Law

1. Citizenship Law

a. Jus Sanguinis Provisions

The citizenship law of Australia primarily operates under a jus sanguinis framework, with certain variations based on the individual’s place of birth. The Australian Citizenship Act (2007) outlines that children born within Australia to at least one parent who is either an Australian citizen or a permanent resident automatically acquire citizenship. Children born in Australia gain citizenship if they reside in the country for 10 years following birth. Conversely, children born outside Australia to an Australian citizen parent are eligible for citizenship through application but are not automatically considered citizens. The presence of at least one Australian citizen parent is necessary for citizenship by application. Foundlings in Australia are granted citizenship automatically unless evidence is provided to demonstrate their nationality ties elsewhere. Australia’s legal definition of a stateless person is someone without nationality or citizenship from any country, with the burden of proof placed on the individual, differing from the definition set forth by the 1954 Stateless Convention.

b. Naturalized Citizenship

There is a simplified citizenship by conferral process available to stateless persons born in Australia explicitly, outlined in the Citizenship Act. In order to be eligible, the only requirement is that the stateless person is not and has never been entitled to citizenship of another country. Stateless persons not born in Australia may also be eligible for the non-simplified application for citizenship by conferral if they have been legally resident in Australia for four years or as a permanent resident for 12 months prior to the application. Despite this, stateless persons not born in Australia cannot access citizenship under the citizenship law due to their visa status. Since 2014, all refugees who arrived in Australia without a valid visa have been placed on temporary visas. Under the current law, persons on temporary visas are not entitled to apply for permanent residency (except for in very limited circumstances) or citizenship, providing almost no avenues for stateless refugees to gain citizenship.

In November 2023, the Australian High Court ruled that indefinite immigration detention is unlawful and unconstitutional in a landmark decision. As a result, the solicitor general stated that in cases where there is no possibility of people being returned or deported, the person will “be released immediately into the community”.

c. Dual Citizenship

Since April 2002, it has been permissible for Australian citizens to acquire citizenship of another country without losing their Australian citizenship. This is due to the now repealed section 17 of the Nationality and Citizenship Act (1948), which stipulated cessation of Australian citizenship upon grant of citizenship elsewhere.

Industry groups, including Amnesty International and the Australia Human Rights Commission, have called for reform of Australia law, including to:

abolish mandatory immigration detention in favor 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.

2. Treaty Ratification Status

Australia is one of only three states in the Asia-Pacific that is party to both Stateless Conventions, the Refugee Convention and all relevant human rights treaties. Australia made no relevant reservations on these ratified treaties. While party to all relevant treaties, none of the relevant treaties have been implemented directly into domestic law. For example, there is a disjunct between the definition of ‘stateless person’ in Australian citizenship law and the 1954 Statelessness Convention.

Australia has endeavoured to meet its international obligations following ratification of the conventions. For example, as a party to the 1961 Convention, Australia has an international obligation to prevent children from being born stateless. As such, section 21(8) of the Act provides that a person born in Australia who is not, has never been, and is not entitled to acquire citizenship or nationality of a foreign country (i.e. is stateless), is eligible for Australian citizenship. However, from a practical view, even when a person has a strong prima facie entitlement to Australian citizenship under section 21(8), they are likely to experience significant delays and administrative barriers throughout the application process, given that there are no fixed timeframes for the acquisition of citizenship even if all criteria are met, and it is in the absolute discretion of the Minister for Immigration, Citizenship and Multicultural Affairs. As such, while efforts are being made to incorporate the treaties in local law, there are still some gaps in the practical implementation.

Concluding observations by the Human Rights Committee included concerns regarding the revocation of citizenship, among other hastily adopted measures, in counter-terrorism efforts. In 2019, the CRC Committee’s concluding observations recommended that Australia consider revoking the 2015 amendment to the Citizenship Act that allows the loss of citizenship for children under 18 found to have acted inconsistently with their allegiance to Australia. The Committee also urged Australia to ensure free birth registration and birth certificates for all children, “in particular Aboriginal and Torres Strait Islander children, children living in remote areas and children in child protection services.” This was echoed in the 2018 concluding observations by the CEDAW Committee, which expressed concerns regarding birth registration for indigenous communities, which has resulted in limited access to services for indigenous women and girls. It was recommended that Australia remove late registration fees and strengthen mobile registration services. As a party to the CRC, Australia is bound to ensure that every birth in its territory is registered immediately.

The 2021 UPR submission for Australia stated that several states have recorded an increase in birth registration rates Aboriginal and Torres Strait Islanders. In the National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, it is stated that the Australian government takes seriously its responsibility to the Australian people to administer an orderly migration system, which is an essential facet of national sovereignty. A non-citizen who does not hold a valid visa is an unlawful citizen and must be detained under the [Migration Act (1958)]”. It also stated that detention in an immigration detention centre would be the last resort for the management of unlawful non-citizens. Despite the recommendations by UNHCR, Australia being a State party to the conventions on statelessness, still has not implemented a statelessness determination procedure, which it has also been recommended to do by UNHCR as a State party to the conventions on statelessness.

