Foster, Michelle; McAdam, Jane; Wadley, Davina --- "Part One: The Protection of Stateless Persons in Australian Law - The Rationale for the Statelessness Determination Procedure" [2017] MelbULawRw 1; (2017) 40(2) Melbourne University Law Review 401

PART ONE:

THE PROTECTION OF STATELESS

PERSONS IN AUSTRALIAN LAW —

THE RATIONALE FOR A STATELESSNESS

DETERMINATION PROCEDURE

MICHELLE FOSTER,^[*] JANE MCADAM^[†] AND DAVINA WADLEY^[‡]

Over the past decade, there has been renewed global interest in statelessness. With the 50^th anniversary of the 1961 Convention on the Reduction of Statelessness in 2011 (coinciding with the 60^th anniversary of the 1951 Convention Relating to the Status of Refugees), the UNHCR organised a Ministerial Intergovernmental Event on Refugees and Stateless Persons which stimulated unprecedented commitments by states to adopt and implement actions to address statelessness. There were further important developments in 2014. That year marked the 60^th anniversary of the 1954 Convention Relating to the Status of Stateless Persons, the launch of the UNHCR’s 10-year campaign to eradicate statelessness, and the first Global Forum on Statelessness, co-hosted by the UNHCR and Tilburg University. However, to date there has been virtually no legal or academic analysis of statelessness in Australia, and little in the way of government responses to it. This article, together with a companion article published separately in this issue, provides the first comprehensive analysis of the state of statelessness in Australian law. It examines Australia’s compliance with its obligations under international law to identify and protect stateless persons, and makes recommendations for future legislative reform, including the creation of a statelessness status determination procedure.

CONTENTS

I INTRODUCTION

The problem of statelessness is not only a legal problem resulting in the inability to exercise rights. It is a problem of identity under the law.^[1]

The protection of stateless persons has long been a focus of concern of the international community. From the 1920s until the end of the Second

World War, the plight of all those displaced — whether refugees or stateless

persons — was understood in terms of a shared predicament, namely being outside their country of origin or former habitual residence, and lacking protection.^[2] In the aftermath of the Second World War, the legal status of ‘persons who do not enjoy the protection of any government’ was given early consideration,^[3] and it was recognised that action was needed ‘to ensure that everyone shall have an effective right to a nationality’.^[4] The resultant report, A Study of Statelessness,^[5] noted the importance of both improving the protection of stateless persons, and eliminating statelessness in the future. This required the creation of a legal status for stateless persons, as well as efforts to improve domestic nationality laws, facilitate naturalisation and better regulate

territorial settlements.

As a result, the United Nations (‘UN’) established the Ad Hoc Committee on Statelessness and Related Problems whose mandate was to consider the desirability of a ‘revised and consolidated convention relating to the international status of refugees and stateless persons’, and ways to eliminate future statelessness.^[6] The Committee almost immediately separated out the question of the resolution of the status of refugees, on the one hand, and stateless persons, on the other, with the refugee challenge accorded priority.^[7] While some stateless persons were also refugees, others were not, and notwithstanding differences of opinion among delegates, the majority felt that the needs of refugees were so pressing that they should be dealt with first.^[8]

This approach resulted in the relegation of the two statelessness Conventions, adopted in 1954 and 1961, to relative obscurity for decades. However, the identification, recognition and legal protection of stateless persons has undergone a renaissance in the past decade, chiefly led by the work of the UN High Commissioner for Refugees (‘UNHCR’),^[9] and supported by a flourishing emerging body of academic research on the plight of stateless persons internationally.^[10] As two leading thinkers in this area recently concluded, ‘statelessness has now “arrived” as a recognised focus of both academic and policy-oriented study.’^[11]

Yet, notwithstanding Australia’s active role in the formulation of the relevant international legal treaties, and its early ratification of them,^[12] there is virtually no academic analysis or research on the extent, predicament or protection of stateless persons in Australia.^[13] Further, despite a pledge in 2011 by the Australian government to the UNHCR that it would ‘better identify stateless persons and assess their claims’ and ensure that ‘stateless persons are treated no less favourably than people with an identified nationality’,^[14] key treaty obligations have yet to be implemented in domestic law. While individual cases have sometimes highlighted the plight of stateless persons in Australia, such as the infamous case of Mr Al-Kateb,^[15] and the more recent plight of ‘baby Ferouz’,^[16] there remains a significant lacuna in understanding and analysis of the issue.

In this article, we present the first comprehensive analysis of the state of statelessness in Australian law and the reasons why the creation of a statelessness status determination procedure is essential to ensure that Australia complies with its international legal obligations. We begin by briefly outlining the meaning of statelessness and its consequences for those without protection in Part II, before turning to an overview of Australia’s relevant international obligations in Part III. In Part IV we outline what is currently known about the number of stateless persons in Australia. In Part V we turn to consider the protection of stateless persons in Australian law in light of obligations under both the 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’)^[17] and the 1954 Convention on the Status of Stateless Persons (‘1954 Convention’),^[18] the twin international regimes dedicated to the identification of those in need of international protection.^[19] In Part VI we make a case for the establishment of a dedicated statelessness status determination procedure in Australia, and make recommendations as to the key features of such a procedure.

II BACKGROUND AND CONTEXT: WHAT IS STATELESSNESS AND WHY DOES IT MATTER?

Article 1(1) of the 1954 Convention establishes the universal definition of a ‘stateless person’ as ‘a person who is not considered as a national by any State under the operation of its law.’^[20] This is a deliberately narrow, technical definition that ‘is not one of quality, simply one of fact.’^[21] It does not take into account whether nationality is effective, but only whether a person has it, as a matter of law. Nor is the definition concerned with the reasons for the individual’s lack of nationality; the absence of nationality in and of itself is sufficient to ground an entitlement to protection.^[22] Nationality refers to the ‘legal bond between a person and a State’,^[23] and for the purposes of this article, we use the terms nationality and citizenship interchangeably.^[24]

While states have a duty not to create statelessness,^[25] they do not have a corresponding obligation to confer nationality, other than in specific situations such as the requirement of the 1961 Convention on the Reduction of Statelessness (‘1961 Convention’)^[26] that nationality be granted to a child born on a state’s territory where a child would otherwise be stateless.^[27] Article 15(1) of the Universal Declaration of Human Rights provides that ‘[e]veryone has the right to a nationality’,^[28] but this was not translated into binding form in the International Covenant on Civil and Political Rights (‘ICCPR’), other than for children.^[29] Although art 12(4) of the ICCPR provides that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country’,^[30] it does not impose positive obligations per se to confer nationality on any particular individual. Hence, while the traditional position that nationality is within the reserved domain of states has undoubtedly been tempered by international human rights norms, considered below, states nonetheless retain significant discretion to design their citizenship laws in line with their own internal sociopolitical interests. In other words, the principle set out in art 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws that ‘[i]t is for each State to determine under its own law who are its nationals’,^[31] remains the default position in international law today.

