The right to a nationality is a fundamental human right, enshrined in Article 15 of the Universal Declaration of Human Rights. Having a nationality also facilitates the enjoyment of many other human rights, often being a prerequisite for taking part in political life of your country (including through standing for or voting in elections), diplomatic protection, travelling both within and between countries and accessing essential services such as health care and education.
Those who do not have a nationality are referred to as stateless people. Stateless people are generally unable to exercise the rights associated with citizenship or face serious difficulties in doing so. They are typically excluded from political processes, cannot travel freely and lack access to publicly-funded services such as education, health care and social security. They often face difficulty in obtaining identity documents and securing employment and may be detained due to their lack of status. Stateless people are also vulnerable to exploitation and abuse due to their lack of status.
This Refugee Council of Australia (RCOA) report focuses on the situation of stateless people in Australia. It provides background information on the situation of stateless people worldwide an overview of issues and challenges faced by stateless people in Australia. It also includes a series of recommendations for improving protection for stateless people in Australia and ensuring that our international obligations towards stateless people are effectively upheld.
RCOA recommends that the Australian Government introduce a statelessness status determination procedure, in line with the proposed guidelines in the Appendix to this report.
RCOA recommends that people who are found not to be in need of Australia’s protection but are determined to be stateless be eligible for the grant of a permanent Protection Visa.
RCOA recommends that:
- Australia’s statelessness status determination procedure allow for consideration of both de jure and de facto statelessness.
- Both de jure and de facto stateless people be entitled to eligible for the grant of a permanent Protection Visa.
Should Recommendation 3(b) not be implemented, RCOA recommends that the Australian Government grant a temporary substantive visa to people who are determined to be de facto stateless, with similar rights and entitlements to permanent Protection Visa holders and a clear pathway to permanent residency if the person’s statelessness remains unresolved.
RCOA recommends that the Australian Government introduce legislation to:
- Abolish mandatory immigration detention in favour of a discretionary system under which detention is applied as a last resort and only when strictly necessary;
- Restrict immigration detention to a maximum of 30 days without judicial review and six months overall;
- Establish a system of judicial review of immigration detention longer than 30 days, with subsequent reviews carried out at regular intervals if continued detention is deemed appropriate;
- Codify clear criteria for lawful detention and minimum standards of treatment for people subject to immigration detention, in line with UNHCR’s Detention Guidelines; and
- Prohibit the detention of children in closed immigration detention facilities, with community-based support arrangements to be used in place of closed detention.
RCOA recommends that the Australian Government expeditiously grant citizenship to all children born in Australia who would otherwise be stateless, as required by the Australian Citizenship Act 2007.
RCOA recommends that the Australian Government:
- Abolish Temporary Protection Visas and Safe Haven Enterprise Visas and instead grant permanent Protection Visas to all people who are found to be in need of Australia’s protection or are found to be stateless.
- If recommendation 7(a) is not implemented, that a clear pathway to permanent residency be established for Temporary Protection Visa holders.
RCOA recommends that the Australian Parliament not pass the Australian Citizenship and Other Legislation Amendment Bill 2014 and the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015.
RCOA recommends that the Australian Government consider waiving the requirement to complete the Australian Citizenship Test for refugee and humanitarian entrants and stateless people.