Ratification of International laws relating to statelessness by the countries the Pacific

Country	Stateless 1	Stateless 2	Refugee	ICCPR	ICESCR	ICERD	CRC	CEDAW
Australia

Signifies that the country is a party to the convention

Stateless 1 – 1954 Convention relating to the Status of Stateless Persons

Signifies that the country is not a party to the convention

Stateless 2 – 1961 Convention on the Reduction of Statelessness

Population

1. Reported Stateless Person

Australia has experienced an overall upward trend in the number of reported stateless individuals in the country. In 2022, Australia reported 8,314 stateless persons to UNHCR. This number has increased significantly over the past 5 years, with 52 stateless persons reported in 2017 and 132 in 2018. In 2020, Australia reported 5,221 reported stateless persons and 7,700 in 2021. Notably, it was one of 5 countries that did not submit data to UNHCR’s global trends report in 2019, providing no reasoning as to why data reporting was paused that year. No comprehensive mapping of statelessness or statelessness status determination procedure in Australia has been undertaken to date.

The availability of data regarding the number of stateless persons in Australia is contingent upon reports sourced from the Australian Government. These reports only include statistics on those held in detention centers, those involved in the application process or who have been issued an Onshore Humanitarian Visa, and those who self-identify as stateless. Furthermore, Permanent Residents and Permanent Protection Visa holders and those who arrived through the annual Special Humanitarian Program or the national Migration Program are excluded from these statistics. These gaps in data collection imply that the actual number of stateless individuals in Australia is considerably higher than the reported figures provided by the government.

Australia lacks a comprehensive legal procedure for identifying stateless persons. However, it is noted that Australia has pledged to ‘better identify stateless persons and assess their claims. UNHCR has recommended that parties to the 1954 Convention (including Australia) establish a statelessness determination procedure (SDP), which is a formal centralized domestic process for determining the status of stateless persons. Without an SDP, it is difficult to determine who is owed rights and entitlements under the 1954 Convention. By establishing an SDP, there is an opportunity to create a specific visa category for recognized stateless persons, providing for ‘permanent protection’ with the possibility of naturalization, which conforms with the 1954 Convention. An SDP would also seek to assist in compiling accurate and comprehensive data about the extent of statelessness in Australia.

Reported stateless persons to the UNHCR

Country	2019 (year start)	2020 (year end)	2021 (year end)	2022 (year end)
Australia	–	5221	7700	8314

Source: UNHCR, Global Trends: Forced Displacement from 2019-2022.

2. Persons at Risk of Statelessness

Indigenous and Aboriginal communities in Australia have historically faced marginalization, including a lack of access to social services and comparatively lower birth registration, contributing to an increased risk of statelessness within these populations. In response, Queensland implemented the Closing the Registration Gap Strategy Plan 2021-2024 to increase the birth registration rate for Aboriginal and Torres Strait Islander people with a goal to attain an 80% birth registration rate in the first 60 days after birth and 90% rate in the first year after birth by 2024. Barriers to birth registration which this Plan seeks to address include “lack of access to online and paper registration services in remote communities, financial difficulties caused by fees and penalties, confusion between registration and certification processes, language barriers and a shortage of culturally sensitive services, limited understanding of the significance of registration for children, and inconsistent information regarding the registration process”. Most recently, Queensland reported a 77.2% birth registration rate for Aboriginal and Torres Strait Islander people in 2022.

3. Stateless Refugees

All of the reported stateless persons in Australia are refugees, asylum seekers, or stateless persons from countries facing humanitarian conflicts held in immigration detention. UNHCR has noted that these figures are not representative of all stateless persons within Australia as the country lacks a statelessness status determination procedure.

In the mid-2010s, stateless individuals who applied for and were granted permanent residency in Australia predominantly hailed from countries like Iran and Iraq, with a large proportion of individuals being of Kurdish ethnicity. Australia has also seen refugee communities originating from the Democratic Republic of the Congo, Burma, Kuwait, Lebanon, and individuals of Arab, Rohingya, and Tibetan ethnicity. Refugee support services have seen an uptick in the proportion of stateless clients originating from the Middle East.

4. Undermined Nationalities

Australia does not have publicly available census data that captures persons classified as being “undetermined” or “unknown” nationality. Since 2015, Australian citizenship law has provided Ministerial powers to strip citizenship from dual nationals who had engaged in or were convicted of engaging in terrorist offences which demonstrated a ‘repudiation’ of their allegiance to Australia. These provisions operate extraterritorially, and frequently persons stripped of citizenship have been unaware of the occurrence. While this provision only applied to dual citizens, and contained protections against statelessness, there was at least one instance of citizenship deprivation in which the purported dual citizenship was denied by the second state and the legality of the act was questioned. Additionally, as noted below, in June 2022 the legality of some of the citizenship deprivation provisions was rejected by the High Court of Australia, the status of those stripped of Australian citizenship prior to this decision remains uncertain. At least twelve persons were stripped of their Australian citizenship under these provisions, however the total number is likely much higher.

