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Submission to National Inquiry into Children in Immigration Detention from
Mr Anais d'Arville
Is a child's right to a nationality effectively upheld in the case of children born into mandatory detention in Australia?
The situation in other countries
Does Australia's legislation live up to its international obligations?
Does Australia's practice live up to its international obligations?
In addition to nationality rights - the right to birth registration
Introduction
This submission examines a child's right to a nationality and Australia's protection of that right. Of special interest is the position of children born in mandatory detention to parents who are both unlawful non-citizens. [1] The submission addresses the first term of reference for the inquiry, by exploring Australia's obligations in this area and discussing whether such obligations are implemented by legislation and the general practice in Australia.
The right to a nationality
1. The importance of the right
Nationality, while taken for granted by Australian citizens is an important aspect of an individual's identity. Nationality is "the essential condition for securing to the individual the protection of his rights [under international law]" [2]. Without nationality, an individual is without domestic rights [3], but is also without international protection. [4]
2. Sources of the right to a nationality
Article 15(1) of the Universal Declaration of Human rights (UDHR) states that "everyone has the right to a nationality". The International Covenant on Civil and Political Rights (ICCPR) is more guarded, containing only a guarantee that a child shall have the right to acquire a nationality. [5] The right to acquire and to preserve one's nationality are both in the Convention on the Rights of the Child (CRoC). [6]
Australia is also party to the Convention relating to the Status of Stateless Persons (hereinafter: Status Convention) and the Convention on Reduction of Statelessness (hereinafter: Reduction Convention). The former is concerned with improving the status of stateless persons (by guaranteeing the same treatment as according by that state to its nationals in certain matters ). [7] This paper concerns the right to a nationality, rather than the treatment of non-citizens. The Status Convention is less useful in this respect. The Reduction Convention is concerned with eliminating the sources of statelessness. To do this, it adopts the jus soli principle - that a state shall grant its nationality to a person born in its territory. [8]
The situation in Australia
Nationality in Australia is governed by the Citizenship Act 1948 (Cwth). The Migration legislation is also important, as it governs the status of the child's parents. It therefore illustrates the practical circumstances of the child, as what happens to the child's parents will be a large factor in the child's effective nationality.
1. The Citizenship Act 1948
Under section 10, anyone born in Australia after the 20th of August 1986 [9], shall only become an Australian citizen if one of their parents was an Australian citizen or permanent resident, or after being 'ordinarily resident' in Australia for 10 years.
Another avenue for a child born in Australia to non-citizen parents is section 23D. Where a person was born in Australia, has never been citizen of any country and has never been entitled to acquire the citizenship of another country the Minister must grant citizenship to that person. [10] However this is limited by subsection 1A which deems a person who has had "reasonable prospects … of acquiring citizenship" of another country if he/she were to apply as being entitled to acquire that citizenship (under (s23D(1)(c)). [11]
Lastly, subject to conditions, [12] the minister has a discretion to grant citizenship to a person under the age of 18 years. [13]
2. The Migration Act 1958, the Migration (1993) Regulations
Under section 10, a child born in Australia to unlawful non-citizens, is taken to have entered Australia at birth. [14] The child is taken to be an unlawful non-citizen from birth. [15] Under section 78, if one or both of the child's parents holds a visa, the child is taken to have been granted the same kind and class of visa at birth. [16]
If the child stays in Australia for 10 years, he/she will be an Australian citizen and may apply to sponsor his/her parents under Australia's 'family stream' of migration. [17] Although priority is given to other family categories [18] (e.g. dependent children, spouses) parents are eligible to be considered. Parent applications are processed with highest priority to parents whose only child is in Australia, then those with a majority of children and so on. [19]
Apart from staying in Australia and satisfying the citizenship test, the child may apply for a protection visa on the ground that Australia has protection obligations under the Convention Relating to the Status of Refugees [20] (hereinafter: Refugee Convention). Even if the parents are unsuccessful, an application may be submitted in the child's name. It would often be the case that if it were safe for the parents to return, it would also be safe for the child. This is not always the case though, as in Chen Shi Hai v Minister for Immigration and Multicultural Affairs. [21] There a child born while his parents were in detention brought his own claim for a protection visa. The reason for the child's persecution was that he was a 'black child', born in contravention of China's one child policy. If returned to China, the child would be subject to serious disadvantage regarding education, food and health care. [22] The court held that this could amount to persecution by reason of his status as a 'black child'.[23] The child was entitled to refugee status despite the fact that his parents had earlier been denied this status. [24]
Even if this avenue were successful, the child would be left in Australia alone once his/her parents had been deported. While there is provision for a child to receive his/her parents' visa, [25] there is no 'reverse' provision granting the parents' the same visa if the child's application is successful.
The situation in other countries
1. The United States of America
While the USA is not a party to either of the statelessness conventions,[26] it is party to the ICCPR and the CRoC.