Nationality is important because it ‘serves as the basis for legal recognition and for exercise of other rights.’^[32] Yet, the UNHCR estimates that at least 10 million people worldwide are stateless,^[33] with the highest known concentration in the Asia-Pacific region.^[34] It is difficult to provide a precise number of stateless persons globally on account of the difficulties inherent in counting stateless populations,^[35] inaccurate reporting and inconsistent definitions of statelessness.^[36] What is known, however, is that some families have been stateless for generations, and that despite renewed attention to this issue and positive actions by many states to prevent or reduce statelessness, new cases continue to arise.^[37]

The causes of statelessness are multifaceted and varied. Statelessness can occur as a result of discriminatory or conflicting nationality laws,^[38] arbitrary deprivation of nationality, the dissolution, separation or succession of states, entrenched barriers to birth registration and other civil registration processes, administrative oversights, the renunciation of one nationality without first acquiring another citizenship, or denationalisation.^[39] A person can also be rendered stateless through marriage or the ‘dissolution of a marriage between couples from different countries’, or by being born to a stateless person.^[40] Migration can also result in statelessness (or a risk of statelessness) for refugees and irregular migrants without documents who lose their ties or proof of nationality in relation to their country of nationality, and are unable to acquire the nationality of their host state.^[41]

While the causes of statelessness vary widely, the consequences are often very similar for those affected by this phenomenon. In Hannah Arendt’s words, they are denied ‘a right to have rights’.^[42] Stateless persons (and those at risk of becoming stateless) often live in a ‘legal limbo’^[43] characterised by vulnerability, insecurity and marginalisation.^[44] They often have (at best) limited access to basic human rights such as education, regularised employment, housing and health services.^[45] They typically face a heightened risk of exploitation, arrest and arbitrary detention because they cannot prove who they are or that they have links to any country.^[46] Without a nationality, a person may be unable to buy and sell property, open a bank account, pay taxes, legally marry or register the birth of a child.^[47] The predicament of stateless children has garnered particular international attention in recent years.^[48] The UNHCR estimates that there is ‘a stateless child being born ... at least every 10 minutes’, and observes that the effects of being born stateless are profound especially in terms of access to the most basic of human rights such as medical care.^[49]

Statelessness can also be a precursor to, or a root cause of, forced or irregular migration or trafficking, as recently acknowledged in the 2016 Bali Declaration on People Smuggling, Trafficking in Persons and Transnational Crime.^[50] Given that such populations commonly lack identity documentation, legal recognition and protection from their state of origin or former habitual residence, they are often unable to return. This is why it is so important that countries of asylum establish a credible system for identifying and ensuring that a protective status is granted to stateless persons in accordance with international law.

III THE INTERNATIONAL LEGAL FRAMEWORK

AND AUSTRALIA’S OBLIGATIONS

The two core treaties pertinent to statelessness are the 1954 Convention and the 1961 Convention. The majority of stateless persons live in the country of their birth or long-term residence and have never crossed an international border. This means that the answer to their predicament is more likely to require reform of the nationality laws of their own state (the focus of the 1961 Convention), rather than formal recognition as ‘stateless persons’.^[51] By contrast, the 1954 Convention establishes a legal status for stateless persons which is particularly relevant to those who find themselves in another country. The provisions of that treaty are the focus of the analysis in the present article given that most stateless persons in Australia have arrived in, and seek the protection of, Australia by virtue of their statelessness.

As mentioned above, it was originally intended that the Ad Hoc Committee on Statelessness and Related Problems would draft a treaty to resolve the status of both stateless persons and refugees. However, in its report to the UN Economic and Social Council in 1950,^[52] the Committee confined its draft text to refugees, with the status of stateless persons relegated to a proposed additional protocol under which states might agree to extend the application of the Refugee Convention mutatis mutandis to stateless persons who were not otherwise covered.^[53] Although a draft protocol was referred to the Conference of Plenipotentiaries that drafted the Refugee Convention,^[54] it decided to refer it back to the appropriate organs of the UN for further study.^[55]

In September 1954, the UN Economic and Social Council convened a Conference of Plenipotentiaries on the Status of Stateless Persons, which formulated, debated and produced a draft treaty in September 1954.^[56] Australia was one of only 27 states to participate in the Conference,^[57] and was an active member of the Drafting Committee on the Definition of the Term ‘Stateless Person’.^[58]

The 1954 Convention was adopted on 23 September 1954 and came into force on 6 June 1960 (with its sixth ratification). Australia acceded to it in December 1973 without reservation^[59] — the same day that it ratified the 1961 Convention (focused on addressing the underlying problem of statelessness itself). However, whereas the 1951 Refugee Convention and its 1967 Protocol^[60] enjoy widespread ratification with 147 states parties, the 1954 Convention still has only 89 states parties.^[61]

The object and purpose of the 1954 Convention is to ‘regulate and improve the status of stateless persons by an international agreement’ and to secure for them ‘the widest possible exercise of [their] fundamental rights and freedoms’.^[62] The UNHCR observes that the 1954 Convention remains the ‘only international treaty aimed specifically at regulating the standards of treatment for stateless persons’ and, therefore, ‘is of critical importance in ensuring the protection of this vulnerable group.’^[63]

The 1954 Convention provides an almost identical legal status to stateless persons as that afforded to refugees under the Refugee Convention. This is perhaps unsurprising given that the drafters used, inter alia, the provisions of the Refugee Convention as the basis of their discussions.^[64] Thus, it sets out a broad range of civil, economic, social and cultural rights divided into four categories: juridical status, gainful employment, welfare, and administrative measures.^[65] Nevertheless, there are several important differences, including a lower standard of protection for stateless persons in relation to some rights,^[66] and an absence of others, most notably the principle of non-refoulement.^[67]

In addition to the two specialist statelessness treaties, Australia is a party to key human rights instruments that impose obligations relevant to the prevention and reduction of statelessness, and the protection of

stateless persons.^[68]

As well as these binding treaty obligations, there are a number of other relevant developments that provide important context to assessing Australia’s protection of stateless persons. As a member of the UNHCR’s Executive Committee, Australia participated by consensus in the formulation of the ‘Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons’ in 2006.^[69] Among other things, this:

Calls on States not to detain stateless persons on the sole basis of their being stateless and to treat them in accordance with international human rights law and also calls on States Parties to the 1954 Convention relating to the Status of Stateless Persons to fully implement its provisions ...^[70]

In 2011, on the 50^th anniversary of the 1961 Convention and the 60^th anniversary of the Refugee Convention, the UNHCR convened a Ministerial Intergovernmental Event to mark these anniversaries and to invite states to make concrete commitments to improve protection and assistance to refugees and stateless persons. Whereas the two statelessness Conventions had long been under-subscribed and the phenomenon of statelessness had been ‘largely absent from the global human rights agenda,’^[71] the event increased momentum on this issue. Thirty-three states pledged to accede to one or both statelessness treaties, and more than 40 states undertook to implement other measures to reduce statelessness, such as by reforming domestic nationality laws.^[72] Although these pledges were not legally binding, they provide an important benchmark for evaluating whether the protection of stateless persons globally has improved in the past five years, including prevention, reduction and identification of statelessness.^[73]

It was in this context that Australia pledged:

to better identify stateless persons and assess their claims. Australia is committed to minimising the incidence of statelessness and to ensuring that stateless persons are treated no less favourably than people with an identified nationality. Australia will continue to work with UNHCR, civil society and interested parties to progress this pledge.^[74]

This declaration reinforced contemporaneous statements by the Australian government that it intended to create a statelessness status determination procedure within the framework of the Migration Act 1958 (Cth) (‘Migration Act’). However, the government subsequently decided to create only internal departmental procedures to determine statelessness,^[75] and stated that a dedicated visa for stateless persons would not be considered.^[76]

It is against this background that we examine current Australian law to assess how fully it reflects Australia’s international obligations to protect stateless persons, and to recommend how greater compliance might

be achieved.

