) and the Australian Citizenship Instructions (ACI).

41. The Introduction to the ACI contains the following statement – T3 p. 27:

    “The role of the ACIs is to support the Australian Citizenship Act 2007. The ACIs must be used in conjunction with the Citizenship Policy document.”

42. In Minister for Home Affairs v G and Another (2019) 266 FCR 569 the Full Court (Murphy, Moshinsky and O’Callaghan JJ) made the following observations ([18]/574):

    “There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”

43. Their Honours subsequently provided the following guidance on the application of the ACP and the ACI – [58] – [62]/586 – 587:

    “58. It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-make to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created…

    59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker ‘free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision maker] will make in the circumstances of a given case’; Drake (No 2) at 641.

    60. However, as Brennan J sated in Drake (No 2) at 641, ‘[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies’….

    62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations…”

1. Turning now to the ACP, the following guidance is given regarding s 33(7) – T3 pp. 156 - 157:

   “Subsection 33(7) requires that a person not be left stateless. The term ‘immediately after’ 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.”

2. Next, the CPI also contains guidance as to the operation of s 33(7) – T3 p.  164:

   “Australia is a signatory to the United Nations Convention on the Reduction of Statelessness (the Statelessness Convention).  Consistent with our obligations, the Act prohibits any decision to approve a person renouncing their Australian citizenship if it will cause a person to become stateless.

   To ensure this prohibition does not apply, the person must provide official evidence of being a national or citizen of another country other than Australia for their application to be approved.

   Citizenship law in some countries provides for the automatic loss of citizenship when a person obtains another foreign citizenship.  Therefore, where the decision maker is aware that the applicant may have automatically lost their foreign citizenship, the document or covering letter from the relevant government agency must acknowledge that the agency is aware that the person referred to is also an Australian citizen.

   For example, if the person wishing to renounce their Australian citizenship is from Indonesia and obtained Australian citizenship, the document must indicate that the Indonesian authorities are aware of when and how the person obtained Australian citizenship, and that person has either reacquired Indonesian citizenship, or never lost their Indonesian citizenship.

   Other countries that have similar dual citizenship laws include (this list is not exhaustive):

   ·Singapore

   ·South Africa

   ·Japan

   ·India; and

   ·the People’s Republic of China

   Applicants from these countries must provide official evidence that they have re-obtained, or did not lose, their foreign citizenship for their renunciation application to proceed.

   Decision-makers should be aware that some applicants might try to avoid providing evidence that they have resumed or retained their other citizenship after a potential automatic loss, as they have not previously declared their acquisition of Australian citizenship to the relevant authorities.

   Although the applicant may be reluctant to provide evidence that they are a citizen of their former country of citizenship, this evidence must be provided for the application to proceed.

   If the full details concerning the person’s other citizenship are not provided and the decision-maker has reasonable grounds to suspect that the applicant does not have another current citizenship, the application to renounce Australian citizenship must not be approved on the basis that subsection 33(7) of the Act is not met.

   If the person cannot provide official evidence of having the citizenship of a country other than Australia then the application must be refused.”

3. In addition the CPI also contains some general guidance about evidence of foreign citizenship – T3 p. 162:

   “For applications made under section 33(3)(a) of the Act, a document setting out how and when a person became a citizen of that country is required as evidence of citizenship of a foreign country, to support the application.

   In most circumstances, a passport or birth certificate is not acceptable evidence of current citizenship.  However, there are limited circumstances where a passport may be sufficient evidence of citizenship.  This includes countries such as Britain and New Zealand who have never had legislation that ceases a person’s citizenship by Operation of Law on the acquisition of another citizenship. In these cases, a valid passport may be sufficient evidence of citizenship.

   Countries that do not allow dual nationality provide for automatic loss when the person acquires another citizenship.  Therefore, to support an application for renunciation of Australian citizenship, a recently issued document from the appropriate authority stating how and when the person reacquired their citizenship is required.

   Where a person is unable to provide satisfactory evidence that they are currently a national or citizen of a foreign country, the application may be refused.

   However, as section 33 of the Act provides a broad discretion for a person to make an application for renunciation, all relevant circumstances relating to the applicant must be considered. This applies to child or adult applicants.”

   MALAYSIAN LAW

4. The Federal Constitution of Malaysia (the Constitution) contains a number of provisions dealing with citizenship, including voluntary renunciation and deprivation of citizenship.

