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Submission to the National

Inquiry into Children in Immigration Detention from

Danielle Chifley


‘Statelessness’

and the Right to Nationality of Children Born into Immigration Detention

in Australia

By: Danielle Chifley [1]

1.

Introduction

2.

The Right to Nationality

3.

The Problem of ‘Statelessness’

4.

Relevant domestic law

5.

Problems associated with citizenship and detention

6.

Conclusion


1. Introduction

This submission will

consider the issue of ‘statelessness’ and its consequences

for the nationality of children in detention [2], focussing

specifically on those children who are born into immigration detention

in Australia. It will address the first term of reference [3]

for the Inquiry. The submission will first consider the right to nationality

at international law and the problem of ‘statelessness’, before

discussing Australia’s domestic law. The submission will demonstrate

that although the legislation appears to meet Australia’s international

obligations in respect of nationality and statelessness, this is arguably

not the case when applied to children in detention. It will also highlight

concerns about illegal non-citizens using childbirth to circumvent Australia’s

immigration laws.

2. The

Right to Nationality

Articles 7 and 8

of the Convention on the Rights of the Child (1989)[4]

(hereafter ‘CROC’) seek to protect the child’s legal

identity [5] and enshrine the right to nationality. In

particular, Article 7(1) protects the ‘right to acquire a nationality’

and Article 8(1) requires States Parties to ‘respect the right of

the child to preserve his or her identity, including nationality’.

This right has also been reflected in various other international instruments,

including Article 15(1) of the Universal Declaration of Human Rights

(1948)[6] , Principle 3 of the Declaration of

the Rights of the Child (1959) [7] and Article 24(3)

of the International Covenant on Civil and Political Rights [8]

(hereafter ‘ICCPR’).

‘Nationality’

may be defined at international law, as ‘a continuing legal relationship

between the sovereign state on the one hand and the citizen on the other’

[9]. Further, ‘[i]t is for each State to determine

under its own law who are its nationals’ [10]

and as a result, ‘[a]ny question as to whether a person possesses

the nationality of a particular State shall be determined in accordance

with the law of that State’ [11]. Various legal

implications attach to the concept of ‘nationality’, including

the diplomatic protection by the state of nationality while a person is

overseas, and the right to re-enter one’s own country .[12]

Generally at international

law, there are two ways that nationality is acquired, that is, by grant

of citizenship [13] or by birth [14].

Citizenship may be acquired at birth in different ways depending upon

competing principles, that of jus sanguinis where the child acquires

the nationality of the parents at birth, and the principle of jus

soli where nationality is conferred according to the state in the

territory of which the child is born. Article 7(2) of the CROC,

through the use of the phrase ‘in accordance with their national

law’, respects a State’s right to determine which principle

will be applied under their national law. However, problems may arise

for particular individuals seeking refugee status depending on the application

of these principles by different countries and may lead to the problem

of statelessness.

3. The

Problem of ‘Statelessness’

A person may be considered

‘stateless’ if they are ‘a person who is not considered

as a national by any state under the operation of its law’ [15].

Attempts to reduce the incidence of statelessness through international

regulation [16] are demonstrated primarily by the Convention

Relating to the Status of Stateless Persons (1954), which sought

to regulate those stateless persons who were not considered to be refugees

covered by the Refugee Convention (1951) and the Convention

on the Reduction of Statelessness (1961) [17],

which aimed to eliminate the international sources of statelessness. Australia

is a party to these two conventions.

Statelessness has

particular significance for people seeking refugee status. Hathaway argues:

Not all stateless

persons can secure refugee status. While citizenship guarantees legal

returnability to the country of nationality, many stateless persons

are not legally returnable to any country. It is therefore impossible

in practice for them to face the risk of persecution, and hence to qualify

as refugees .[18]

Statelessness is

often the result of deliberate state policy not to confer nationality

on children born to asylum seekers or refugees. One consequence of this

is that statelessness has particular implications for child asylum seekers,

as if a child has lost the protection of one State, but not gained the

protection of another, the child may be unable to exercise her or his

rights under the CROC. Thus, the issues of citizenship, nationality

and statelessness are inextricably linked and have particular implications

for children. It is now necessary to consider how Australia addresses

these issues.

4.

Relevant domestic law

Citizenship is granted

in Australia pursuant to Part III of the Australian Citizenship Act

1948 (hereafter ‘the Act’). In general, citizenship is granted,

pursuant to s 10(2) of the Act, to a child born in Australia if one parent

is an Australian citizen or permanent resident at the time of the child’s

birth; or if the child has been ordinarily resident in Australia, throughout

the period of 10 years commencing on the day on which the child was born.

Further, s 23D of the Act provides special provisions to enable the acquisition

of Australian citizenship by children born in Australia who do not acquire

any citizenship by birth and who would otherwise be stateless. Under s

23D(1), the Minister must register, on application, a person as an Australian

citizen if that person (a) was born in Australia; (b) is not and has never

been, a citizen of any country; and (c) is not, and has never been entitled

to acquire the citizenship of a foreign country.

