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.
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