5. It is also tolerably clear that the Constitution provides a right for the Federal Government of Malaysia (the Federal Government) to deprive a Malaysian citizen of their citizenship if, inter alia, they acquire citizenship of another country.

6. First, Article (Art) 23 of the Constitution deals with renunciation of citizenship. Relevantly, Art 23(1) provides as follows:

   “(1) Any  citizen of or over the age of twenty-one years and of sound mind who is also or is about to become a citizen of another country may renounce his citizenship of the Federation by declaration registered by the Federal Government, and shall thereupon cease to be a citizen.”

7. Second, Art 24 deals with the deprivation of Malaysian citizenship on the acquisition or exercise of foreign citizenship. The relevant sub-articles are set out below:

   “(1) If the Federal Government is satisfied that any citizen has acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any country outside the Federation, the Federal Government may by order deprive that person of his citizenship.

   (2) If the Federal Government is satisfied that any citizen has voluntarily claimed and exercised in any country outside the Federation any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Federal Government may by order deprive that person of citizenship.”

   (emphasis added)

8. Finally, Art 27 of the Constitution set outs the procedure to be followed if the Federal Government has made an interim decision to deprive a Malaysian person of their citizenship. Art 27 is set out below:

   “(1) Before making an order under Article 24, 25 or 26, the Federal Government shall give to the person against whom the order is proposed to be made notice in writing informing him of the ground on which the order is proposed to be made and of his right to have the case referred to a committee of inquiry under this Article.

   (2) If any person to whom such notice is given applies to have the case referred as aforesaid the Federal Government shall, and in any other case the Federal Government may, refer the case to a committee of inquiry consisting of a chairman (being a person possessing judicial experience) and two other members appointed by that Government for the purpose.

   (3) In the case of any such reference, the committee shall hold an inquiry in such manner as the Federal Government may direct, and submit its report to that Government; and the Federal Government shall have regard to the report in determining whether to make the order.”

9. It will be noted that the Malaysian Constitution does not provide that a citizen of that country automatically loses their citizenship upon acquiring a foreign citizenship. Whilst the tenor of the Constitution is against persons holding dual citizenship, nonetheless it provides the Federal Government with a discretion whether to deprive a person of their citizenship. Indeed, Art 27 goes further and requires the Government to give a person the subject of a proposed deprivation order notice of the proposed action, the ground on which the order is proposed and the opportunity for the case to be referred to a committee of inquiry. As Art 27(2) explains, the committee of inquiry is presided by a chairman who must have had judicial experience. Further, Art 27(3) requires the Federal Government to have regard to the report when determining whether to make a deprivation of citizenship order.

10. The scheme of the Constitution, then, is carefully calibrated to ensure that the holding of dual citizenship does not result in the automatic loss of Malaysian citizenship. The Constitution, in fact, arrogates to the Federal Government a discretion whether to make a deprivation order, and mandates that before such an order is made, natural justice is accorded to the person holding dual citizenship. In short, the Constitution has been drafted to ensure that persons are not unfairly treated.

11. The Respondent draws the Tribunal’s attention to the fact that Malaysia is not a party to either the 1954 United Nations Convention relating to the Status of Stateless Persons or the 1961 United Nations Convention on the Reduction of Statelessness.

12. Whilst Malaysia is not a party to those Conventions, a reading of the Federal Constitution discloses a very distinct policy against the Federal Government taking action which would render a person stateless.  Reference can be made to Art 26B which, inter alia, deals with deprivation of citizenship under Arts 25, 26 and 26A.  These Articles deal with persons who have obtained Malaysian citizenship other than by birth.  Article 26B is set out below:

    “Article 26B. General provisions as to loss of citizenship.

    (1) Renunciation or deprivation of citizenship shall not discharge a person from liability in respect of anything done or omitted before he ceased to be a citizen.

    (2) No person shall be deprived of citizenship under Article 25, 26 or 26A unless the Federal Government is satisfied that it is not conducive to the public good the' he should continue to be a citizen; and no person shall be deprived of citizenship under Article 25, paragraph (b) of Clause (1) of Article 26, or Article 26A if the Federal Government is satisfied that as a result of the deprivation he would not be a citizen of any country.”

13. If the stated policy in the Federal Constitution is to not render a person stateless, when that person obtained citizenship other than by birth, it is open to assume that the same policy position would apply to persons who obtained their Malaysian citizenship by birth.