According to section 1401(a), in title 8 of the US model code, [27] birth in the USA gives an individual citizenship. However, like Australia, this does not give that person's parents the same rights. Under section 1153, Title 8 of the Code, visas are available under the 'family stream' for children, [28] spouses [29] or siblings [30] but not for parents. This means the child (who is a US citizen) might stay in America while his/her parents are deported.
2. Canada
Canada is a party to the Reduction Convention as well as the ICCPR and CRoC.
Canada grants citizenship on the basis of birth.[31] There is then provision under the Immigration legislation for the child (who is granted citizenship) to sponsor his/her parent to allow the parents to stay in Canada,[32] or for the parents to apply for a visa without sponsorship. [33]
3. The United Kingdom
The UK is a party to both statelessness conventions as well as the ICCPR and CRoC.
Citizenship is granted by birth under section 2(1)(a) of the Immigration Act 1971 and section 4 of the British Nationality Act 1948. Parents could then become citizens after 7 years (through naturalisation ).
4. Germany
Germany is a party to both statelessness conventions as well as the ICCPR and CRoC.
Children born in Germany to foreign parents will become German citizens. [35] The interesting aspect of Germany's nationality law is that it recognises the practicalities of a refugee situation. While discouraging multiple nationality, the law recognises that the process of being released from the previous country's nationality may be unacceptable to the refugee. [36] The recognition of the reality of the situation of a refugee is an aspect that is not present in the relevant Australian legislation.
Does Australia's legislation live up to its international obligations?
The provisions of the Citizenship Act appear to carry out the obligations of the Reduction Convention, through the operation of section 23D granting nationality to those individuals who genuinely are and have always been stateless. However where a child's parents are refugees, fleeing from their country because of a genuine fear of persecution, section 23D(1A) might make the operation of the section unreasonable. Technically, the country they are fleeing from might give the parents citizenship. For most countries this would give the child at least a "reasonable prospect of acquiring citizenship". [37] However the whole point of the Refugee Convention and protection visas under the Migration Act is that it would be unreasonable to return to the country of persecution. The fact that the child might technically have reasonable prospects of gaining citizenship in the country of persecution offers little comfort. In practical terms, the child is left stateless.
Quite apart from this unreasonableness, the restrictiveness of Australia's interpretation of the right is evident when compared to other countries. All the countries considered above adopt a more generous approach to the grant of citizenship than Australia. More importantly, all the countries considered that are party to the Reduction Convention grant citizenship on the basis of birth without the restrictive conditions found in Australia's legislation. Australia's approach illustrates the "notorious reluctance of states to relinquish sovereignty over conditions of nationality." [38]
The situation of effective statelessness might be addressed by a ministerial grant of citizenship under section 13(9)(a) of the Citizenship Act. However an important premise of 'rights' is that they should not be granted according to the will of the government concerned. It is a right to nationality, not a privilege at the behest of the Minister.
The same objections apply to the right to acquire a nationality (contained in the ICCPR and CRoC), however perhaps with less strength. It is a weaker right since it only grants "a right to be considered eligible for the acquisition of a nationality upon satisfaction of domestic law requirements". [39] This gives states a greater margin of appreciation in implementing the right, so that it is more difficult to argue that Australia's legislation does not uphold the right to acquire a nationality.
Does Australia's practice live up to its international obligations?
The Department of Immigration phone service was accessed. All the recorded prompts were followed in order to obtain information about citizenship, especially with regards to children. The only relevant information available, was that such children can be included on their parent's form for Australian citizenship. There was no information about the child's own right to citizenship. There was also no opportunity [40] to speak to somebody from the department rather than a recording. The media liaison for the department was also contacted, who stated that all the relevant information is contained on the department's website.
The website of the department of Immigration was consulted. Following the links regarding Australian citizenship, the title "How do I know if I'm an Australian citizen?" is reached. Under this title there is no mention of the possibility of becoming an Australian citizen by birth, without an Australian parent.
Australasian correctional management (the company that runs the detention centres) was also contacted by phone. The representative stated that she was not allowed to comment on any questions about the running of Australia's detention centres.
Even though there is some provision for citizenship by birth (upholding the Reduction Convention obligation), for many the lack of information available about this right makes it unknown and inaccessible.
In addition to nationality rights - the right to birth registration
An important part of the right to an identity is the right to be registered at birth and to have a name. This right is found in Article 24(2) of the ICCPR as well as article 7(1) of CRoC. This "may sound naïve to Australian ears, but in some countries there is no such obligation." [41]
In Australia, the registration of births is governed by states. In most states and territories, births must be registered within 2 months. The exceptions are New South Wales (1 month) and the Australian Capital Territory (28 days). [42] This two month maximum appears to be a not unreasonable implementation of the obligation that births be registered immediately after birth as required by the ICCPR. [43]
According to the department of Immigration website, "expectant mothers have access to necessary ante-natal and post-natal services". [44] Births are registered with the appropriate state. [45] It appears that the right to be registered at birth and have a name is upheld.
