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There is no basis in the 1954 Convention for setting time limits for individuals to claim protection as a stateless person.260 Further, like refugee and
complementary protection claims, stateless status determinations should be
subject to independent merits and judicial review.261 Other procedural
safeguards should include access to information (in various languages) about
eligibility criteria, the procedure and possible outcomes; the right to an
interview with a decision-maker; assistance with preparing and presenting
applications, including access to legal assistance and interpreters/translators;
the right to confidentiality and data protection; and written reasons for
decisions, communicated within a reasonable time.262 Individuals should not
be removed prior to a final determination (including appeals).263
C Evidentiary Requirements
In light of the challenges many individuals face in demonstrating that they
meet the ‘stateless person’ definition, including access to evidence and
documentation, applicants should not bear the sole responsibility for establishing the relevant facts.264 Rather, this burden should be shared by the
applicant and the decision-making authority.265 That authority must identify
which authorities in the relevant third state are competent to establish
nationality,266 and the weight to be attached to the response or lack of
response from the state in question.267 For instance, a state may not feel any
accountability for indicating that a person does not have a bond of nationality,
and a refusal to acknowledge that someone is a national might itself be
evidence that the person is not.268 Decision-makers must consider not only
the nationality law of a given state, but also the practice in that state with
260
UNHCR, Handbook on Protection of Stateless Persons, above n 20, 28 [70]. France, Georgia,
Hungary, Italy, Latvia, Mexico, Moldova, the Philippines, Slovakia, Turkey and the United
Kingdom do not set time limits for individuals to claim protection as stateless individuals:
Gyulai, ‘ENS Guidelines’, above n 136, 14.
261
UNHCR, Handbook on Protection of Stateless Persons, above n 20, 29–30 [73]–[74], 30 [76].
262
Ibid 27–8 [66], 28–9 [71], 29–30 [73]–[75]; Batchelor, ‘The 1954 Convention’, above n 23, 42.
263
UNHCR, Handbook on Protection of Stateless Persons, above n 20, 29 [72].
264
Ibid 34–6 [87]–[94]; UNHCR, Geneva Conclusions, above n 136, 4 [13]. The Australian
government recognised this in Onshore Protection Consultative Group, ‘Statelessness: Extract of Issues Paper’, above n 14, cited in McAdam, ‘Position Paper’, above n 238, 6 [26].
265
See, eg, the practice in the Philippines: Gyulai, ‘ENS Guidelines’, above n 136, 26.
266
UNHCR, Prato Conclusions, above n 136, 3 [13].
267
UNHCR, Handbook on Protection of Stateless Persons, above n 20, 36 [98], 33 [86].
268
Batchelor, ‘The 1954 Convention’, above n 23, 37.