Qing Quan Yao and Minister for Immigration and Citizenship
[2013] AATA 209
•10 April 2013
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/5429
General Administrative Division )
Re: Qing Quan Yao
Applicant
And: Minister for Immigration and Citizenship
RespondentCORRIGENDUM TO DECISION [2013] AATA 209
TRIBUNAL: Jill Toohey, Senior Member
DATE: 22 April 2013
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
Where at paragraph 22 the decision currently reads “The evidence that I have entered China after I got Australian Citizenship”, the decision shall now read “No evidence that I have entered China after I got Australian Citizenship”.
... ....[sgd]............................................................
Jill Toohey
Senior Member[2013] AATA 209
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5429
Re
Qing Quan Yao
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
Decision
Tribunal Senior Member J F Toohey
Date 10 April 2013 Date of written reasons 10 April 2013 Place Sydney The Tribunal affirms the decision under review.
............[sgd]............................................................
Senior Member J F Toohey
Catchwords
MIGRATION - citizenship – former citizen of Peoples Republic of China – Australian citizenship acquired by conferral – application to renounce Australian citizenship – whether Tribunal satisfied that applicant is a Chinese citizen – whether Tribunal satisfied that applicant would become a Chinese citizen immediately after the approval – no evidence of either – whether renunciation would render applicant stateless – decision under review affirmed
Legislation
Australian Citizenship Act 2007 s 33
Migration Act 1958 s 35
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Australian Citizenship Instructions 2009
REASONS FOR DECISION
Senior Member J F Toohey
10 April 2013
Background
Mr Qing Quan Yao was born in China in 1971. He was granted a Chinese passport in April 1998. He arrived in Australia in July 2000 and has lived here since.
In September 2002, Mr Yao was granted Australian citizenship. He now wishes to renounce his Australian citizenship. A delegate of the Minister for Immigration has refused his application. Mr Yao seeks review of that decision.
On 8 February 2013, the Tribunal wrote to Mr Yao advising that his application had been listed for hearing on 10 April 2012. He replied that he had “no intention” of attending the hearing and he wanted a decision made “based on all written submission” [sic].
In response, the Tribunal wrote to Mr Yao advising that he was not required to attend the hearing but the Minister’s representative had advised he wished to attend to answer any questions the Tribunal might have. The Tribunal advised Mr Yao that, if it had any questions of him, it would put them in writing and give him time to respond but, if not, it would hear what the Minister’s representative had to say and then make a decision.
I am satisfied that Mr Yao has had an opportunity to be heard. No questions with any bearing on the decision arose at the hearing. These written reasons reflect those given orally at the conclusion of the hearing.
The Australian Citizenship Act 2007
By s 33 of the Australian Citizenship Act 2007 (the Act), a person may make an application to the Minister to renounce his or her Australian citizenship. The Minister must, by writing, approve or refuse to approve such application: s 33(2)
An application to renounce citizenship must be on the relevant form approved by the Minister for that purpose. It must contain the information required by that form, and be accompanied by any other information or documents prescribed by the regulations: s 46. The approved form for applications for renunciation of Australian citizenship is Form 128: Application for renunciation of Australian citizenship.
Section 33(3) of the Act provides that the Minister must approve an application to renounce citizenship if 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.
Section 33(7) of the Act provides that the Minister must not approve such application unless 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.
If the Minister approves a person renouncing his or her Australian citizenship, the person ceases to be an Australian citizen at the time of the approval: s 33(8)
By s 35 of the Migration Act 1958, a person who is in Australia when they cease to be an Australian citizen – whether by renunciation or for some other reason – will automatically hold an ex-citizen visa which gives him or her permission to remain in Australia permanently, but this does not include the right to return if the person leaves.
The Australian Citizenship Instructions 2009
The Australian Citizenship Instructions 2009 (the Instructions) comprise “guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations: Introduction to The Instructions. The Instructions are government policy and should be allowed unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The Instructions provide that an application should be supported by a full birth certificate, any passport held by the person, official evidence of any name change, and:
·evidence that the applicant is a national or citizen of a foreign country at the time of application; or
·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.
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.
…
6Except 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.
Chinese nationality law
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.
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.
Mr Yao’s application
In his original application, Mr Yao stated his reason for wishing to renounce his Australian citizenship as follows:
Renew my Chinese passport and resume my Chinese citizenship of China to get a professional job in China.
In support of his application, Mr Yao provided certified copies of the following documents:
·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 license; and
·a bank statement
A delegate of the Minister returned Mr Yao’s application to him on 24 August 2012 with the following advice:
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 a 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.
Mr Yao responded as follows:
I think the application for announcing Australian Citizenship should be approved.
My reasons as following:
1Laws of the People's Republic of China can only be applied in China.
2No evidence that Chinese Law can be applied in Australia.
3Even DIAC officer thinks that I may lose Chinese Citizenship, it can only occur when I enter into China after I got Australian citizenship.
4The evidence that I have entered China after I got Australian Citizenship.
5Since 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.
6Furthermore, 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.
Consideration
Mr Yao’s understanding of his current status in China is not clear from his application. He appears to recognise that he is no longer a citizen while at the same time maintaining that he has not lost his citizenship. He appears to believe he needs to renounce his Australian citizenship in order to obtain a Chinese passport, and that his passport will then be proof of his Chinese citizenship.
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.
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.
For these reasons, I affirm the decision under review.
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.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ........[sgd]................................................................
Associate
Dated 10 April 2013
Date(s) of hearing 10 April 2013 Applicant In person Solicitors for the Respondent Clayton Utz
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