IV THE EXTENT OF STATELESSNESS IN AUSTRALIA

There is no comprehensive, publicly available governmental record of the number of stateless persons in Australia. The Australian Bureau of Statistics does not collect information either on the number or location of stateless persons in Australia,^[77] and there is no mechanism in place to identify them. As the Equal Rights Trust has observed, ‘[t]he stark absence of accessible data on statelessness in Australia is reflected in the fact that Australia consistently registers “nil” under the category of stateless persons in the UNHCR annual report’.^[78] This is not a uniquely Australian phenomenon; rather, improving ‘quantitative and qualitative data on stateless populations’ is one of the ten actions to end statelessness listed in the UNHCR’s Global Action Plan to End Statelessness 2014–24.^[79] In the absence of specific procedures to identify stateless persons, it is unclear how many people go ‘unnoticed

and unidentified’.^[80]

While statelessness itself is not an independent ground for being granted protection in Australia, it may be relevant (or even central) to a refugee or complementary protection claim. Thus, there is some data available about the numbers of people granted protection visas — as refugees or beneficiaries of complementary protection — who were also identified as being stateless.^[81] However, it must be emphasised that the lack of a coordinated or consistent approach to recording or monitoring numbers of stateless persons in Australia means that any available data is necessarily piecemeal and provides only part of the picture. For example, reliable statistics post-2012–13 are not available,^[82] and as such, the Tables below do not provide a full account of these issues in recent years. In addition, the deficiencies in the process for identifying stateless persons, outlined below, suggest further reasons why these figures are incomplete.

However, we can discern that there has clearly been an increase in the number of stateless asylum seekers classified as ‘illegal maritime arrivals’ (‘IMAs’) seeking protection in Australia as indicated in Table 1. For example, in the 2012–13 period, 18 119 people arrived by sea and were screened into a refugee status determination process.^[83] Of this group, there were 1608 stateless applicants, which was the fourth largest cohort.^[84]

Table 1: Refugee Status Determination Requests Received by Stateless IMAs^[85]

The following Table shows the Primary Protection Visa grant rate for IMAs by first-instance government decision-makers over a similar time period. It shows that while success rates have fluctuated, in some years quite dramatically, on the whole there has been a reasonably strong rate of success.

Table 2: Primary Protection Visa Grant Rates for Stateless IMAs^[87]

Following merits review of such decisions for IMAs who arrived and were interviewed before 24 March 2012 (known as the independent merits review/independent protection assessment), the outcomes were as follows:

Table 3: Review Recommendations by Countries by Stateless IMAs^[88]

The following Table shows the figures for stateless persons who arrived by plane (‘non-illegal maritime arrivals’, or ‘non-IMAs’) between 2008 and 2013 and were granted protection visas by the Department of Immigration and Border Protection.

Table 4: Final Determinations for Stateless Non-IMAs^[89]

Of course, all these statistics must be approached with caution as they do not provide any breakdown by cohort, ethnicity, or country of former habitual residence. Thus, it is likely that the overall approval rates for some groups will vary dramatically from others, as is the case in refugee status determination in Australia in general.^[90] The figures are broadly comparable with overall rates of success for onshore arrivals who are not stateless, indicating that the Australian government accepts the fundamental proposition that stateless persons can qualify for refugee status if they meet the requirements of the refugee definition.^[91] However, it is important to note that the lack of a statelessness status determination procedure, and the deficiencies outlined below in existing departmental guidelines relevant to identifying stateless persons, means that there is currently no verifiable method of discerning overall success rates for de jure stateless persons who seek protection in Australia.

While the precise ethnic composition of stateless persons in Australia is unclear, there is agreement about the predominant groups. According to the Department of Immigration and Border Protection’s Procedures Advice Manual 3 (‘PAM3’), ‘[t]he four largest cohorts of PV [Protection Visa] applicants claiming to be stateless [in Australia] are: Burmese Rohingya, Faili Kurds (from Iran and Iraq), Kuwaiti Bidoon,^[92] and Palestinians (from Iraq).’^[93]

In terms of those in immigration detention who are awaiting status determination or deportation, government figures suggest that as at 30 September 2015, 81 people in immigration detention in Australia (including the Australian mainland and Christmas Island) were classified as stateless by the Department.^[94] It is important to note that there is no publicly available information as to how the Department has classified such persons as stateless. Additionally, since there is no stateless determination process in Australia, as discussed below, it is likely that people could be wrongly classified and the number of persons who are stateless and in detention could be much higher. There is no information publicly available as to the number of stateless persons detained in offshore processing centres in Nauru and Manus Island. However, recent news reports suggest that unsuccessful stateless applicants could be detained in Papua New Guinea’s gaols since they have no country to which they can return.^[95] Neither Papua New Guinea nor Nauru has ratified the 1954 Convention.^[96]

Stateless persons come to Australia not only as onshore spontaneous arrivals but also through the humanitarian resettlement programme. Statistics compiled by the Refugee Council of Australia from the Department’s settlement reporting facility detail the number of stateless people from 2009–14 who were granted permanent residency (and who have therefore either become Australian citizens or are at least on a pathway to naturalisation in Australia). These figures include 3156 people accepted through the refugee and humanitarian programme, 302 people from the family migration stream, 23 people from the skilled migration stream and one person from an unidentified migration stream.^[97] Since the majority of applicants were granted permanent residency through the refugee and humanitarian programme, an analysis of the ethnicities of formerly stateless persons in Australia may provide further guidance on the ethnic composition of stateless asylum seekers and refugees in Australia. The Refugee Council of Australia has also reported that:

The most common countries of birth for stateless people granted permanent residency in Australia between 2009–10 and 2013–14 were Iran and Iraq, with Kurdish the most common ethnicity. Other common countries of birth included the Democratic Republic of the Congo, Burma, Kuwait, Tibet, India and Lebanon. Other common ethnicities included Arab, Rohingya and Tibetan.^[98]

In sum, the limited available statistics, the absence of a procedure to systematically identify stateless persons and a lack of clarity about the definitions or process relied upon to compile the numbers outlined above make it impossible to identify the number or background of stateless persons in Australia with any certainty. A comprehensive empirical mapping study of statelessness in Australia is needed to better understand the population profile of stateless persons (and persons at risk of statelessness) in Australia.^[99] What is clear, however, is that Australia’s international obligations in respect of stateless persons are engaged by at least a proportion of those who seek protection each year.

V THE PROTECTION OF STATELESS PERSONS IN AUSTRALIA

Like the Refugee Convention, the 1954 Convention is silent on the procedure required for status determination. Clearly, however, in order to determine who is a ‘stateless person’ — and thus who is owed the rights and entitlements provided for in that treaty — a procedure for determining statelessness

is necessary.^[100]

Australia does not have such a procedure within its legislative framework. The mechanism through which Australia seeks to implement certain of its international protection obligations is s 36 of the Migration Act. Since 2011, it has provided protection not only to those who qualify for refugee status (pursuant to the Refugee Convention)^[101] but also to people to whom Australia owes non-refoulement obligations under the Convention against Torture (‘CAT’) and the ICCPR (known as complementary protection).^[102] The Act deliberately has not been extended to stateless persons who do not also qualify for refugee status or complementary protection.^[103] While refugees and stateless persons are similarly situated, ‘[s]tatelessness and refugee status are by no means identical phenomena.’^[104]

A Protection for Stateless Persons Pursuant to the Refugee Convention

As mentioned above, the drafters of the Refugee Convention made an explicit decision to confine the scope of the Refugee Convention to refugees, preferring that de jure stateless persons (who were not also refugees) be dealt with in a distinct instrument. However, it was nonetheless recognised that stateless persons could qualify for refugee status if they were unable to return to their country of habitual residence owing to a well-founded fear of being persecuted for a Refugee Convention reason. Accordingly, art 1(A)(2) of the Refugee Convention defines a refugee as someone:

[who] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.^[105]