    THE REVIEWABLE DECISION

14. The delegate of the Minister made a number of findings with respect to the Applicant against the legislative requirements as mandated by s 33 of the Act – T2 pp. 16 – 20.

15. So far as is relevant the findings are set out below.  The delegate was:

    (a)satisfied that the Applicant was aged 18 or over – s 33(3)(a);

    (b)not satisfied that the Applicant was a citizen of a foreign country at the time the application was made;

    (c)satisfied as to the Applicant’s identity – s 33(4);

    (d)not satisfied that it would not be in Australia’s interests for the Applicant to renounce her citizenship – s33(6);

    (e)not satisfied that the Applicant was a citizen of a foreign country immediately before the decision not to approve the renunciation or would become a citizen of a foreign country immediately after renunciation of Australian citizenship – s 33(7).

    REVIEW ON THE PAPERS

16. Section 34J of the Administrative Appeals Tribunal Act 1975 provides for circumstances when a hearing may be dispensed with.

17. Where it appears to the Tribunal that the issues for determination can be adequately dealt with in the absence of the parties and the parties consent to the review being determined without a hearing, the Tribunal may review the decision by considering the material lodged without holding a hearing.

18. In this matter no issues of credit have been raised and the material provided to the Tribunal is adequate for a decision to be made. Further, the Applicant is living in Malaysia and made strong representations for the matter to be dealt with on the papers. In an email of 4 October 2020 the Applicant provided the following information:

    “For an unforeseeable reason, my circumstance has changed. I’m now living in a remote area and mobile phone calls are not reliable as the telephone reception signal is very poor.

    In such a case, I would prefer option 1 as suggested previously – to be heard on the papers.”

19. Difficulties were experienced in contacting the Applicant. Additionally, and, somewhat reluctantly, the Respondent agreed for the matter to be dealt with on the papers. In an email of 25 November 2020 the legal representative of the Respondent stated:

    “However, the Respondent consents to the matter being determined on the papers if the Tribunal considers that to be the more appropriate course for the determination of this application in all the circumstances, and given the Applicant’s strong preference.”

20. In the circumstances, and with the consent of the parties, the Tribunal formed the view that the preferable, timely and cost-effective approach would be for the matter to dealt with “on the papers”. In particular, the Tribunal is satisfied that such an approach would not prejudice the Applicant. 

21. The Tribunal records its appreciation for the cooperation of the legal representatives of the Minister, and also for the helpful material provided.  The legal representatives provided the Tribunal with all of the background legal material that was needed to reach a considered decision.

    CONSIDERATION

    Introduction

22. The Respondent contends that the Tribunal is prohibited by s 33(7) of the Act from approving the Applicant’s renunciation application, and broadly advances two arguments in support of that proposition.  Each will be dealt with in turn below.

23. Before dealing with each of the Respondent’s contentions, it is important to refer to the overarching policy instructions in the CPI dealing with renunciation of citizenship – T3 pp. 159 – 160:

    “Decision-makers are required to understand and apply the relevant law as set out in the Act.  Many of the requirements in the Act are expressed in objective terms and do not allow any discretion for decision-maker.  To the extent that the Act so allows for discretion, decision-makers should consider the Department of Home Affairs’ (the Department) approved policy and procedures where relevant and appropriate in decision-making.  This ensures that decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided.

    However, policy and procedures do not have the force of law.  When exercising powers or making decisions under legislation, delegates should give policy documents due weight, but should not apply policy inflexibly and should consider the merits of each individual case.  In order to give a fair, reasonable and lawful decision, it may be necessary to depart from the approved policy and procedures, depending on the facts of the particular case….”

24. This is, with respect, a carefully worded and correct summation of the law.

25. At the end of the day, and within the prism of the binding legislative regime, a decision-maker must apply the law in accordance with the evidence or materials presented. Non-legislative mandated principles, whether of an executive origin or otherwise, provide helpful guidance to advance sound decision-making, but are not a straight-jacket to prevent a decision-maker evaluating the material presented and arriving at the correct or preferable decision.

    Operation of Malaysian Law

26. The Respondent made the following submissions – RSFIC pp. 8 - 9 :

    “17. The Respondent notes firstly that, while the Applicant acquired Malaysian citizenship by birth, she acquired Australian citizenship by conferral on 26 January 2013.

