Statelessness Working Paper Series No. 2017/06 1. Introduction At least 38 children have been born in Australia to stateless mothers seeking refugee protection in Australia’s asylum system.1 Despite having a right to citizenship under the 1961 Convention on the Reduction of Statelessness (‘1961 Convention’), Australia implemented a number of barriers to delay and deny citizenship to stateless children born in its territory. This paper outlines Australia’s asylum policies as they relate to stateless children and considers their rights under international law and Australian domestic law. 2. Australia’s Asylum System Stateless people often arrive in Australia seeking protection, either to seek refuge or for a range of other reasons. While not all stateless people are refugees, statelessness can be a root cause of forced displacement and many stateless groups face harassment, discrimination and breaches of their human rights, which would amount to violations of the 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’). The Rohingya people of Burma, the Faili Kurds of Iraq and Iran, and the Kuwaiti Bidoon and are all examples of groups which are both stateless and have sought protection in Australia under the Refugee Convention. 2 Stateless people are often compelled to travel to countries like Australia for protection, through unauthorised channels because they don’t have valid documentation. This is because they face significant and often insurmountable challenges in securing the necessary documentation to facilitate travel through authorised channels. The is also stated in the Handbook on Protection of Stateless Persons by the United Nations High Commissioner for Refugees (‘UNHCR’), that “statelessness, by its very nature, severely restricts access to basic identity and travel documents that nationals normally possess.”3 Australia severely penalises those who arrive without prior authorisation. It is the only country to impose mandatory indefinite detention for asylum seekers who arrive without a visa. From June 2013, those who arrive without a visa, usually by boat, are sent to ‘offshore processing’ in the island nations of Nauru and Manus Island, Papua New Guinea, while they await third-country resettlement.4 There have been numerous reports of sexual and physical abuse, inhuman and degrading treatment, selfharm and suicide taking place in these centres.5 Those who arrived in Australia by boat before July 2013 have remained for years in limbo, either in detention or in the community, while they await refugee status determination. Once they satisfy the refugee status requirements, they will be granted a three or five-year temporary visa, after which they are required to reapply for protection. There is no pathway to citizenship for those on these temporary visas. Further, there is no solution offered by Australia for those who are found to be stateless but are not considered refugees. This group faces indefinite detention in Australia, as they cannot be returned to another country.6 There have been a number of children born to stateless refugees and asylum seekers in Australia’s asylum system. A number of women who arrived in Australia by boat seeking protection were either 1 Michelle Foster, Jane McAdam and Davina Wadley, ‘Part Two: The Prevention and Reduction of Statelessness in Australia- an Ongoing Challenge’ (2017) 40 Melbourne University Law Review 456, 477. 2 Michelle Foster, Jane McAdam and Davina Wadley, ‘Part One: The Protection of Stateless Persons in Australian Law-the Rationale for a Statelessness Determination Procedure’ (2017) 40 Melbourne University Law Review 401, 419. 3 United Nations High Commissioner for Refugees (UNHCR), Handbook on Protection of Stateless Persons (2014) 40 <http://www.refworld.org/docid/53b676aa4.html>. 4 Asher Lazarus Hirsch, ‘The Borders Beyond the Border: Australia’s Extraterritorial Migration Controls’ (2017) 36 Refugee Survey Quarterly 48. 5 Madeline Gleeson, Offshore: Behind the Wire on Manus and Nauru (NewSouth Publishing 2016). 6 Al-Kateb v Godwin (2004) 219 CLR 562.