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Let us say that we have a person who is undocumented, born to parents who were also undocumented, and whose ancestors were all also undocumented. For all intents and purposes they were all born in Australia, yet they are not members of a group who are recognized as indigenous Australians.

The person in question is about 16 years old as of now, and cannot produce any evidence of their birth or former place of residence, nor can this person produce relatives or other witnesses to their presence in Australia prior to the last month.

Effectively, this person's family may be considered to have been living in an isolated area of Australian bushland with no visible evidence of human occupation, remaining unnoticed by the wider population, since around the time of Australia's discovery by Europeans.

Finally, this group has an unique genetic profile that includes a common inheritable X-linked genetic mutation that has not previously been documented by science or medicine, and was previously thought to be completely mythical, though they are also provably human. This mutation does not constitute a disability, though it does provide certain minor difficulties in using certain aspects of modern housing and transport, as they are significantly taller than normal humans. This mutation cannot readily be concealed save by surgery that would leave the person in a wheelchair for the remainder of their life, and would leave visible scars, without also wearing a garment such as a burka... so it can be demonstrated that they could not have been recent arrivals to Australia, as no mention has ever been made of people with such a remarkable mutation ever entering the country before the appearance of this individual.

My question is: How would it be possible for this individual to obtain legal residency, further education and Australian citizenship, in that order of priority. Obviously, this individual would not want to be placed in detention, so avoiding that is also a priority. What obstacles would have to be overcome, and how long might this process be expected to take?

Citizenship is a secondary goal, and may potentially be obtained through marriage to an Australian citizen.

This question is purely theoretical, and should not be considered to apply to any real person, being research for a work of fiction.

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First, let's be clear.

Under the relevant Australian law, this person is an Australian citizen, This is for two reasons. First, because he or she is descended from someone who was born in Australia in the time period from January 26, 1949 to August 19, 1986 (or who was a British subject born in Australia prior to January 26, 1949), and second, because a child born in Australia after 19 August 1986 (and who is not otherwise an Australian citizen) and who lives in Australia, automatically acquires Australian citizenship on his or her 10th birthday, if the child has not been granted or otherwise acquired Australian citizenship in the meantime. This occurs automatically (by operation of law), and applies irrespective of the immigration status of the child or his/her parents.

So, the question is not one of status as an Australian citizen, but of proof of status as an Australian citizen. This individual is not truly stateless.

Also, even if the parents (contrafactually) were stateless rather than being Australian citizens, which they were, children born in Australia whose parents are stateless and not entitled to any other country's citizenship may in some circumstances apply for and be granted Australian citizenship.

One of the reasons that Australia allows this rule is that in order to deport someone you have to know that the person deported is a citizen of the country to which the person is deported. If you are a stateless person in Australia (as this person is not, but someone might suspect them of being), you can be denied rights the flow from citizenship, rather than merely from being a person or being a resident. But, you can't deport a stateless person because you have no place to deport them to.

Related to this fact is that Australia is a party to the Convention on the Reduction of Statelessness (1961), a multilateral international treaty.

In respect of contracting states:

"Stateless birth" on their territory attracts the grant of their nationality (article 1).

Otherwise stateless persons may take the nationality of the place of their birth or of the place where they were found (in the case of a foundling), otherwise they may take the nationality of one of their parents (in each case possibly subject to a qualifying period of residence in that State) (article 2).

A stateless person has some time beyond attaining adulthood to seek to claim the benefit of the Convention. That time is always at least three years from the age of eighteen (article 1(5)).

Transfer of territory between states must occur in a manner that avoids the occurrence of statelessness for persons residing in the territory transferred.

When a State acquires territory, the inhabitants of that territory presumptively acquire the nationality of that State (article 10).

Persons otherwise stateless shall be able to take the nationality of one of their parents (possibly subject to a period of prior residence not more than three years) (article 4).

Absent circumstances of fraudulent application or disloyalty toward the contracting state, deprivations and renunciations of citizenship shall only take effect where a person has or subsequently obtains another nationality in replacement (article 8).

The United Nations High Commissioner for Refugees (UNHCR) will issue travel documents evidencing nationality to persons, otherwise stateless, having a claim of nationality under the convention.

Birth on a sea vessel or aircraft may attract the nationality of the flag of that vessel or craft (article 3).

Disloyal or certain criminal conduct may limit an individual's ability to avail the benefit of the Convention (article 8).

The benefit of the Convention may be claimed by guardians on behalf of children (article 1(1)).

States may impose a period of residence qualification for granting nationality to persons who may be otherwise stateless. That period is a maximum five years immediately prior to application and maximum of ten years overall (article 1(2)).

There is also the question of proof. What suffices as proof sufficient for an immigration and nationality official varies, and there are probably presumptions that would be relevant.

The fact that you are currently resident in Australia, that you have no recollection of living anywhere else or being told that you live anywhere else, your own testimony under oath regarding your place of birth and ancestry, any documentation that exists of you being in Australia in the past, and the fact that you speak English in an Australian accent fluently and speak no other language, would also be evidence of your citizenship or might trigger a presumption in favor of assuming that you are a citizen unless proven otherwise.

The government can also change its processes to fit special circumstances.

For example, during the Vietnam War in which the United States was involved, a significant number of children were born to U.S. soldier fathers and Vietnamese mothers in Vietnam. Ordinarily, under U.S. law, it is necessary to establish that a particular person who is a U.S. citizen was your father. But, in the aftermaths of these births, there was a period of time at least, when anyone born in Vietnam to a Vietnamese mother, who was racially part-Vietnamese and part either European or African in ancestry, was presumed based upon appearance alone to be a child of a U.S. citizen present in Vietnam in connection with the war effort and granted citizenship by birth, with their place of birth and mixed race alone sufficing to establish their citizenship.

It wouldn't be hard to imagine Australia adopting such a rule in the case that you describe.

Also, even if such a per se rule were not adopted, usually the ultimate test in a proceeding to establish citizenship is proof by a preponderance of the evidence that it is more likely than not that this person is an Australian citizen, and that standard could probably be met by any official who was not intentionally inclined to bear ill will to this person or their group. Competent legal representation and expert testimony would likely help the person to establish their citizenship.

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  • I think you mean "or was a British subject born in Australia prior to January 26, 1949"; British citizenship did not yet exist in 1949.
    – phoog
    Aug 7 '20 at 23:38
  • @phoog Fixed this minor point.
    – ohwilleke
    Aug 8 '20 at 0:20
  • This person, up until a month before, did not know that they were within the borders of Australia, and knew only the name given by their family to their lands. They speak good English, but with an accent never previously heard anywhere else in the world. There are no others of the same descent from the same place seeking recognition of their citizenship. As I see it, they must somehow prove that this land that they now cannot find to show anyone is in fact accessible within Australia's borders and that they didn't arrive from elsewhere.
    – Monty Wild
    Aug 9 '20 at 16:14
  • So, the question that remains unanswered is: How can this person get their citizenship recognized, how long might it take, and how can they access schooling without the relevant documentation?
    – Monty Wild
    Aug 9 '20 at 16:24
  • @MontyWild I've reached the limits of my knowledge. There are one or two Australian lawyers who post here who may be able to provide better answers.
    – ohwilleke
    Aug 12 '20 at 19:58

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