2022 Statelessness & Citizenship Review 4(1) This jurisprudence reflects the notion of a former habitual residence being employed in relatively broad and flexible terms, in recognition of the intensely fact-specific inquiry that is called for and the host of potentially relevant factors to consider.76 There are further examples of the inherent fluidity of the notion, where courts have found that the fact of a designated country of former habitual residence being a colony or entity (not an independent sovereign state) will not preclude a definitive finding of that territory as a country of former habitual residence. It is sufficient if ‘the territory has the attributes of a state, such as defined borders, systems of law and a permanent identifiable community’. 77 Further, it has also been established that there is no requirement that a claimant entered into the territory of concern legally 78 or that the claimant demonstrate an ability to legally or factually return to the designated country in order for it to qualify as a country of former habitual residence.79 When a question about returnability arises on the facts, decision-makers have assessed on that claimant’s hypothesised presence in the country of reference. 80 As identified by James Hathaway and Michelle Foster, in this designating exercise, ‘no one factor should be treated as essential’ and the returnability criterion, for instance, ‘should be understood as relevant to, rather than determinative of, the existence of a country of former habitual residence’. 81 Notwithstanding the primary indicium that a claimant has at least resided in the territory concerned, there is some support from academics and refugee determination bodies for the view that in very particular circumstances, a state may be properly understood as constituting a country of former habitual residence when that person has not in fact resided there. Foster and Lambert argue that: [w]hile this is difficult to reconcile with the ordinary meaning of ‘residence’, there is a convincing purposive argument that where an applicant has a right to return and reside in a state, the risk of being persecuted must be assessed in relation to that state in order to avoid a violation of the principle of non-refoulement. This is particularly the case in relation to stateless children born abroad who may be returned to their parents’ country of former habitual residence even though they have never resided there.82 This nuanced and sensitive approach towards stateless children born abroad has been pursued in Australia by certain courts and refugee status determination bodies, where stateless children born there have been deemed to have the country of nationality or former habitual residence of their parent(s). In the case of SZEOH v Minister for Immigration,83 the Federal Magistrates Court of Australia considered whether an applicant child, who was born in Australia and had never left that territory, could be conceived of as having the mother’s country of nationality or former habitual residence in Singapore. It held that the Australian Administrative Appeals Tribunal (‘AAT’) had not erred in finding that Singapore 76 77 78 79 80 81 82 83 Hathaway and Foster (n 23) 70 citing Refugee Appeal No 72635/01 (n 66) 26–27 [116]. Foster and Lambert (n 17) 133 quoting Mary Crock and Laurie Berg, Immigration Refugees and Forced Migration: Law, Policy and Practice in Australia (Federation Press 2011) 298– 99. Elastal v Canada (Minister of Citizenship and Immigration) [1999] FCJ NO 328, 8 [19]. AL (Myanmar) [2018] NZIPT 801255 (11 August 2018) 25–26 [97]–[99]. GD (China) (n 48) 8–10 [38]–[42]; YL v Secretary of State for the Home Department [2003] UKIAT 00016, 15 [62]; SZTEOH v Minister for Immigration [2015] FCCA 4 [10]. Hathaway and Foster (n 23) 70. Foster and Lambert (n 17) 136–37. SZEOH v Minister for Immigration [2005] FMCA 1178. 18