40 In accordance with UNHCR Guidelines, statelessness determination procedures should be ‘formalized in law’ and guarantee basic due process rights including an ‘effective right to appeal…[to] an independent body’.63 The burden of proof should be shared,64 the standard of proof should be to a ‘reasonable degree’,65 states may combine statelessness and refugee determination procedures, while maintaining confidentiality for asylum applications,66 everyone on the territory should have access to the procedure, regardless of whether or not they are lawfully in the state,67 the UNHCR should have a role in assisting in the development and implementation of procedures,68 and ‘age, gender and diversity considerations may require that some individuals are afforded additional procedural and evidentiary safeguards.69 41 Many of the above considerations are also flagged by Foster, McAdam and Wadley – specifically in relation to the Australian context. They also note that there are several clear reasons to support the necessity of a legislative statelessness determination procedure, as it would: 41.1 41.2 41.3 41.4 Ensure ‘fairness, transparency and clarity’;70 Assist in identifying ‘root causes’ and ‘trends’ of statelessness;71 Assist in accurately assessing ‘the size and profile of stateless persons in Australia’;72 and Reduce costs to government (e.g. ‘costs could be saved on unnecessary detention’).73 42 Australia should provide to stateless persons the same protection and legal status as is afforded to refugees and beneficiaries of complementary protection, and their families should be granted derivative status.74 43 Almost all stateless persons mentioned in paragraph 23 arrived in Australia by boat, or are the children of such persons and therefore also deemed ‘unauthorised maritime arrivals’75. Due to their arrival in Australia as unlawful non-citizens they are only eligible for a three-year Temporary Protection Visa (TPV) or a five-year Safe Haven Enterprise Visa (SHEV).76 A TPV provides no pathway to permanency and a SHEV may only lead to a permanent visa option if certain regional work or study criteria are met; even then the criteria for future visas will be effectively unattainable given the language and financial requirements.77 This means that effectively these persons will be stuck in three or five-year cycles of reapplying for temporary visas and repeatedly demonstrating their need for protection. 44 This was a change in the law introduced in 2014,78 moving away from the previous permanent protection visa. A permanent protection visa enlivened a person’s opportunity to later apply 63 UNHCR, Handbook on the Protection of Stateless Persons (n 59) 28 [71], 30 [76]. Ibid 34 [89]. 65 Ibid 34 [91]. 66 Ibid 27-28 [66]. 67 Ibid 28 [69]. 68 Ibid 42 [116]. 69 Ibid 42-43 [118]. 70 Foster, McAdam and Wadley, ‘The Protection of Stateless Persons in Australian Law: The Rationale for the Statelessness Determination Procedure’ (n 33) 446. 71 Ibid. 72 Ibid. 73 Ibid. 74 Ibid 453. 75 Para 35. 76 Migration Regulations 1994 (Cth), Schedule 2 – Subclass 785 & Subclass 790. 77 Migration Act 1958 (Cth) s35A. 78 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. 64 9