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.