We know that ‘most refugees today are not stateless, and most stateless persons are not refugees.’^[106] Yet, most states do not have a separate regime in place for determining statelessness. For those that do, the UNHCR recommends that each claim should be separately assessed and both statuses recognised,^[107] although refugee status should be considered first, given the more beneficial terms of the rights regime set by the Refugee Convention (described above). Many stateless persons have been found to be refugees and been given protection pursuant to the Refugee Convention regime, and there is now a substantial body of jurisprudence that has developed globally over several decades. Yet, there is little academic examination of this jurisprudence, including in Australia.^[108]

In order to analyse the adequacy of Australia’s domestic law in protecting stateless persons, this Part of the article considers: (a) the relevant Ministerial guidelines issued to guide first instance decision-making by government officials;^[109] and (b) decisions by the Refugee Review Tribunal (‘RRT’),^[110] Federal Circuit Court and Federal Court of Australia published between 1 January 2004 and 21 August 2015,^[111] focused on the four main ethnic groups from which people have claimed to be stateless refugees: Faili Kurd, Palestinian, Rohingya and Bidoon.^[112] Research focused on these four ethnicities returned 127 decisions of the RRT, Federal Court of Australia, Federal Court of Australia Full Court, Federal Circuit Court and the Administrative Appeals Tribunal. However, due to the fact that only a minority of decisions of the RRT are publicly available,^[113] it is impossible to undertake a comprehensive analysis of how claims for protection in Australia by stateless applicants are assessed. Hence, this section of the article does not purport to provide a quantitative picture, but rather is designed to identify the key issues and challenges faced by stateless persons in seeking protection in Australia.^[114]

Ministerial Direction [No 56] — Consideration of Protection Visa

Applications^[115] requires:

decision-makers, including the Tribunal, to take account of the Department of Immigration’s ‘PAM3: Refugee and [H]umanitarian — Complementary Protection Guidelines’ and ‘PAM3: Refugee and [H]umanitarian — Refugee

Law Guidelines’ to the extent that they are relevant to the decision

under consideration.^[116]

The latter contains a part called ‘Assessing claims of statelessness guidelines’, whose stated purpose is ‘to help PV decision-makers make findings in relation to claims of statelessness for the purpose of a PV assessment.’^[117] Protection Visa decisions relate to whether or not someone is a refugee or in need of complementary protection. Indeed, PAM3 notes that:

Statelessness is not defined in the Act and there is no legislative basis for making a determination of whether an applicant is stateless. Instead, assessing claims of statelessness: is an administrative process closely linked to establishing identity, and supports a robust PV assessment, especially where the harm relates to statelessness.^[118]

Accordingly, a key initial criticism of the PAM3 is that although the statelessness guidelines were formulated in response to Australia’s 2011 pledge ‘to better identify stateless persons and assess their claims’,^[119] their scope is limited to refugee and complementary protection assessments. As explained above, the Act does not currently protect stateless persons who do not also fall into one of these categories. PAM3 does not respond to the broader question of how to identify, and resolve the status of, stateless persons covered by the statelessness Conventions, which was the intention behind the UNHCR’s request for state pledges in 2011.^[120] However, given that the guidelines are relevant to assessing claims by stateless persons pursuant to the Refugee Convention and complementary protection provisions, they warrant examination in those contexts.

1 Statelessness Per Se as a Basis for Refugee Status?

It is now widely accepted that ‘mere statelessness or inability to return to one’s country of former habitual residence [is] insufficient of itself to confer refugee status under the Convention’.^[121] This has been the conclusion in all jurisdictions that have examined the question.^[122]

This issue was discussed at length in several decisions of the Federal Court of Australia in the late 1990s.^[123] In Savvin v Minister for Immigration and Multicultural Affairs, Dowsett J concluded that although persons with a nationality were required to establish a well-founded fear of being persecuted, stateless persons only had to show that they were unable or unwilling to return to their country of former habitual residence.^[124] This was based on a literal interpretation of the refugee definition in art 1(A)(2) of the Refugee Convention, and, in particular, the presence of a semi-colon separating the conditions required to be satisfied by refugees with a nationality from those required to be satisfied by refugees without one. Dowsett J posited that ‘the definition is in two parts — that preceding the semicolon and that following it’,^[125] and hence reasoned that the inclusion of ‘well-founded fear of being persecuted’ in the first but not the second part meant that a stateless person who was simply unable to return to his or her country of former habitual residence could be a refugee.^[126] In Dowsett J’s opinion, this interpretation was supported by a view that stateless persons were in as much need of protection as refugees, and that ‘[t]he underlying humanitarian philosophy of the Convention is that displaced persons should be given an opportunity to rebuild their lives with a relative degree of security.’^[127]

However, on appeal to the Full Federal Court, this position was not adopted. As Katz J explained there, ‘even giving the semicolon its full weight as a constructional aid, I take the view that, in accordance with accepted grammatical principles, the semi-colon does not do the work of dividing the definition into two independent parts’.^[128] Instead, the Court took the view that all applicants for refugee status — whether stateless or not — must establish that they ‘have a well-founded fear of being persecuted for a Convention reason.’^[129] This was based on a different literal reading — in particular, the presence of the words ‘such fear’ in the latter part of the definition^[130] — as well as the travaux préparatoires,^[131] and the approach adopted by foreign courts.

This position has since been affirmed,^[132] and courts have uniformly made clear that where stateless persons claim protection under the Refugee Convention, ‘refugee status must be assessed on the basis of the usual criteria, that is by demonstrating a well-founded fear of being persecuted for a

Convention reason’.^[133]

While this may reflect a principled approach, and, indeed, the object and purpose of the Refugee Convention, there are several ways in which the claims of stateless persons raise unique issues that may not be adequately addressed by refugee law. Even when a decision-maker is engaged solely in assessing whether or not a stateless person meets the refugee definition, the inadequacy of processes to determine statelessness may pose obstacles.

2 Assessing Whether a Person is Stateless

For the purposes of assessing a stateless person’s claim to refugee status under art 1(A)(2) of the Refugee Convention, the pertinent question is whether he or she can be understood as ‘not having a nationality’. While phrased in similar, although not identical, terms to art 1(1) of the 1954 Convention’s stipulation that a stateless person is ‘not considered as a national by any State under the operation of its law’,^[134] refugee decision-makers do not usually make reference to the 1954 Convention in assessing this element of the refugee definition. Ascertaining whether a person has a nationality is, however, a vital first step in the examination of any protection claim because a finding that a person is stateless directs the decision-maker to the second part of the refugee definition (and, hence, to the question of the country of former habitual residence as the reference country, which is crucial to the nature of the harm feared). It is also often the core of the claim where a stateless person relies on an absence of nationality as the source of his or her fear of being persecuted.

