4.2.1 Stateless peoples’ legal journeys through Australian courts and tribunals is complex 4.2.2 ‘Proving’ statelessness in the absence of a statutory framework is challenging “There has to be a cut-off. We must say, “Okay, these people have suffered for 10-15 years. Enough is enough. Let’s stop their suffering here and give them their dignity and recognise their identity. Let them feel they belong.” Many of these people have partners they haven’t seen for 10-12 years. They haven’t seen their family for many years. They have siblings in different countries. It is just the right thing to do. Give them a visa so they can get on with their life.” Our research has highlighted that the lack of a definition of statelessness in Australian legislation (and absence of an SDP) does not mean that determinations about statelessness are not being made. On the contrary, our research revealed almost 800 tribunal decisions, and decisions of the Federal Circuit Court and Federal Court, concerning stateless people over a 10-year period, including: • 365 cases involving failed protection visa applications; — Amir • 265 cases involving visa cancellations, and; Fact-finding about a person’s statelessness status is undertaken from the moment a person arrives in Australia. A stateless person’s identity is questioned at every stage of their journey through the Australian immigration system, with increasingly demanding standards of proof from visa to citizenship applications. The level of engagement with the question of statelessness varies across decision-making bodies, most often assessed by the Tribunal, as does what constitutes and is accepted as evidence. An identity threshold is central to all areas of administrative decision-making, with the height of the threshold varying according to the rights attached to a visa or citizenship status: The standard for being satisfied of an applicant’s identity is significantly higher for citizenship than for visas. • 135 cases involving citizenship applications. This creates long-term insecurity for stateless people, with a risk that a visa might be revoked, a risk that persists for years even if protection is granted in Australia, including after individuals have become eligible and applied for Australian citizenship. Because there is no single authoritative point at which a person’s statelessness is determined (as would be provided by an SDP), stateless people describe repeated attempts to resolve their status, often over many years, with no clear pathway to permanency. If a stateless person’s visa application is refused or their visa is cancelled, they are at risk of being stranded in Australia and subjected to prolonged immigration detention. This dilemma was expressed poignantly in one recent tribunal decision: ‘The sheer absurdity of this case from its very beginnings is an embarrassment to the rule of law in Australia, whereby a stateless Bidoon was repeatedly required to prove the tragic nullity of the statelessness of himself and his fellow Bidoons, when there was no reliable evidence that he, personally, was ever anything other than a stateless Bidoon.70’ 38 Peter McMullin Centre on Statelessness | Understanding Statelessness in Australia Of course, these cases do not represent all determinations given that not all adverse determinations at the delegate stage are appealed, and of those that are appealed to the tribunal stage, not all decisions are made publicly available. An analysis of the identified cases revealed that in the absence of a legal framework for making a statelessness determination, the majority of Tribunal decisions we examined recorded Members’ inability to make a finding about the person’s statelessness status. Assessment of statelessness is often dealt with in the negative, with decision makers not being satisfied that an applicant is not a citizen of or would not be eligible for citizenship in their country of former habitual residence.71 In many instances, a decision-maker is unable to reach a requisite level of satisfaction that an applicant is stateless because of a lack of documentary evidence72, including evidence specific to the individual applicant73. While there is very little guidance for decision makers assessing statelessness in the context of visa applications, policy in relation to citizenship outlines three pillars (biometrics, documents, life story) as relevant to an assessment (as discussed further in section 2.2.1 of this Report). Nonetheless, there are very few instances where a consistent and credible life story has been able to overcome a lack of documentation. This points to an inherent challenge for a person making a claim to be stateless in that they are assumed to bear the burden of proving a negative—that no country in the world recognises them as a national - a challenge that is compounded in Australia by inconsistent evidentiary standards, limited access to reliable nationality information and a lack of knowledge and/or understanding of statelessness by decision makers.