Additionally, some Australians born in Papua New Guinea prior to its independence from Australia have had their Australian citizenship questioned and applications for renewal of passports denied in recent years after living decades of their life as Australian citizens. One such affected person successfully had their Australian citizenship recognised by the Federal Court of Australia in 2020, however, the implication of this decision on others in similar circumstances is unclear.

Causes of Statelessness

1. Lack of Legal Safeguards Against Childhood Statelessness

The citizenship law of Australia provides that stateless children born in Australia are eligible for Australian citizenship. However, this process is not automatic, and the definition of “statelessness” adopted in the citizenship law of Australia acts as a barrier for stateless children to access citizenship. Australian citizenship law requires children to prove that not only are they not nationals or citizens of any other country but also that they have never been and are not entitled to nationality or citizenship of another country.

2. Citizenship Stripping

Under the Australian Citizenship Amendment (Allegiance to Australia) Act (2015), provisions of the Citizenship Act regarding cessation of citizenship due to involvement in terrorist activities were replaced with provisions stipulating cessation if “you engage in various kinds of conduct inconsistent with allegiance to Australia”. It also includes a provision extending the scope of who this applies to, stating that anyone over the age of 14 renounces their citizenship “if the person acts inconsistently with their allegiance to Australia”. Section 10 of the Counter-Terrorism (Temporary Exclusion Orders) Act (2019) allows the Minister to make a Temporary Exclusion Order which may prevent an Australian citizen aged 14 years or older who is overseas from returning to Australia for up to two years at a time.

In June 2022, the High Court of Australia struck down the power previously held by the Minister for Home Affairs to strip dual nationals of Australian citizenship who had ‘repudiated their allegiance to Australia’ by undertaking suspected terrorist activities in Alexander v Minister for Home Affairs (2022). The new Albanese Government responded to the decision, stating that in order to “manage the risk posed to Australians by individuals offshore,” an individual may be prohibited from “returning to Australia for up to two years”. According to the High Court’s judgement, the applicant has previously been the subject of such an order. While the citizenship of the applicant in the case was reinstated, the position of those who were stripped of citizenship under the relevant provision prior to this decision remains uncertain. Some powers to strip citizenship from persons convicted of terrorist
offenses still stand.

In November 2023, another landmark case was resolved which is likely to trigger the introduction of new legislation to strip terrorists of citizenship. Convicted terrorist Abdul Nacer Benbrika, whose citizenship was cancelled by a former Minister, won a High Court battle allowing him to stay in the country. In the case, the High Court deemed the citizenship stripping provisions related to terrorism in the Citizenship Act unconstitutional as it gives judicial powers to the Commonwealth.

3. Administrative Barriers

In 2015, the Refugee Council of Australia was contacted by a number of refugee community members who raised their concerns about the length of time their citizenship application was taking. The Refugee Council of Australia compiled a report which found that in October 2015, refugees were waiting on average about 215 days to receive citizenship, with most of those affected being people who arrived by boat and had been found to be refugees onshore.

A further barrier to citizenship was the reintroduction of Temporary Protection Visas (TPV) and the introduction of Safe Haven Enterprise Visas (SHEV). Refugees who arrived in Australia by boat before July 2013 were only given the choice of a three-year TPV or a five-year SHEV.

In February 2023, the Albanese Government delivered on its election commitment to provide a permanent visa pathway for existing TPV and Safe Haven Enterprise Visa SHEV holders. This means that those who already have a TPV or SHEV will be able to apply for a permanent Resolution of Status (RoS) Visa. Current applications to renew expired TPVs or SHEVs will automatically be converted to RoS visa applications. Those still waiting for a decision will be granted a RoS Visa once their need for refugee protection is determined. To assist TPV and SHEV holders with the visa application process, the Albanese Government has committed $9.4 million over two years for visa application assistance through specialist legal service providers across Australia. It was reported that nearly 20,000 individuals would be able to apply for permanency under this scheme.

Despite the recent changes, administrative obstacles continue to persist for refugees and asylum seekers, particularly concerning documentation. Many individuals may lack proper documents or possess documents that Australia does not recognize. For instance, acquiring citizenship requires a full birth certificate as supporting evidence. While Australia has reported a 100% birth registration rate overall as of 2020, the rate for Aboriginal and Torres Strait Islander peoples was notably lower at 77.2% in the same year. Additionally, individuals facing persecution may struggle to obtain official documents due to the loss of such documents while fleeing their home country. Even if individuals manage to obtain documents, many of these documents are in regional languages that Australia does not accept, necessitating translation into English.

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