2016]
The Protection of Stateless Persons in Australian Law
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tion of orphans and abandoned children.157 Late birth registration is frequently prohibitively expensive for vulnerable groups, and in any case inaccessible
given the documentation required.158
For these reasons, the UNHCR’s Handbook on Protection of Stateless Persons advises that ‘[s]tatelessness determination authorities need to take this
[inability to obtain documentary evidence] into account, where appropriate
giving sympathetic consideration to testimonial explanations regarding the
absence of certain kinds of evidence.’159
It also explains why it is not uncommon for stateless persons to acquire
false documentation and use multiple identities as a survival mechanism and
a pathway for seeking asylum.160 This is why the passage in 2015 of the
Migration Amendment (Protection and Other Measures) Act 2015 (Cth) was of
particular concern. The Act amended s 91W of the Migration Act and added a
new s 91WA. The effect was that even if an asylum seeker were found to be in
need of protection pursuant to s 36 of the Migration Act:
(1) The Minister must refuse to grant a protection visa to an applicant for a
protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant’s
identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for
the destruction or disposal of the documentary evidence; and
157
UNICEF, ‘Birth Registration: Right from the Start’ (2002) 9 Innocenti Digest 1, 11.
158
UNICEF, A Passport to Protection: A Guide to Birth Registration Programming (2013) 25,
60, 68.
159
UNHCR, Handbook on Protection of Stateless Persons, above n 20, 34 [90].
160
See generally Equal Rights Trust, above n 13.