Does Australia

meet its international obligations in respect of children born in detention?

Section 23D was last amended in 1986 and consideration of the Second Reading

Speech demonstrates the provision is intended to meet Australia’s

international obligations to prevent statelessness, particularly in relation

to ‘children born in Australia, who are not eligible to acquire

Australian citizenship at birth’, namely ‘the children of

illegal immigrants, visitors and others temporarily in Australia’

. [19] Prima facie, these provisions suggest that Australia

has met its international obligations in relation to the right to nationality

for children and the reduction of statelessness. However, when the legislation

is considered in respect of children born in immigration detention, the

complexity of the issue becomes apparent. Despite the clear intention

behind the legislation, it does not meet Australia’s international

obligations in practice. Various problems associated with the legislation

as applied to those in detention, will now be canvassed.

5.

Problems associated with citizenship and detention

There are three main

problems associated with the intersection of citizenship and detention.

First, neither ss 10 or 23D of the Act refer specifically to ‘detention’.

This means that in applying the provisions of the Act to children born

in detention is somewhat ambiguous. It is unlikely that applications for

citizenship could be made by children born in detention, pursuant to the

general provisions in s 10(2), as their parents, as unlawful non citizens,

are neither Australian citizens nor permanent residents. This means that

such children would have to wait for 10 years and be resident in Australia

before they could apply for citizenship.

It is clear that

the combined effect of ss10 and s23D is that children born in detention

who have, or are entitled to apply for, foreign citizenship, must wait

for a period of 10 years before they may apply for Australian citizenship.

This is what happened in Communication No. 930/2000: Australia

[20], discussed below. But how do these provisions apply

to statelessness? Although s 23D appears to prevent a child born in detention

from being stateless by allowing them to apply for citizenship, the requirement

in s 23D(1)(c) relating to foreign citizenship, means that the child’s

right to nationality depends not on the circumstances of the child, but

on the rights and status of the child’s parents and the domestic

citizenship legislation of the parent’s state of origin or former

habitual residence. This is unsatisfactory.

Further, there are

serious practical concerns relating to discharging the onus in s 23D(1)(c)

relating to foreign citizenship. Given that the child has to apply

to the Minister for citizenship, pursuant to s 23D, the parents would

be required to present evidence that the child is not entitled to any

other citizenship. This would require the parents to approach consular

officials to obtain appropriate documentation to this effect. It is unlikely

that a person who is in detention seeking Refugee Status would be able

to do this. Arguably, the result of this is that there would be few, if

any, applications to the Minister pursuant to s 23D of the Act. Thus,

children born in detention who are stateless, but due to practical reasons,

are unable to prove this for the purposes of s23D, may well remain stateless

until they reach the age of 10 years and are able to apply for Australian

citizenship under s 10. This goes against Australia’s international

obligations in respect of the right to nationality, the prevention of

statelessness and is against the ‘best interests of the child’

principle enshrined in the CROC .[21]

The second concern

in relation to this legislation is that it is unclear how it applies to

children of immigration detainees. In ‘Australia’s Response

to Issues Raised by the Committee on the Rights of the Child’

[22], the Australian Government was asked in question

15 to ‘provide further information on the measures being taken to

ascertain that stateless refugee children are granted their right to a

nationality’ . [23] In response, Australia briefly

mentioned s 23D but relied primarily on s 13(9) of the Act. Section 13(9)

provides a general discretion to the Minister to grant, on application,

Australian citizenship to a child under the age of 18. However, the response

to the Committee stated that:

as a matter of

policy: the consent of a responsible parent is usually required; children

are required to be permanent residents for grant of citizenship –

although the Minister, or his or her delegate, retains the discretion

to waive the permanent residence requirement in exceptional circumstances

… [such as if] significant hardship or disadvantage would result

if they were not granted Australian citizenship … [t]he discretionary

nature of this provision enables the decision maker to take into consideration

the circumstances of the child in each particular case (eg a stateless

child who arrived in Australia as an asylum seeker) and the relevant

Articles of the Convention, such as Article 3 and Article 8 .[24]

The problem with

these policy restrictions is that children are required to be permanent

residents for the grant of citizenship. Children born in detention before

their claim for asylum is determined are clearly not permanent residents.

Further, although the Minister retains the ability to waive the permanent

residence requirement in exceptional circumstances, this is a discretionary

power and would be weighed against opposing interests, such as the Government’s

interest in giving effect to its immigration laws. The concerns over ss

10, 23D and 13(9) of the Act, demonstrate that due to the practical problems

when the legislation is applied to those in detention, there may still

be periods during which time a child born in detention may have no nationality.