PAM3 appropriately states that ‘[i]f an applicant claims to be stateless, this issue should be considered and if possible a finding made before their protection claims are assessed.’^[135] However, PAM3 overlooks the extensive guidance that now exists internationally on both the substantive and procedural aspects of determining whether or not a person is stateless.^[136]

First, PAM3 outlines a list of possible interview questions to assist in assessing statelessness.^[137] However, they do not provide detail as to who bears the so-called onus of proof, the required standard of proof, or whether some information may be accorded greater weight than other information.^[138]

Many individuals will face significant challenges in demonstrating that they are stateless precisely because of their limited access to evidence and documentation. For this reason, applicants ‘should not bear sole responsibility for establishing the relevant facts.’^[139] Rather, the burden should be shared by the applicant and the decision-making authority. That authority must identify which authorities in the relevant reference country are competent to establish nationality, based on the law and practice of those countries.^[140] Where an individual can show, on the basis of all reasonably available evidence, that he or she is not a national of a country with which he or she has a relevant connection, then the burden should shift to Australia to prove that the individual is a national of a particular country.^[141]

Second, PAM3 appropriately states that:

decision-makers must consider all available information, including written claims, documentary evidence and oral evidence provided by the applicant, as well as country of origin information ... or any paper on CISNET [a departmental database] relating to the country where the applicant resided or cohort to which they belong, and they must not rely solely on a person’s claims of

being stateless.^[142]

However, PAM3 suggests that a decision-maker ‘should try to attain a level of satisfaction as to the identity of an applicant making claims of statelessness’,^[143] and, in particular, ‘must assess an applicant’s claims of statelessness against the laws of the country/countries of former habitual residence to determine whether the applicant could be entitled to citizenship’.^[144] Even more concerning is the idea that a person ‘might have an unexercised entitlement to residence or citizenship in another country [other than the country of former habitual residence]’,^[145] which could include a country to which the applicant has never been. This notion that a person ‘could be entitled to citizenship’^[146] is at odds with the clear view of the UNHCR that nationality ‘is to be assessed as at the time of determination’ and is not ‘a predictive exercise.’^[147] Hence, whether or not a person could be entitled to citizenship is arguably irrelevant to assessing his or her protection needs.^[148] Furthermore, a mere ‘entitlement to resident status’^[149] does not obviate Australia’s obligations under either the 1954 Convention or the Refugee Convention.^[150]

A third issue relates to the possession of documentation by the applicant. As detailed above, PAM3 states that decision-makers must consider ‘all available information’.^[151] However, there is no discussion of the challenges an applicant may face in providing documentary evidence, such as identity and travel documentation, or oral evidence. On account of not being recognised as a national by any state, stateless persons generally do not have documentation as to their citizenship status. This may prevent them from obtaining other forms of identity documentation as well.^[152]

For instance, there are many factors that may undermine a stateless applicant’s ability to have his or her birth registered. As such, there may be legitimate reasons why a stateless person is unable to provide either documentary or oral evidence as to the date, place and registration of his or her birth. The UN Children’s Fund (‘UNICEF’) estimated in 2013 that ‘the births of nearly 230 million children under age five [around one in three] have never been recorded.’^[153] In situations of conflict, protracted displacement, humanitarian emergencies and post-conflict transition, birth registration rates are significantly lower or even non-existent.^[154] They are particularly low among refugee and asylum seeker populations,^[155] mainly because parents are often ‘unable to approach the consular authorities of their country of nationality in order to register or claim documents for the child’, and ‘the host State may also be unwilling to provide for birth registration.’^[156] Additionally, in some countries there are significant barriers to the immediate and effective registration of orphans and abandoned children.^[157] Late birth registration is frequently prohibitively expensive for vulnerable groups, and in any case inaccessible given the documentation required.^[158]

For these reasons, the UNHCR’s Handbook on Protection of Stateless Persons advises that ‘[s]tatelessness determination authorities need to take this [inability to obtain documentary evidence] into account, where appropriate giving sympathetic consideration to testimonial explanations regarding the absence of certain kinds of evidence.’^[159]

It also explains why it is not uncommon for stateless persons to acquire false documentation and use multiple identities as a survival mechanism and a pathway for seeking asylum.^[160] This is why the passage in 2015 of the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) was of particular concern. The Act amended s 91W of the Migration Act and added a new s 91WA. The effect was that even if an asylum seeker were found to be in need of protection pursuant to s 36 of the Migration Act:

(1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

(a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

(b) the Minister is satisfied that the applicant:

(i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

(ii) has caused such documentary evidence to be destroyed or disposed of.

(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:

(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

(b) either:

(i) provides documentary evidence of his or her identity, nationality or citizenship; or

(ii) has taken reasonable steps to provide such evidence.^[161]

The statement of compatibility with human rights that accompanied this amendment acknowledged that ‘[t]he Government accepts that it may not be possible, in certain circumstances, for applicants to provide such documents, for instance during times of conflict in their home country or where they are stateless.’^[162] However, this is not reflected explicitly in the legislation and there is no guarantee that statelessness will be understood as a ‘reasonable explanation’^[163] for the above purposes. Indeed, analysis of the limited case law on s 91WA to date — none of which has involved stateless applicants — suggests that decision-makers do not readily accept that an explanation on the part of an applicant is ‘reasonable’ for the purposes of the s 91WA(2)(a) exception.^[164]

Among decision-makers conducting merits review, there appears to be a lack of consistency in the methods used to assess statelessness. While some decision-makers only consider the applicant’s identity or travel documentation^[165] or the applicant’s evidence, others consider the applicant’s evidence together with country information,^[166] the applicant’s evidence together with identity documentation,^[167] or all three.^[168]

Very few of the decisions we considered examined the nationality laws of the countries with which the applicant had links.^[169] A failure to engage in such analysis makes it impossible to effectively assess whether or not the applicant is stateless. In some decisions, the applicant was found to be stateless without any reference to the applicant’s evidence, country information or the nationality laws of relevant countries or otherwise.^[170] Perhaps of most concern was that some decision-makers did not even consider or make a finding with regard to the applicant’s claim to be stateless.^[171]

In the majority of decisions, statelessness assessments were linked to identity assessments. Some decision-makers were reluctant to examine independently whether the applicant was stateless where there were doubts about the applicant’s credibility,^[172] and/or there was insufficient information to support the applicant’s claim.^[173] Importantly, some decision-makers accepted that the applicant’s statelessness forced him or her to travel on fraudulent documents.^[174] Yet, in other decisions, where applicants claimed that the identity documents in their possession were false, their evidence was found not to be credible.^[175] Instead, the documents were relied on by the decision-maker as evidence of the applicant’s identity.^[176] These inconsistencies in approach highlight the problems that occur when there is no clear legislative basis for assessing statelessness.

B How is the ‘Country of Former Habitual Residence’ Determined?

Given that a stateless person is not a national of any country, the relevant country of reference for assessing well-founded fear of being persecuted is the ‘country of his or her former habitual residence’. This is incorporated in the definition of ‘receiving country’ in s 5 of the Migration Act.^[177]

Hathaway and Foster suggest that a country of former habitual residence:

is an international legal term of art, assessed on the basis of a wide-ranging inquiry that would ordinarily include consideration of such factors as whether the applicant was lawfully admitted to, and entitled to leave and return to, the country; lived there for a significant period of time; and made it the center

of her interests.^[178]

In the decisions examined for the purposes of the present analysis, some decision-makers considered factors such as the applicant’s place of birth; the time spent by the applicant in the ‘receiving country’; identity and travel documentation held by the applicant; and the applicant’s links to the ‘receiving country’ with regard to education and employment in determining the country of former habitual residence.^[179] In others, the decision-maker simply accepted the applicant’s contention,^[180] or provided no reasoning at all or made no finding about the applicant’s country of former habitual residence.^[181]

The following Table summarises the places found to be ‘countries of former habitual residence’ in the decisions we considered.

Table 5: Ethnicities and Receiving Countries of Former Habitual Residence

Hathaway and Foster suggest that:

Insofar as a stateless person has more than one country of former habitual residence, it suffices for her to meet the well-founded fear test in relation to one of those states, and to show that she is not able to return to, and receive protection in, any other country of former habitual residence.^[182]

However, in the decisions we examined where the applicant potentially had more than one country of former habitual residence, the decision-maker did not always explore this.^[183] In one decision, the decision-maker recognised the possibility that a stateless person could have more than one country of former habitual residence, but found that the relevant country was the one with which the applicant’s relationship was ‘more broadly comparable to that between a citizen and his or her country of nationality’.^[184]

C Statelessness and Well-Founded Fear of Persecution

As discussed above, while statelessness per se is insufficient to support a claim for refugee protection, there are a number of ways in which the absence of nationality can give rise to a well-founded fear of being persecuted.^[185]

One fascinating and, until recently, under-explored question is whether denial or deprivation of nationality on Refugee Convention grounds is itself persecutory, or whether it is only where the consequences of a lack of nationality are sufficiently serious that the persecution standard is attained.^[186] Consistent with the global trend, there is very little case law on this question in Australia, and that which exists yields contradictory results.

