2016]
The Prevention and Reduction of Statelessness in Australia
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father, who was thought to be either an Indian or a Bangladeshi national.101
AP and the mother had previously applied for a protection visa, and although
unsuccessful, the Department had found AP to be stateless.102 While the
Tribunal was satisfied that AP could not acquire Nepalese citizenship, it was
not satisfied that he was not entitled to acquire Indian or Bangladeshi
citizenship.103 Part of the reasoning was that an alleged defect in acquiring
such citizenship (absence of birth registration with the consulate) could be
remedied at any time. Importantly ---- and contrary to the Department’s
submissions ---- the Tribunal accepted that someone who genuinely had no
information about his or her paternity could fall within the terms of s
21(8)(d) of the Citizenship Act, and further that Australian citizenship should
not be refused if there was ‘irrefutable evidence that the person had no
prospect of satisfying the procedural and administrative citizenship application requirements of the relevant foreign country.’104
The second decision related to a child born in Australia to parents of Cuban descent, who had lost their Cuban citizenship by residing for an extended
period outside that country.105 The Tribunal made a number of pertinent
observations in relation to s 21(8). First, a decision-maker is only required to
consider countries ‘whose citizenship a claimant is potentially entitled to
acquire’, not every country in the world.106 Secondly, the relevant temporal
aspect is whether the applicant is ‘currently entitled to acquire it’ (not whether
it may be possible at some future point in time).107 Thirdly, the focus is on the
entitlement to ‘acquire citizenship’, not simply to apply for it.108
In this respect, while someone ‘with an apparent entitlement to acquire the
citizenship of another country cannot claim to be not entitled to do so simply
because mandatory, but straightforward, evidentiary or procedural steps have
not been undertaken’,109 one must not wholly exclude practical considerations
101
Re AP and Minister for Immigration and Border Protection [2014] AATA 706 (29 September
2014) (‘Re AP’).
102
Ibid [2] (Senior Member Taylor).
103
Ibid [62].
104
Ibid [56].
105
KKRG and Minister for Immigration and Border Protection [2015] AATA 635 (27 August
2015) (‘KKRG’).
106
Ibid [19] (Deputy President Frost).
107
Ibid [24] (emphasis in original).
108
Ibid [25] (emphasis in original).
109
Ibid [23] (emphasis in original), following the approach in Re AP [2014] AATA 706 (29
September 2014).