The failure to correctly identify statelessness at the outset of somebody’s claim or arrival in Australia means it is often not recognised until the late stages of somebody’s legal proceedings. Australian legal practitioners describe how statelessness often only becomes apparent during litigation (including removal proceedings), revealing a reactive rather than proactive approach by government agencies. “At the very outset there’s no identification of stateless people… not identifying them as stateless follows them through the whole process. So they (the Department) don’t understand it…they clearly don’t understand the different types of statelessness or how it can manifest…and don’t look at the possible ramifications of being stateless.” The absence of a formal mechanism for identifying statelessness according to law means that many individuals are not identified as stateless until they are facing significant legal and humanitarian challenges. Practitioners also report similar challenges when representing stateless clients before the Administrative Review Tribunal, with Tribunal Members having varying understandings of and expertise regarding statelessness, which influences their level of engagement with the issue as it pertains to a claim for protection or citizenship. “Often, it only becomes apparent that someone is de facto stateless when litigation has been started, and when there’s a discovery process, or if we’re successful in a mandamus proceeding, for example, to compel the Department to do something to affect someone’s removal. Then, in the course of that, the Department might start taking action to remove someone to a country, and then it becomes apparent that there’s nowhere to remove that person to, or the government of that person’s nationality or former habitual residence doesn’t recognise them. And so, it becomes apparent that they’re in fact de facto stateless, but that only comes out through litigation.” — Australian Legal Practitioner “I think the Tribunal, it’s a real mixture, and obviously we know that from other sources that the Tribunal members have varying levels of legal expertise and experiences that come from all different backgrounds. So I think some of them engage better with statelessness than others. Some of them are really happy to be guided by us…others are very much like, ‘Well we don’t have evidence, we don’t have evidence’ (of statelessness) and that’s the whole point, you can’t have evidence! It’s a similar mindset to the Department (about) things needing to be proved, you need to be able to prove that you can’t get documents.” — Natalie Young, Australian Legal Practitioner, Victoria Legal Aid — Australian Legal Practitioner The lack of a definition of statelessness under law further undermines Australia’s ability to meet its obligations under the 1954 and 1961 Statelessness Conventions. A statutory definition and legislative mechanism for identifying and recognising statelessness would provide clarity, consistency, and a foundation for developing proactive legal and policy frameworks for adequately protecting and supporting stateless people in Australia. Participants also highlighted the importance of more resources being available to decision makers pertaining to statelessness. “There’s quite an ad hoc, and very messy, and very…mixed process of assessing people’s statelessness. There’s no one consistent process. And so it’s quite an arbitrary process of whether someone will be considered to be stateless, and therefore, given a visa, or if not returned back to another country, et cetera. So there needs to be consistency there, and I don’t think there is any consideration of that at the Department level at the moment.” — NGO Policy Officer Several legal practitioners interviewed highlighted how a failure by the Department to correctly identify someone as stateless upon their arrival in Australia complicated and hampered their ability to obtain protection throughout the entirety of their engagement with Australia’s migration framework, in most cases, for years. 34 Peter McMullin Centre on Statelessness | Understanding Statelessness in Australia 4.1.2 There is a lack of data about statelessness (often resulting in services approximating or attempting to triangulate statistics from unverified sources) Accurate data on the number of stateless people in Australia is essential for ensuring that there are adequate policies and procedures in place to meet their protection and support needs. Without this data, they are often overlooked and their needs are not visible. Several service providers interviewed for this research reported that although their organisations had been working with stateless people for years, identifying exact numbers was problematic, due to a failure by their data information systems to capture these statistics.