On one hand, the Federal Court has recognised that ‘the denial of citizenship by reason of nationality, race, religion or membership of a social group may constitute persecution.’^[187]

Sometimes the decision-maker does not distinguish between the deprivation of nationality itself, and its consequences. For example, in a decision involving the application for a protection visa by a stateless former resident of Bhutan, the RRT found that:

the applicant’s exclusion from the right to Bhutanese citizenship and the right to return to the country where his family had lived for three generations, as well as all the disadvantages that emanated from the depravation [sic] of these rights amount to persecution for the Convention reason of ethnicity.^[188]

On the other hand, there are cases in which the Federal Court has rejected the notion that arbitrary or discriminatory deprivation of nationality is sufficient to constitute persecution at all. For example, in SZTFX v Minister for Immigration and Border Protection the Court held that ‘in the context of refusal of nationality, it is not that refusal which could be said to be persecutory but rather the conduct which might flow from it.’^[189] This issue has not been resolved and reflects a similar divergence of approaches on this issue in jurisprudence globally.^[190]

Given the widely accepted notion that ‘being persecuted’ can be constituted by a sustained or systemic violation of human rights,^[191] and the fact that arbitrary deprivation of nationality, including on prohibited grounds, is a clear human rights violation,^[192] the better view is that:

short of engineering one’s deprivation of nationality for personal convenience, all deprivation of nationality should lead to a finding of persecution because ‘nationality’ is and continues to be the gateway for the exercise of most basic human rights. Where deprivation of nationality is found to be discriminatory and/or arbitrary, this should lead to finding of persecution for a

Convention ground.^[193]

This issue is ripe for further curial analysis, and the reasoning of the United States (‘US’) Court of Appeals for the 6^th Circuit is instructive in indicating the scope for a more sophisticated approach. In Stserba v Holder,^[194] that Court considered the asylum claim of a woman of Russian ethnicity whose Estonian citizenship had been revoked, rendering her stateless. Quoting the US Supreme Court, the Court stated that ‘[t]he essence of denationalization is “the total destruction of the individual’s status in organized society”’,^[195] and held that ‘because denationalization that results in statelessness is an extreme sanction, denationalization may be per se persecution when it occurs on account of a protected status such as ethnicity.’^[196]

Nevertheless, an examination of jurisprudence in Australia, Belgium, Germany, New Zealand, Spain and the United Kingdom yields the conclusion that the practical consequences of deprivation of nationality are generally key to the assessment whether that act amounts to persecution (rather than mere discrimination).^[197] Therefore, ‘courts tend to focus on the effects or consequences of statelessness on the person (eg, the denial of human rights through discriminatory acts) as these are easier to measure in terms of severity.’^[198] In line with such jurisprudence,^[199] some Australian decisions have accepted that the discrimination faced by an applicant as a result of being stateless in the country of former habitual residence was sufficient to amount to persecution.^[200] In other cases, however, the discrimination faced by stateless persons in the country of former habitual residence together with the cumulative

effect of the applicant’s individual circumstances were considered to

constitute persecution.^[201]

Some decision-makers have sensibly considered the extent to which the discrimination faced by the applicant is linked to both the applicant’s ethnicity and statelessness,^[202] enabling a more nuanced understanding of the link between the discrimination faced by the applicant and the harm feared.^[203]

Persecution under the Refugee Convention must also relate to at least one of the five nominated grounds. In this respect, Australian decisions in which stateless persons have been found to be refugees on account of circumstances related to their statelessness (either solely or cumulatively) have relied upon:

1 Membership of a particular social group (eg, Bidoon in Iraq without documentation);^[204]

2 Imputed political opinion (eg, young Palestinian male in Lebanon);^[205]

3 Nationality (eg, Palestinian: attribution of a nationality for the purpose of self-identification, or identification by other groups, as a motivation for persecution);^[206]

4 Race (ethnicity) (eg, stateless Rohingya^[207] or Faili Kurd).^[208]

There are also decisions in which protection has been refused, such as where the applicant’s personal circumstances meant that the discrimination faced in the country of former habitual residence as a stateless person was not considered to amount to persecution.^[209] Protection has also been denied to applicants who were found to be stateless, but whose claims were considered to lack credibility as to the harm feared in the country of former

habitual residence.^[210]

In sum, while the refugee protection regime is currently an important source of protection for stateless persons in Australia, significant gaps remain for two key reasons. The first is that there are inherent limitations in the terms of the refugee definition itself. The second is that, to date, there has been a lack of harmonisation between the interpretation of the refugee definition, on the one hand, and the sophistication and evolution in the international community’s understanding of the causes and consequences of statelessness as a human rights issue, on the other.

D Complementary Protection

Australia’s complementary protection regime commenced on 24 March 2012,^[211] yet between that date and 21 August 2015 (the cut-off point for our study), there were no decisions in which an applicant was granted complementary protection for reasons of statelessness. Since many of the publicly available tribunal decisions found that the stateless asylum applicants were refugees, the complementary protection criteria were not considered.^[212] However, as Lambert has noted, human rights law may provide a different lens for assessing the risk of harm if a person is removed. For example, the United Kingdom Asylum and Immigration Tribunal has made clear that under human rights law, ‘the issue of whether there would be serious obstacles to re-admission must remain central to the question of whether there is a real risk of serious harm.’^[213]

Of the remaining reported decisions, the applicant was either found not to be credible,^[214] or the harm feared was considered of insufficient gravity either to meet the threshold of persecution (required for refugee status pursuant to s 36(2)(a)) or ‘significant harm’ (required for complementary protection pursuant to s 36(2)(aa)) in the Migration Act.^[215]

The Department of Immigration and Border Protection’s report on asylum trends from 2012–13 states that seven stateless applicants (who were classified as IMAs) were granted protection on complementary protection grounds (either by the initial departmental decision-maker or following review).^[216] According to the same report, no stateless applicants who arrived by

plane (classified as non-IMAs) during that period were granted

complementary protection.^[217]

This indicates that, while the complementary protection regime may operate as a vital safety net for a handful of applicants who are found to meet its criteria, it is far from an adequate basis of protection for stateless persons in need of international protection.

E Ministerial Intervention: Sections 351, 417 and 501J of the Migration Act

If a stateless applicant does not satisfy the requirements of s 36 of the Migration Act for protection, the Minister retains a personal, non-compellable and non-reviewable discretion to grant the applicant a visa where he or she deems it to be in the public interest. Thus, pursuant to ss 351, 417 and 501J, the Minister can substitute a negative decision by the tribunal with one that favours the applicant.

