Statelessness Working Paper Series No. 2017/06 • is not entitled to acquire the nationality or citizenship of a foreign country.19 Amendments introduced in 2008 removed the Minister’s discretion to refuse or approve stateless persons becoming Australian citizenships.20 Thus, “provided all these elements are satisfied there is no discretion for the Minister to refuse the child’s application for citizenship – that is, the child has a ‘right’ to conferral of citizenship under 21(8) of the Citizenship Act.”21 However, while stateless children born in Australia may have a right to citizenship, the government has sought to place a number of hurdles to deter and deny them citizenship. Under the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, children born in Australia or in an ‘Offshore Processing Country’ (Nauru or Papua New Guinea) whose parents arrived as asylum seekers by boat are now considered to be ‘transitory persons’ and ‘unauthorised maritime arrivals’ under the Migration Act 1958. These children are now subject to the same policies and restrictions which apply to asylum seekers who arrived by boat, including offshore processing and denial of access to permanent protection in Australia. This change applies retrospectively, meaning that children who were born before the Act came into effect will still be classified as ‘transitory persons’. However, as mentioned, as part of the negotiations to pass the legislation, the Australian Government agreed that a small number of children affected by this change, who would otherwise have been subject to offshore processing, will now have their claims processed in Australia. Yet other stateless children born in Australia who were not included in this deal (such as those born after the deal was reached) are not eligible to stay in Australia and will be returned to offshore processing. Even if stateless children are allowed to remain in Australia, they will only be granted a temporary visa, and will not have a pathway to citizenship. Every three or five years they will be required to reapply for refugee status. The only hope for these children is to be granted citizenship as stateless children born in Australia under s 21(8) of the Australian Citizenship Act 2007. However, it is not clear how many children have been granted citizenship by the Minister for Immigration and Border Protection under this provision. One reason for the Minister’s delay in granting citizenship is s 24(3) of the Citizenship Act which provides that the “Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.” As Foster, McAdam and Wadley note: …the discretionary nature of the Minister’s decision with regard to an applicant’s ‘identity’ under s 24(3), combined with the lack of guidance provided in the Citizenship Act or other relevant legislation or regulations as to the exercise of that discretion, has the potential to limit the protection provided to stateless children born in Australia.22 This identity requirement has been a significant hurdle for stateless people, who often lack identity documents and other required evidence. As Australia lacks a legislative mechanism for assessing statelessness, delays and denial of citizenship will continue to affect stateless children born in Australia.23 19 Australian Citizenship Act 2007 (Cth) s 21(8). Migration Legislation Amendment Act (No. 1) 2008 (Cth). 21 Nick Olle, ‘The Law and the Little Boy’ The Global Mail (11 December <http://static.theglobalmail.org/feature/the-law-and-the-little-boy/773/> accessed 22 January 2015. 22 Foster, McAdam and Wadley (n 1) 473. 23 Foster, McAdam and Wadley (n 1). 20 2013)