    18. As detailed above, the Respondent notes that Malaysian law does not recognise or permit dual citizenship.  Relevantly, the Malaysian Constitution allows for a person to be deprived of their Malaysian citizenship by the Malaysian Government if the Malaysian Government is satisfied that a person has acquired citizenship of another country.  The right to deprive a person of Malaysian citizenship may be exercised at any time after the Malaysian Government becomes satisfied that foreign citizenship has been acquired.

    19. Having regard to the Applicant’s current status as an Australian citizen, the Respondent notes that:

    (a) it was open to the Malaysian Government to deprive the Applicant of her Malaysian citizenship at any time after the Applicant acquired her Australian citizenship; and

    (b) if the Malaysian Government has not deprived the Applicant of her Malaysian citizenship, it remains open to them to deprive the Applicant of her Malaysian citizenship upon being satisfied that she has acquired foreign citizenship.

    20. In these circumstances, the Respondent contends that official documentation from the Malaysian Government confirming the Applicant’s Malaysian citizenship status, specifically after being made aware of the Applicant’s Australian citizenship status must  be provided before the Tribunal can be satisfied that the prohibition under section 33(7) no longer applies (consistent with the CPI as detailed above).  This is because, in the absence of such official documentation, the Tribunal cannot be satisfied that the Malaysian Government has not already deprived the Applicant of her Malaysian citizenship, or otherwise will not deprive the Applicant of her Malaysian citizenship.”

    (emphasis in the original)

27. The Tribunal has some problems with this submission.

28. First, whilst it is correct to state that Malaysian law does not recognise or ordinarily permit dual citizenship, the Constitution does not provide for the automatic cessation of Malaysian citizenship if a Malaysian citizen acquires dual citizenship. The citizenship provisions in the Constitution are much more nuanced than that.

29. This situation can be compared with that before the Tribunal and the Federal Court in Yao. In that case a former citizen of the People’s Republic of China sought to renounce his Australian citizenship. On appeal, at first instance, Cowdroy J in Yao v Minister for Immigration and Citizenship (No 2) (2013) 61 AAR 68 (Yao (No 2)) set out the relevant law of China.

30. Art 3 of the Nationality Law of the People’s Republic of China states (per Yao (No 2) at [9]/70):

    “The People’s Republic of China does not recognise dual nationality for any Chinese national.”

31. Importantly, Art 9 then goes on to deal with the consequences of dual nationality (at [9]/70):

    “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.”

32. Further, in that case the applicant only held an expired, and not a current, Chinese passport – [16] – [17]/ 71 – 72.

33. In comparison the Constitution vests in the Federal Government a discretion to commence a process that may lead to the deprivation of citizenship. Relevantly Art 24(1) provides that the Federal Government “may” by order deprive a person of their citizenship. There is no compulsion for the Federal Government to commence such a process. The Constitution arrogates to the Federal Government a broad discretion. Whilst there is no material before the Tribunal on the background to these provisions, prima facie, they appear to have been drafted to ensure that in sensitive matters such as deprivation of citizenship which carries with it severe consequences, the Federal Government is given considerable leeway to weigh up all of the policy implications of such a draconian course of action.

34. Second, the Respondent contends that in the absence of official documentation, the Tribunal cannot be satisfied that the Applicant has not been deprived of her Malaysian citizenship.

35. The flaw with this submission is that it fails to address the requirements imposed on the Federal Government by Art 27 of the Constitution. As previously noted, before the Federal Government can make an order depriving a person of citizenship:

    (a)written notice is to be given to the affected person;

    (b)the affected person may apply to have the case referred to a committee of inquiry;

    (c)the Federal Government may refer the case to a committee of inquiry; and

    (d)the Federal Government shall have regard to any report of the committee in determining whether to make the order.

1. There is no evidence before the Tribunal that the Applicant has ever received written notice from the Malaysian Government in accordance with Art 27 of the Constitution. Prima facie, the fact that the Applicant holds a current passport and Identity Card and has not indicated that she has received notice under Art 27, strongly suggests that she is the holder of Malaysian citizenship.

2. Third, the Respondent invites the Tribunal to undertake the speculative exercise of making a decision based on whether the Malaysian Government may in the future deprive the Applicant of her Malaysian citizenship.