Conclusion
The legislation governing
nationality in Australia does appear to uphold the minimum obligations
relating to the right to a nationality. Although meeting the minimum obligations,
the legislation may still operate unreasonably. Comparing the legislation
of countries that are subject to the same obligations shows that Australia's
laws represent a restrictive interpretation of the right to a nationality.
There are also considerable concerns regarding the practical effect of
the legislation. The fact that even where the child does obtain Australian
citizenship, this has little effect on the parents' status, effectively
meaning the child will be deported along with the parents. Another concern
is the lack of information freely available about the right of a stateless
child born in Australia to acquire citizenship. Lastly, the related right
to be registered at birth and to have a name appears to be upheld.
1. To
adopt the language of the Migration Act 1958 (Cwth)
2. Oppenheim, International Law Volume 1 (8th edition),
1955, p69
3. Since he/she is ineligible for social security for
example
4. To which state could the international community direct
its attention if individual rights are violated?
5. International Covenant on Civil and Political Rights,
Article 24(3)
6. Convention on the Rights of the Child, Articles 7(1)
and 8(1) respectively
7. Such as Religion (Article 4) and Education (Article
22)
8. where that person would otherwise be stateless Convention
on the Reduction of Statelessness, Article 1(1)
9. The date of commencement of the Australian Citizenship
Amendment Act 1986
10. Australian Citizenship Act 1948, s23D(1)
11. Australian Citizenship Act 1948 s23D(1A)
12. Relating to the criminal record of the individual,
section 13(11)
13. Citizenship Act, Section 13(9)(a)
14. Migration Act 1958, s10
15. As a result of s14 and the definition of non-citizen
in s5, Migration Act 1958
16. Migration Act 1958 s78
17. See Department of Immigration fact sheet 37 - "Processing
Priorities" available at http://www.immi.gov.au/facts/37processing.htm
18. See Department of Immigration fact sheet 37 - "Processing
Priorities" available at http://www.immi.gov.au/facts/37processing.htm
19. This is the 'balance of family test'. See Migration
(1993) Regulations section 2.1
20. Under s36 of the Migration Act 1958
21. (2000) 201 CLR 293
22. Chen Shi Hai v Minister for Immigration and Multicultural
Affairs (2000) 201 CLR 293 at 303-304 (per Gleeson CJ, Gaudron, Gummow
and Hayne JJ) and at 317-318 per Kirby J
23. Chen Shi Hai v Minister for Immigration and Multicultural
Affairs (2000) 201 CLR 293 at 304 (per Gleeson CJ, Gaudron, Gummow and
Hayne JJ) and at 318 per Kirby J
24. Chen Shi Hai v Minister for Immigration and Multicultural
Affairs (2000) 201 CLR 293 at 306-307 (per Gleeson CJ, Gaudron, Gummow
and Hayne JJ) and at 319 per Kirby J
25. Migration Act 1958, s78
26. The Status of Stateless persons convention or the
Reduction of Statelessness Convention
27. Full citation is US model Code, Title 8 Chapter 12,
Subchapter III, Part I, §1401
28. USMC, Title 8 §1153(a)(1) (2) & (3)
29. USMC, Title 8 §1153(d)
30. USMC, Title 8 §1153(a)(4)
31. Citizenship Act R.S 1985 C.C.-29, section 3
32. Immigration Regulations 1978, section 2(1), section
5
33. Immigration Regulations 1978, section 2(1), section
6
34. British Nationality Act 1948, section 7
35. Subject to satisfaction of certain prerequisites
relating to the individual's criminal record. This is the result of amending
legislation that came into force in January of 2000. This information
is available at http://www.auswaertiges-amt.de/www/en/willkommen/staatsangehoerigkeitsrecht/index_html
36. See http://www.auswaertiges-amt.de/www/en/willkommen/staatsangehoerigkeitsrecht/index_html
37. And hence be ineligible for Australian Citizenship
under s23B(1A), Australian Citizenship Act 1948
38. Walter H Bennett Jnr, "A critique of the emerging
Convention on the Rights of the Child" (1987) 20 Cornell International
Law Journal 1 at 22 (n129)
39. Douglas Hodgson, "The Child's Right to a Legal
Identity" (1993) 2 Australian Journal of Family Law 121 at 125
40. Or at least no obvious opportunity
41. J Neville Turner "The rights of the child under
the UN Convention" (1992) 66 Law Institute Journal 38 at 42
42. Australia's Third report under the International
Covenant on Civil and Political Rights, published by the Attorney General's
department 1998
43. International Covenant on Civil and Political Rights,
Article 24(3),
44. Immigration Detention Standards - Principles underlying
care and security, available at http://www.immi.gov.au/detention/det_standards.htm
45. Immigration Detention Standards - Principles underlying
care and security, available at http://www.immi.gov.au/detention/det_standards.htm
