Deliberation on measures to prove identity

and ends statelessness of individuals.

What is statelessness?
The international legal definition of a
stateless person is “a person who is not
considered as a national by any State under
the operation of its law”. In simple terms, this
means that a stateless person does not have
the nationality of any country. Some people
are born stateless, but others become
stateless.
Stateless people are found in all regions of
the world. The majority of stateless people
were born in the countries in which they have
lived their entire lives.
Statelessness often has a severe and lifelong
impact on those it affects. The millions of
people around the world who are denied a
nationality often fight for the same basic
human rights that most of us take for
granted. Often they are excluded from cradle
to grave— being denied a legal identity when
they are born, access to education, health
care, marriage and job opportunities during
their lifetime and even the dignity of an
official burial and a death certificate when
they die. Many pass on statelessness to their
children, who then pass it on to the next
generation.

What are the causes of statelessness?

People usually acquire a nationality
automatically at birth, either through their
parents or the country in which they were
born. However, one or more of the following
factors can give rise to statelessness:
– A significant cause of statelessness is
discrimination on the basis of race, ethnicity,
religion, language or gender. Non-inclusion of
specific groups in the body of citizens for
discriminatory reasons is linked to protracted
and large-scale statelessness in the country of
birth. States can also deprive citizens of their
nationality through changes in law using
discriminatory criteria that leave whole
populations stateless. In fact, the majority of
the world’s known stateless populations
belong to minority groups. Gender
discrimination in nationality laws is a
significant cause of childhood statelessness.
The laws in 25 countries do not let women
pass on their nationality on an equal basis
with men. Consequently, children can be left
stateless when fathers are stateless,
unknown, missing or deceased.
– Gaps in nationality laws are a significant
determinant of statelessness. Every country
has laws which establish the circumstances
under which someone acquires nationality or
can have it withdrawn. If these laws are not
carefully drafted and correctly applied, some
people can be excluded and left stateless. An
example is children who are of unknown
parentage in a country where nationality is
acquired based on descent from a national.
Fortunately, most nationality laws recognize
them as nationals of the state in which they
are found.
– When people move from the countries
where they were born, conflict of nationality
laws can give rise to the risk of statelessness.
For example, a child born in a foreign country
can risk becoming stateless if that country
does not permit nationality based on birth
alone and if the country of origin does not
allow a parent to pass on nationality to
children born abroad.
– Another important reason is the emergence
of new states and changes in borders. In
many cases, specific groups can be left
without a nationality and, even where new
countries allow nationality for all, ethnic,
racial and religious minorities frequently have
trouble proving their link to the country. In
countries where nationality is only acquired
by descent from a national, statelessness will
be passed on to the next generation.
– Statelessness can also be caused by loss or
deprivation of nationality. In some countries,
citizens can lose their nationality simply from
having lived outside their country for a long
period of time.
– Individuals may be at risk of statelessness if
they cannot prove that they have links to a
State. Being undocumented is not the same
as being stateless. However, lack of birth
registration can put people at risk of
statelessness as a birth certificate provides
proof of where a person was born and
parentage – key information needed to
establish a nationality.

STATELESSNESS IN AUSTRALIA
Australia acceded to the 1954 and 1961
Statelessness Conventions in 1973 and thus
has obligations to
afford stateless people certain rights and
entitlements and implement measures to
prevent and reduce
statelessness. Australia is also party to the
International Covenant on Civil and Political
Rights, the
Convention on the Rights of the Child and the
International Convention on the Elimination
of All Forms of
Racial Discrimination, international treaties
which affirm the right of children to acquire a
nationality and
prohibit discrimination in the granting of
nationality. The Convention on the Rights of
the Child also
requires signatories to intervene in a situation
where a child is at risk of statelessness.
However, the extent to which these
obligations are reflected in Australia’s current
laws and policies varies.
While some of Australia’s obligations towards
stateless people are enshrined in legislation,
others have
not been incorporated into law and
mechanisms for resolving and preventing
statelessness and providing
protection and assistance to stateless people
remain inadequate. This section provides an
overview of
some of the key issues and challenges faced
by stateless people in Australia.