The term ‘public interest’ is not defined in the Migration Act.^[218] However, the Department’s website gives seven examples as guidance on ‘the types of unique or exceptional circumstances [the Minister] wants us to refer to him’ with regard to intervention requests.^[219] The example most relevant to stateless applicants is that ‘[c]ircumstances outside your control mean you cannot go back to your country of citizenship or to the country you usually live in.’^[220] Others that could be relevant include ‘[c]ircumstances that bring Australia’s obligations as a party to the Convention on the Rights of the Child into consideration’ and ‘[c]ompassionate circumstances due to your age, health or your psychological condition that mean you would suffer irreparable harm and continuing hardship if you left Australia.’^[221]

While it is important that such a discretion remains in place to provide the possibility for protection of those in need, it is widely understood that such a discretionary regime is not an adequate basis on which to implement international obligations, such as those in the 1954 Convention.^[222] Indeed, a 2015 report written for the UNHCR in relation to Canada noted that ‘it is difficult to foresee how Canada can meet its international human rights obligations towards stateless persons without establishing a determination procedure or mechanism that identifies them.’^[223]

F Detention or Removal Pending Bridging Visa

Where stateless persons are found not to qualify as refugees or beneficiaries of complementary protection, or do not succeed in obtaining Ministerial intervention, then prolonged indefinite detention, to which the person may have already been subjected throughout the application process, can become a long-term prospect. In Al-Kateb v Godwin,^[224] Mr Al-Kateb was unable to be released from detention because his claim for protection under the Refugee Convention had been rejected and, as a stateless Palestinian born in Kuwait, there was no visa category available to him, nor any country to which he could return or be returned.^[225] The High Court held, as a matter of statutory construction, that the Migration Act effectively authorised the indefinite detention of a person who was unlawfully present in Australia (that is, not in possession of a valid visa) and who could not be removed, even if that detention may not realistically come to an end. The majority found that this was not unconstitutional because, in its view, such detention was administrative, not punitive, in nature. There was considerable public outcry about the implications of this finding. After eventually being allowed to live in the community on a series of short-term bridging visas, in 2007 Mr Al-Kateb was granted a Permanent Visa following Ministerial intervention.^[226] However, the broader systemic problem remains: stateless persons who are unsuccessful in their asylum applications may be detained indefinitely because there is no country to which they can return or be returned. Yet detention of stateless persons on account of their statelessness is contrary to the prohibition on arbitrary detention in international law.^[227]

While it is not possible to identify length of detention based on nationality in recent statistics, it is clear that without a dedicated visa pathway, stateless persons in Australia are at risk of very prolonged detention, as recognised by a 2012 Australian Human Rights Commission report.^[228] It reported that ‘[a]s at 15 May 2012, there were 555 people in closed [immigration] detention in Australia who identified as being stateless, 114 of whom had been detained for over 540 days.’^[229] A perusal of the Commonwealth and Immigration Ombudsman individual reports to Parliament in relation to non-citizens who have been in immigration detention for more than two years reveals many stateless persons being detained for prolonged periods, some for more than three years.^[230] This is exemplified by the recent case of SZUNZ v Minister for Immigration and Border Protection,^[231] in which a stateless applicant had been in detention for over five years.

The Removal Pending Bridging Visa (‘RPBV’) (Bridging R, Class WR) was introduced following the High Court’s decision in Al-Kateb v Godwin^[232] in order to enable the release of detainees ‘who have been cooperating with efforts to remove them from Australia, but whose removal is not reasonably practicable at that time.’^[233] It can be granted by the Minister pursuant to s 195A of the Migration Act.^[234] A detainee cannot initiate an application, but must be invited to do so by the Minister.^[235] All applicants must meet the relevant character and security requirements before it can be granted. Key concerns with the RPBV are that an applicant cannot initiate the application, the grant is discretionary (and practice has been inconsistent), the benefits available are less extensive than those available to holders of protection visas,^[236] and conditions are onerous.^[237] In short, this visa does not provide a secure legal status as required by the 1954 Convention and hence does not provide a mechanism through which Australia’s international obligations to stateless persons can be fulfilled.

VI THE NEED FOR A STATELESSNESS STATUS DETERMINATION PROCEDURE IN AUSTRALIA

The analysis above of the inadequacy of domestic legal protection for stateless persons in Australia suggests that the introduction of a specific status determination procedure — supported by a legislative framework — is necessary.^[238] This would improve Australia’s ability to respect its obligations under the 1954 Convention. In particular, it would meet two core objectives, namely, to provide a dedicated procedure to accurately and effectively identify stateless persons, and to confer an established status which accords basic rights and the potential for naturalisation to stateless persons in accordance with international law.

There are several reasons why a legislative procedure is necessary to implement these obligations. First, the introduction of a specific procedure would ensure fairness, transparency and clarity with respect to statelessness determinations.^[239] It is well understood that to be effective, international obligations must be enshrined in law, not left to discretionary or non-compellable processes.^[240] At present, as discussed above, there is a lack of clarity in both guidelines and case law regarding the core questions pertinent to the assessment of whether a person is stateless. The introduction of a specific protection regime for stateless persons would focus attention on the definition in art 1 of the 1954 Convention, and encourage Australian decision-makers both to draw on, and contribute to, a nascent but developing body of international jurisprudence on its interpretation.^[241] Second, as observed by the UNHCR, ‘the identification of statelessness can help prevent statelessness by revealing the root causes and new trends in statelessness.’^[242] Third, the introduction of a determination procedure would assist the Australian government to ‘assess the size and profile’ of stateless persons in Australia and thus the government services required to support them.^[243] Fourth, there is a pragmatic incentive: by identifying stateless persons at an early stage, costs could be saved on unnecessary detention^[244] (in terms of both the cost of detention itself, and that of the psychological counselling that is frequently necessary for people who have been in prolonged detention).^[245] This would simultaneously avoid violations of Australia’s international obligations with respect to arbitrary detention.

As noted above, although the 1954 Convention does not set out a procedure for determining who is stateless, a dedicated mechanism is crucial to identify who is owed the rights and entitlements provided for in that treaty, and thus ensure that states fulfil their protection obligations under that instrument.^[246] Indeed, the Inter-American Court of Human Rights has interpreted that treaty as necessarily involving a ‘duty to identify ... as well as protect’ stateless persons,^[247] also noting the importance of determining statelessness beyond the refugee context.^[248]

In recent years, there has been a marked increase in the number of states that have adopted a domestic procedure for statelessness status determination.^[249] At least 15 states have some kind of process in place,^[250] while several others have signalled their intention to create one.^[251] The UNHCR’s goal is that 70 states will have a statelessness status determination procedure in

place by 2024.^[252]

While these models vary, ‘best practice’ guidance is provided by the UNHCR’s Handbook on Protection of Stateless Persons^[253] and the European Network on Statelessness’s Guidelines on Good Practices.^[254] These set out practical guidance that accords with international standards to assist states to create principled, effective domestic procedures that accord with the terms and objectives of the 1954 Convention. Below we outline some key features that any Australian model should incorporate.

A Single Procedure

Statelessness status determination in Australia should form part of a single asylum procedure.^[255] Just as decision-makers first assess applicants against the refugee criteria (s 36(2)(a) of the Migration Act), and then (if found not to be a refugee) against the complementary protection grounds (s 36(2)(aa)), the final step (if the person is neither a refugee nor found to be in need of complementary protection) would be to assess the claim against the statelessness criteria. This preserves the primacy of Australia’s obligations under the Refugee Convention, and also ensures that a stateless person who fears persecution or other serious harm is not brought to the attention of the authorities of his or her government through investigations into his or her nationality.^[256] Such a process would provide a streamlined, efficient and workable means of assessing whether a person is stateless, and would not require the creation of any new institutional machinery. It would also build on the existing relevant expertise and knowledge of asylum decision-makers.^[257]

B Access

Any individual in a state’s territory should have access to a statelessness status determination procedure, regardless of whether he or she is ‘lawfully present’.^[258] Indeed, in light of the difficulties often experienced by stateless persons in obtaining appropriate entry documentation, such a requirement would be particularly burdensome.^[259]

