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Independent MP Dai Le, who has defeated former NSW premier Kristina Keneally in the previously safe Sydney seat of Fowler, has insisted she is eligible to sit in parliament under section 44 of the constitution.

Le was born in the now defunct state of South Vietnam and travelled to Australia at age 11 after spending time in refugee camps in the Philippines and Hong Kong.

The new independent MP for Fowler, Dai Le.Credit:Peter Rae

In her Australian Electoral Commission candidate declaration, which has been circulating on social media, Le said she had never been a citizen of another country.

The High Court has taken a strict line against dual citizens sitting in parliament, requiring political candidates to take active steps to renounce any claim to foreign citizenship.

In a post on Facebook Le said: “I can confirm that the AEC accepted my application to stand for the federal election and that I’m not a subject or a citizen of another country, and was not when I lodged my nomination form with the AEC prior to the close of the nomination.”

Le said the Labor Party had been trying to “smear” her since her shock victory.

The Australian constitution states that someone who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives”.

Dr Paul Kildea, a senior lecturer at the University of NSW faculty of law and justice, said it appeared possible Le had previously held Vietnamese citizenship and that she had filled out her form incorrectly.

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