3. Two issues necessarily arise with respect to this submission.

4. The first is that Art 24 speaks of a citizen having “acquired” dual citizenship. This would suggest that Art 24 is intended to deal with a situation where a person is holding dual citizenship at a particular point in time, namely when the Federal Government determines, in principle, to make an order under Art 27. If the Applicant renounces her Australian citizenship, then, prima facie, the basis for proceeding under Art 27 would cease to exist. In short, on its face, Arts 24 and 27 are predicated on the assumption that action would be taken to deprive a Malaysian citizen of their Malaysian citizenship only if at that time the Malaysian citizen was also the citizen of another country.

5. This interpretation is buttressed by the wording of Art 26B which specifically prevents the Federal Government from depriving a person of their citizenship under Arts 25, 26 or 26A if it would result in them becoming stateless. Whilst Art 26B does not apply to Art 24, there is a clear policy preference in the Constitution to prevent the Federal Government from depriving a Malaysian citizen of their citizenship if it would result in that person becoming stateless.

6. Fourth, the Respondent makes submissions about the lack of official documentation from Malaysia about the Applicant’s citizenship status.  This is dealt with in more detail in the second submission below.  However, the Tribunal does not accept the proposition that particular documentation must be provided before the Tribunal reaches the state of satisfaction required by s 33(7).

7. Reference can be made to the following observations of the Full Court Federal Court in Yao at [49]/30:

   “Third, in the context of s 33(7) of the Act, the criteria 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…”

8. In each and every case it is incumbent on the decision-maker to determine if they have reached the particular state of satisfaction mandated by s 33(7). If the decision-maker has reached that state of satisfaction based on material adduced, then the duty imposed by s 33(7) has been met. It would be an error, then, to contend that a decision-maker can only reach that state of satisfaction based on an executive policy about the need for nominated documentation, which documentation is not mandated by the Act.  As indicated, this matter is further discussed below.

   Lack of official documentation

9. The Respondent made the following submissions – RSFIC p 9:

   “21. The Applicant has provided a copy of her Malaysian passport and her Malaysian identity card in support of her application for renunciation of her Australian citizenship. However, in accordance with the CPI (as extracted above) the Respondent contends that such documentation is insufficient evidence of her Malaysian citizenship in circumstances where these documents do not provide any confirmation as to:

   (a)whether the Malaysian Government is aware of the Applicant’s Australian citizenship status; and

   (b)whether the Malaysian Government has deprived, or will be exercising its powers to deprive, the Applicant of her Malaysian citizenship.

   22. The Respondent contends that official documentation from the Malaysian Government indicating that the Applicant has either re-acquired, or was never deprived of, her Malaysian citizenship in light of her acquisition of Australian citizenship is necessary before her application for renunciation of Australian citizenship may be approved.

   23. The Respondent contends that such official documentation from the Malaysian Government is necessary because, in the absence of such documentation, the Tribunal cannot be satisfied that the Applicant is, or will be, a citizen of Malaysia upon the approval of her application for renunciation of Australian citizenship.  In particular, the Tribunal cannot be satisfied that the Malaysian Government has not, or will not, deprive the Applicant of her Malaysian citizenship due to the Applicant’s acquisition of her Australian citizenship (as it is within their Constitutional powers to order the deprivation of Malaysian citizenship).

   24. Importantly, the Respondent contends that the absence of official documentation from the Malaysian Government confirming the above information means that the Tribunal cannot be satisfied that the Applicant will not become stateless in the event her application for renunciation of Australian citizenship is approved.  In those circumstances, a decision approving the renunciation of the Applicant’s Australian citizenship could result in a breach of Australia’s obligations under the 1961 UN Convention on the Reduction of Statelessness.  It is relevant to note that Malaysia is not a party to this convention and as such, it may not be subject to similar obligations preventing a person from becoming stateless.”

10. First, before dealing with the issue of official documentation, it is important to note that there is no suggestion before the Tribunal that the Applicant has attempted, directly or indirectly, to evade, ignore or refuse requests from the Department to obtain the additional information that was requested.  This is not a matter where the Applicant has refused to cooperate, and, in fact, the material discloses that she tried to the best of her endeavours to cooperate. As time went by her confusion, and perhaps desperation, became more apparent. This is, in fact, a quite sad matter with Kafkaesque elements.

