4.2.4 Consequences of findings about statelessness A finding that a person is stateless carries distinct consequences across Australian administrative decision-making. Its most substantial and positive legal effect arises in citizenship applications under s 21(8) of the Citizenship Act, where a finding of statelessness for parents of children born in Australia entitles children to be granted Australian citizenship where they would otherwise be stateless (discussed further at 2.2.1). Understanding the impact of statelessness also plays a critical role in identity-related visa refusals and cancellations (discussed at 4.2.3 above), where recognising how statelessness affects a person’s ability to establish identity has been central to overturning decisions— particularly in visa cancellations under s 101(b) of the Migration Act for providing incorrect information (including mistaken or false claims of being stateless), and in citizenship refusals where the decisionmaker is not satisfied of an applicant’s identity (s 24(3)) or good character due to a possible false identity claim (s 21(2)(h)). However, a finding of statelessness does not provide access to protection or a permanent visa under Australian law, as statelessness alone is not sufficient to meet the statutory criteria for refugee or complementary protection. Our case law review highlighted that stateless people are ‘falling through the gaps’ most obviously where a finding of statelessness is made, but the applicant is nonetheless ineligible for protection.98 This results in a significant gap between Australia’s domestic framework and the rights owed to stateless people under international law. 4.2.5 Access to justice issues and barriers to legal assistance Participants described significant barriers for stateless people in accessing legal assistance in general, including expert and free advice tailored to stateless individuals and communities. Barriers to education commonly imposed on stateless people as children mean that many may struggle with filling in administrative forms that may seem straightforward to others due to a lack of (or poor) computer and/or language literacy. The consequences of inadvertently citing inconsistent identity information are extremely serious, for reasons outlined in 4.2.1 and 4.2.2 above, and include the very real possibility that a person’s visa may be cancelled and/or citizenship refused. As this Report has further detailed (see 3.2.5 and 4.3.6), stateless people are at increased risk of immigration detention, and on average are detained for periods longer than non-stateless people. As such, stateless people in Australia are in particular need of legal support. Although there are a small number of Australian legal practitioners— primarily those working within the refugee and migration sectors— who have experience assisting stateless people, research indicated that statelessness is not well understood generally with the Australian legal profession. Practitioners recommended the development and provision of targeted professional development training on statelessness to lawyers and decision makers (including Department officials and members of the Tribunal and judiciary) to address this. “Obviously, that’s the first step… to make sure that the legal representative is also trained or at least well versed in statelessness issues”. — Ahmad Sawan, Australian Legal Practitioner, Refugee Advice Casework Service Trauma and psychological distress was observed by lawyers to be a significant barrier to access to justice for stateless people. “Most (stateless clients) have PTSD, severe depression, anxiety. A lot find it—I guess, linked to the depression and anxiety—really difficult to engage in basic tasks, to stay on top of deadlines, to be able to engage in legal appointments or health appointments or basically anything else that’s going on in their life. It’s quite debilitating.” — Michaela Rhode, Australian Legal Practitioner, Asylum Seeker Resource Centre 4.2.6 The Migration Act as a ‘further tool of family violence:’ The system places stateless victims of family violence at increased risk of harm Research indicates that stateless women face additional legal barriers under Australian law. Legal practitioners reported cases in which stateless mothers had been abandoned by the Australian father of their child; in many cases, there was a history of family violence. In situations where the father is listed on the child’s birth certificate but had abandoned the child, the mother faced significant barriers obtaining Australian citizenship for the child (by virtue of descent from the father) due to the government imposing extremely high burdens of proof. “The children are particularly impacted in terms of if the father isn’t stateless and the stateless mother wants to assert the citizenship of the child through the father, but there’s family violence, it’s really hard for them to do so because there’s either apprehended violence orders in place, it’s unsafe for them to reach out to their partner or ex-partner, etc. So effectively children are being rendered stateless because fathers are perpetrating family violence and then absconding or denying any responsibility for the child. And so, then the child is left stateless if their mother is also stateless or if she’s from one of the several countries that don’t allow women to pass down citizenship.” — Michaela Rhode, Australian Legal Practitioner, Asylum Seeker Resource Centre Understanding Statelessness in Australia | Peter McMullin Centre on Statelessness 43