Finally, what is

most evident from the Second Reading Speech of the amendment to s23D of

the Act, is the tension between Australia’s the desire to meet its

international obligations in relation to statelessness and nationality

and the fear that the grant of citizenship automatically at birth would

‘be exploited’ and lead to the ‘Trojan horse’

style acquisition of residence by ‘visitors and illegal immigrants

who have children born here in order to seek to achieve residence in Australia’

.[25]

This fear of avoidance

of immigration control through childbirth was discussed in Chen Shi

Hai v The Minister for Immigration and Multicultural Affairs . [26]

That case involved a child born in detention who sought refugee status

independently of his parents, whose applications had been denied. Although

the child in this case was not stateless [27] , Kirby

J dismissed the issue by arguing:

It may be suggested

that by the simple expedient of procuring a pregnancy, the parents have

circumvented Australian migration laws, delaying their own deportation,

perhaps secured a right for themselves to stay in Australia …

That does not follow … [and] ought not to be exaggerated. Many

events must coincide to produce the circumstances of this case .[28]

More recently the

issue was raised by the Human Rights Committee (HRC) in Communication

No. 930/2000: Australia [29], where former Indonesian

nationals, now stateless, had remained unlawfully in Australia. They had

a thirteen year old son, who had acquired Australian citizenship by virtue

of his birth and subsequent residence for 10 years. The parents had been

refused Refugee status and complained their removal from Australia interfered

arbitrarily with their right to a family life pursuant to article 17 of

the ICCPR. Although the Committee did find the removal was arbitrary

in this case, four members dissented and were also critical of the Committee’s

statement that the State party must provide additional factors besides

simple enforcement of its immigration laws, to avoid such decisions being

characterised as arbitrary . [30] They argued:

The implications

of this interpretation, adopted by the Committee, are that if persons

who are unlawfully in a State party’s territory establish a family

and manage to escape detection for a long enough period they in effect

acquire a right to remain there … [which] allows potential immigrants

to “jump the queue” by remaining unlawfully in the State

party’s territory .[31]

6.

Conclusion

This submission

has demonstrated that although the Australian Citizenship Act 1948

appears to address Australia’s international obligations in respect

of the right to nationality and statelessness, this is not the case in

practice. When applied to children born in detention, the legislation

does not unequivocally ensure they have a nationality. Further, the operation

of the legislation has failed to resolve concerns that childbirth may

be used to circumvent migration laws, which was one of its principle aims.


1.

BA(Hon) (ANU); final year LLB(Hon) undergraduate at the ANU (2002).

2. In this submission, ‘detention’ is given

the same meaning as that adopted by the Inquiry in to Children in Immigration

Detention (‘the Inquiry’) as outlined in Background Paper

8: Deprivation of Liberty and Humane Detention, at 2.

3. “The provisions made by Australia to implement

its international human rights obligations regarding child asylum seekers,

including unaccompanied minors”.

4. Ratified in December 1990.

5. Other aspects of a child’s identity including

religious beliefs and cultural practices are protected by Articles 14

and 30 of the CROC respectively.

6. “Everyone has the right to a nationality”.

7. “The child shall be entitled from his birth

to … a nationality”.

8. “every child has the right to acquire a nationality”.

9. Re Lynch, British-Mexican Claims Commission,

cited in D. Hodgson, “The Child’s Right to a Legal Identity”

(1993) 7 Australian Journal of Family Law 121, 124.

10. Article 1, Hague Convention on Certain Questions

Relating to the Conflict of Nationality Law (1930) 179 League of

Nations Treaty Series 89.

11. Ibid, Article 2.

12. See Article 10(2) of the CROC and Article 12(4) of

the ICCPR.

13. Including naturalisation, or less frequently, by

marriage and legitimation.

14. This often includes by adoption or descent.

15. Article 1(1) of the Convention Relating to the

Status of Stateless Persons.

16. See generally Hodgson, above n 9, 128.

17. This convention did not enter into force until 1975.

It adopts the jus soli principle in Article 1(1) which states in part

that ‘[a] contracting state shall grant its nationality to a person

born in its territory who would otherwise be stateless’.

18. J. Hathaway, Law of Refugee Status, http://www.refugeecaselaw.org/Refugee/chapter2.asp?.

19. Australian Citizenship Amendment Bill 1986,

Second Reading Speech, 19 February 1986, Parliamentary Debates, House

of Representatives, at 868.

20. United Nations Human Rights Committee, CCPR/C/72/D/930/2000,

16 August 2001.

21. Article 3(1) of the CROC.

22. Questions raised by the Committee during consideration

of Australia’s first report under the CROC.

23. Australia’s Response to Issues Raised by

the Committee on the Rights of the Child, http://law.gov.au/publications/crocreports/responses/body2.html

24. Ibid.

25. Second Reading Speech, above n 19, at 868.

26. (2000) 170 ALR 553.

27. He was a national of the People’s Republic

of China pursuant to the Nationality Law 1980 (PRC), Art 5.

28. Chen Shi Hai (2000) 170 ALR 553 at [81].

29. United Nations Human Rights Committee, CCPR/C/72/D/930/2000,

16 August 2001.

30. Ibid, annex para 4.

31. Ibid, annex paras 4-5.

Last

Updated 9 January 2003.