Stateless people in Australia

The primary means through which stateless
people gain residence in Australia is through
the Refugee
and Humanitarian Program. Between 2009-10
and 2013-14, 3,482 stateless people received
permanent residency in Australia, of whom
3,156 (91%) were granted visas under the
Refugee and
Humanitarian Program. More than half of the
stateless people granted permanent
residency under the
Refugee and Humanitarian Program were
recognised as refugees after arriving as
asylum seekers, while
the remainder were resettled from overseas
Lack of a statutory statelessness status
determination procedure
At the 2011 ministerial conference marking
the 60th anniversary of the 1951 Refugee
Convention and
the 50th anniversary of the 1961 Convention
on the Reduction of Statelessness, the
Australian
Government pledged to “better identify
stateless persons and assess their claims”.23
However, while the
Government subsequently introduced
guidelines to assist in identifying stateless
people, Australia
continues to lack a statutory statelessness
status determination process.
A significant number of stateless people in
Australia also have claims for protection
under the Refugee
Convention or on complementary grounds
and can thus seek to have their status
assessed through
Australia’s statutory refugee status
determination process, to which clear visa
outcomes are attached.
For stateless people who do not have
protection claims, or are determined by the
Australian Government
not to be in need of protection, there is no
statutory process for resolving their status.
Furthermore, there
is no clear visa outcome for people who are
judged to be stateless on the basis of
Government guidelines.
The lack of a statutory statelessness status
determination process both hinders the
identification of
stateless people and hampers efforts to
resolve their situation. Generally, people who
are found not to
be in need of Australia’s protection and are
not eligible for any other kind of substantive
visa are expected
to return to their country of origin. Stateless
people, however, typically cannot return to
their country of

22 Figures derived from the Department of

Immigration and Border Protection’s
Settlement Reporting Facility,
http://www.immi.gov.au/settlement/srf 23
UNHCR 2012, p. 49
0 200 400 600 800 1,000
Kurdish
Other/Unkown
Arab (NFD)
Rohingya (Burma)
Tibetan
African (NFD)
Congo
Iraqi
Bembe
Bedoon
Palestinian
Other African
Hazara (Afghan)
Luba/Kasai
Tutsi
Nepalese
Hutu
Iranian
Tamil
Persian/Farsi
Kuwaiti
2009/10 2010/11 2011/12 2012/13 2013/14
15
origin even if they wish to do so. Unable to
return home or travel elsewhere due to their
statelessness,
and ineligible for residency in Australia, they
may find themselves effectively stranded.
There are currently very few options available
to stateless people in this situation. As with
other visa
applicants, stateless people can request the
Minister for Immigration and Border
Protection to personally
intervene in their case and grant them a
substantive visa. However, the Minister’s
personal intervention
powers are discretionary, non-compellable,
non-delegable and non-reviewable. The
Minister is under no
obligation even to consider a request for
intervention, let alone act on a request.
Decisions made by the
Minister regarding whether or not to consider
requests or grant visas are not subject to
review or appeal.
As such, the Ministerial intervention process
does not offer an effective or procedurally fair
status
resolution process for stateless people.
Stateless people who cannot secure residency
in Australia or return to their country of origin
may
alternatively seek residency in a third country.
This option relies largely on diplomatic
negotiations and
the willingness of third countries to accept
stateless people as long-term residents. Such
efforts, however,
have typically had a very low rate of success.
As the Australian Human Rights Commission
has found, the
“pursuit of third country residency options
has historically left people who are stateless
in situations of
protracted immigration detention.”24 If both
the Ministerial intervention and third country
residency
options fail, stateless people have no other
means of resolving their status or securing
long-term
residency in Australia or elsewhere.

Immigration detention
Australia’s inadequate mechanisms for
resolving the status of stateless people places
this group at
particularly high risk of prolonged indefinite
immigration detention. Under Australia’s
Migration Act 1958,
non-citizens who do not have a valid visa
must be detained until they are either
granted a visa or leave
the country. There is no time limit on
immigration detention under Australian law,
with the result that
people can be held in detention for very long
periods of time (theoretically for the course of
their natural
lives).