11. Second, it is contrary to settled law to submit that the Tribunal when exercising its review role is restricted in reaching the requisite state of satisfaction by only relying on documentation nominated by the Respondent. It is apposite to refer back to the analysis of Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 – 641:

    “Of course, a policy must be consistent with the statute.  It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created.  A policy which contravenes these criteria would be inconsistent with the statue….Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister’s policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases.  The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules)…The Minister must decide each of the cases under ss 12 and 13 on its merits.  His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases.  A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister’s policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.”

12. His Honour went on to observe the lawfulness of adopting an executive policy (at 641) which “guides but does not control the making of decisions, a policy which is informative of the standards and values of which the Minister usually applies.”

13. At its heart, what Brennan J (as he then was) said, was that executive policy can be a proper guide to good and consistent decision-making, but when, in the case of a statute which gives a decision-maker broad discretionary power, such a policy cannot unduly fetter a decision-maker in reaching a  considered decision on the material before that person. Perhaps, to put it another way, executive policy can provide a constructive foundation to reaching a considered and legally sound decision, but it cannot fetter a decision-maker when properly evaluating the law and material before him or her.

14. Third, when properly read, the ACP acknowledges the requirement for a decision-maker to take account of the factual and legal matrix before them – T3 p 162:

    “However, as section 33 of the Act provides a broad discretion for a person to make an application for renunciation, all relevant circumstances relating to the applicant must be considered.”

15. Fourth, turning to the material before the Tribunal there is evidence of the Applicant holding a current Malaysian Passport which was issued on 16 February 2017 and is current until 16 February 2022 – T5 p. 187.

16. In addition, the Applicant also provided a copy of her Malaysian Identity Card (MyKad). MyKad is a compulsory identity card for Malaysian citizens aged 12 years and older. MyKad was introduced in 2001 and uses both photo identification and fingerprint biometric data.  Apart from being a validation tool and proof of citizenship other than a birth certificate, it also serves, for example, as a valid driver’s licence and ATM card and forms part of the Malaysian Government’s Multipurpose Card initiative.  The issue of this card is a powerful indication that the holder is a Malaysian citizen and exercises all rights and is subject to all the obligations of Malaysian citizenship.

17. There is nothing before the Tribunal which would suggest that the Applicant’s passport and MyKad are no longer valid and functional.

18. Fifth, the Tribunal does not accept the Respondent’s submission that without the additional official documentation required that the Tribunal cannot be satisfied that the Applicant is a citizen of Malaysia.  On the contrary, the Tribunal accepts that the Applicant is now a citizen of Malaysia.  The material before the Tribunal is to the following effect:

    (a)the Applicant holds a current Malaysian passport;

    (b)the Applicant holds a current Malaysian identity card (MyKad);

    (c)there is no material that suggests that the Federal Government has taken steps to deprive the Applicant of her Malaysian citizenship in accordance with Art 24 of the Constitution.

19. The Tribunal has had regard to the laws of Malaysia and Australia and the executive policy promulgated to guide decision-makers making decisions under the Act. Further, the Tribunal has paid particular regard to the documentation provided by the Applicant and how she has responded to the legitimate and proper requests of Departmental officers.  Nothing in this decision should be read as a criticism of the manner in which the Department has attempted to obtain from the Applicant the additional information that was sought. Whilst the Tribunal has reached a contrary conclusion to the reviewable decision, nonetheless the Tribunal acknowledges that the Departmental officers in this matter followed the relevant executive policy and attempted to apply it fairly and appropriately.

20. Clearly, in many instances information above and beyond the supply of a passport and an identity card may be required to meet the standards imposed by s 33(7). In each case the laws of the country in question must be considered, as are the circumstances of the applicant in question. Renunciation of citizenship is a serious issue, and the question of statelessness and Australia’s international obligations are paramount. Sympathy for an applicant in these circumstances must be subordinated to Australia’s international obligations – see, for example, Bachmann and Minister for Immigration and Multicultural Affairs [1999] AATA 465.

21. In this matter, however, the Tribunal for all of the reasons previously explained, has reached a state of satisfaction as mandated by s 33(7) of the Act that the Applicant’s application for renunciation of her Australian citizenship has been made out.

    DECISION

22. The decision under review is set aside and in substitution the Tribunal, pursuant to s 33(2) of the Act, approves the Applicant renouncing her Australian citizenship.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

...................................[SGD]....................................

Associate

Dated: 2 February 2021

Date of hearing:	Heard on the papers
Date final submissions received:	6 September 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Clayton Utz