The lack of guidance and coherence in relation to statelessness determination is not just a problem for stateless people in Australia. It also presents a challenge for first instance decision makers and administrative tribunals which are required to undertake fact-finding in a legislative void. Notwithstanding a lack of clarity, administrative decision makers are nonetheless required to make lawful decisions. As such, judicial review of protection visa refusals in the Federal Court are clear that jurisdictional error can be made out in cases involving statelessness. This includes, for example, where it is established that decision makers have: i. failed to consider a statelessness claim83; ii. made errors in determining nationality or misapplying nationality laws84; iii. made errors in the treatment of evidence or legal reasoning in relation to an assessment of statelessness,85 and; 4. failed to afford procedural fairness.86 This again speaks to the urgency and compelling nature of the case for legislative reform. 4.2.3 A ‘relentless’ reassessment of a stateless person’s identity with real and detrimental impacts As the above suggests, perhaps the most challenging and arguably dysfunctional aspect of the current administrative system is the fact that there is no single point of determination of statelessness, meaning that stateless people are required to repeatedly prove their statelessness throughout their engagement with the DHA and/or legal process. This is particularly the case where people have been found to be stateless by DHA during the refugee protection visa process, but are then required to prove their stateless status anew when they come to apply for Australian citizenship. “Obviously, they (stateless applicants for citizenship) understand the futility of it, or they’re like, “We already did that, so why are you asking me again?” So, that’s frustrating for them…but I imagine it makes them feel like the legitimacy of who they are is not accepted. “Prove to us again that you have no nationality,” but it’s like trying to prove something that’s it’s an absence of something – like there’s nothing – the only way you can prove that is by showing that you don’t have any documents. So…it’s this cyclical thing of, “I don’t have anything to show you. All I can show is that I speak this language, and I’m from this country, and I’ve already done that, and you’ve given me a permanent visa. And now, I’m trying to get citizenship, and you’re making me do it again.” It’s just a waste of resources.” — Natalie Young, Australian Legal Practitioner, Victoria Legal Aid Consistent with the above, several legal practitioners provided examples of cases where clients were found to be members of a stateless group, but upon resubmitting an application or engaging in a different legal process, have had subsequent decision makers identify perceived inconsistencies in identity information provided or make a credibility finding which results in the previous finding of statelessness being overturned. The constant monitoring of a stateless person’s identity—in a manner described by one Australian legal practitioner interviewed as ‘relentless’—whereby their statelessness can be re-examined or questioned again and again, has real and detrimental impacts on people. “Imagine how disheartening it is to have a Rohingya identity and that is your identity, that’s what you grew up with, that’s the language you speak, that’s the culture you know, that’s all your parents raised you on, and I remember when we told them he was like “Well, how can you just say I’m Bangladeshi out of nothing?” And he said “I’ve never lived in Bangladesh. I don’t know what Bangladeshi culture’s like. I don’t know how to speak Bangladeshi, so how can you just”—it’s almost like a stripping away of someone’s life.” — Ahmad Sawan, Australian Legal Practitioner, Refugee Advice Casework Service Case study: “(My client) came by boat, he’s been detained all up about eight years, we’ve been through the AAT…and then we’ve finally got it all sorted after 13 years, his visa is ready to be granted, when I received an email from (the Department). I thought it was regarding his medical checks but it was a delegate investigating his identity. After having been detained for eight years, been through multiple different refugee status determination processes; I think about three different types where they’ve considered his identity, where the latest Tribunal decision summarised the entire background and made a finding that he was stateless, now the Department are asking, ‘You may not be who you say you are, can you please provide comments on why you don’t have identity documents?’ When it says in the decision that the Tribunal accepts why he doesn’t have identity documents— because he’s stateless. So that’s what I’m dealing with at the moment, and what I’m worried about, (because) if we’re granted the visa, then they might move to cancel it later.” — Australian Legal Practitioner Understanding Statelessness in Australia | Peter McMullin Centre on Statelessness 41