There is no basis in the 1954 Convention for setting time limits for individuals to claim protection as a stateless person.^[260] Further, like refugee and complementary protection claims, stateless status determinations should be subject to independent merits and judicial review.^[261] Other procedural safeguards should include access to information (in various languages) about eligibility criteria, the procedure and possible outcomes; the right to an interview with a decision-maker; assistance with preparing and presenting applications, including access to legal assistance and interpreters/translators; the right to confidentiality and data protection; and written reasons for decisions, communicated within a reasonable time.^[262] Individuals should not be removed prior to a final determination (including appeals).^[263]

C Evidentiary Requirements

In light of the challenges many individuals face in demonstrating that they meet the ‘stateless person’ definition, including access to evidence and documentation, applicants should not bear the sole responsibility for establishing the relevant facts.^[264] Rather, this burden should be shared by the applicant and the decision-making authority.^[265] That authority must identify which authorities in the relevant third state are competent to establish nationality,^[266] and the weight to be attached to the response or lack of response from the state in question.^[267] For instance, a state may not feel any accountability for indicating that a person does not have a bond of nationality, and a refusal to acknowledge that someone is a national might itself be evidence that the person is not.^[268] Decision-makers must consider not only the nationality law of a given state, but also the practice in that state with respect to conferral of nationality.^[269] As noted above, requests for information from a third state should only occur after it has been determined that a person is not at risk of persecution or other serious harm.^[270]

Given the practical difficulties of an applicant being able to prove that he or she is stateless, and in light of the protection-oriented objective of the procedure (notably, the risk if a claim is incorrectly rejected), the UNHCR recommends that ‘a finding of statelessness would be warranted where it is established to a “reasonable degree” that an individual is not considered as a national by any State under the operation of its law.’^[271]

Since it would be virtually impossible for an applicant to demonstrate that none of the world’s 200 states considers him or her to be a national, it would only be necessary to consider states with which he or she has a relevant link (for example, birth, descent, marriage or habitual residence).^[272] As Batchelor notes, ‘[p]roving statelessness is like establishing a negative. The individual must demonstrate something that is not there.’^[273] The authors concur with McAdam’s contention that:

where an individual can show, on the basis of all reasonably available evidence, that he or she is not a national of a particular country, then the burden

should shift to Australia to prove that the individual is a national of a

particular country.^[274]

Relevant evidence in this context includes evidence relating to the applicant’s personal circumstances, and evidence concerning the laws and other circumstances in the country in question.^[275]

D Role of the UNHCR

It is recommended that the UNHCR be granted special rights in the statelessness determination procedure, given its expert knowledge and its ability to facilitate inquiries between states.^[276] The UNHCR may be involved in the procedure in Hungary and Moldova, and to a lesser degree in the Philippines and Georgia.^[277] Hungarian law provides that a UNHCR representative may take part in any stage of the statelessness determination procedure, including that he or she:

(a) may be present at the applicant’s interview;

(b) may give administrative assistance to the applicant;

(c) may gain access to the documents/files of the procedure and may make copies thereof;

(d) shall be provided with the administrative decision and the court’s judgment by the alien policing authority.^[278]

E Children and Other Vulnerable Groups

The vulnerabilities of unaccompanied minors, persons with disabilities, survivors of sexual and gender-based violence or any other vulnerable groups must be specifically considered by decision-makers, and in such cases the decision-maker should assume a greater share of the burden of proof.^[279] As McAdam notes, unaccompanied minors should ‘be granted an ex officio, independent guardian throughout the determination process’ to assist with their claim, as is the case in Hungary.^[280] Children who arrive with their parents may also be stateless. It is important that their claims are properly assessed rather than automatically subsumed within their parents’, especially if their own claim is stronger.^[281]

F Legal Status, Rights and Entitlements

Stateless persons are entitled to the rights set out in the 1954 Convention, as well as general protections under international human rights law.^[282] As explained above, the 1954 Convention affords an almost identical legal status to stateless persons as provided by the Refugee Convention.^[283] In light of these international standards, and mindful of the structure of the Australian asylum system, stateless persons should be accorded the same legal status as refugees and beneficiaries of complementary protection, and their family members should be granted derivative status.^[284] They should be granted permanent protection visas that provide for the possibility of naturalisation, in accordance with art 32 of the 1954 Convention.^[285]

Indeed, as the Australian government noted in the complementary

protection context:

our view is that all persons recognised to be in need of international protection should benefit from similar basic civil, political, economic and social rights as those afforded to refugees and that their need for protection can be as long

in duration.^[286]

Accordingly, an identical status should be granted to stateless persons. As McAdam notes, ‘[t]his approach is also consistent with the Government’s visa rationalisation programme’,^[287] and reduces the chances of people appealing their status.

Finally, the 1954 Convention does not permit states to exclude persons from recognition as stateless persons simply because they have given up their nationality voluntarily. However, while the matter of free choice is irrelevant to determining eligibility, it may ‘be pertinent to the matter of the treatment received thereafter’, since they may be able to reacquire that nationality.^[288] In the unlikely event that a person were to voluntarily renounce his or her nationality solely for the purpose of claiming protection as a stateless person in Australia,^[289] ‘the legislation could stipulate that protection would not be forthcoming if the individual could recover his or her former nationality within a reasonable period of time.’^[290] McAdam suggests that:

What is considered ‘reasonable’ will depend on all the circumstances of the case, including whether or not [the applicant] is in immigration detention (and if [the applicant] is, then a shorter timeframe is appropriate), whether nationality can be automatically reacquired, the circumstances in which the person will live pending that determination, and so on.^[291]

In some cases, whether or not renunciation was, in fact, ‘voluntary’ would need to be very carefully scrutinised.

VII CONCLUSION

In this article, we have begun the process of highlighting the predicament and protection needs of stateless persons in Australia. As a traditionally overlooked and radically under-explored phenomenon, there is very little information about the numbers of stateless persons who have arrived in Australia, and little by way of academic research or scholarship exploring their plight. Despite ratifying the core treaties decades ago, Australia continues to fail to respond to the protection needs of stateless persons who arrive in Australia. While many stateless persons undoubtedly benefit from protection in Australian law pursuant to the Refugee Convention, this is not the solution

for all stateless persons since statelessness on its own is not a ground for

refugee protection.

As the former UN High Commissioner for Refugees, António Guterres, has observed, ‘[s]tatelessness is a profound violation of an individual’s human rights.’^[292] In this article, we have highlighted the importance of greater understanding and awareness of stateless persons in Australia, especially as a human rights issue, and have identified the need for a comprehensive mapping exercise. Most importantly, however, we have explained why Australia should adopt a dedicated procedure for the identification and conferral of legal status on stateless persons in Australia. As Guterres has also said, it is ‘deeply unethical to perpetuate the pain [statelessness] causes when solutions are so clearly within reach.’^[293] The creation of a statelessness status determination procedure to provide stateless persons in Australia with a legal status is one such solution.

^[*] LLB, BCom (Hons) (UNSW), LLM, SJD (Mich); Professor and Director, International Refugee Law Research Programme, Institute for International Law and the Humanities, Melbourne Law School, The University of Melbourne. We are very grateful to the Melbourne Law School Law Research Service, especially Amy Frew, Andrew Butler and Robin Gardner, for undertaking excellent initial research, and to Minh-Quan Nguyen for excellent editorial assistance. We also acknowledge the work of Adrienne Anderson, Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, Faculty of Law, UNSW Sydney, who provided high quality, accurate and efficient research assistance. We are also grateful for insightful feedback from Radha Govil, Legal Officer, Statelessness Section, UNHCR, Geneva, on an earlier draft, and to participants at the Workshop on Researching Statelessness and Citizenship, Melbourne Law School, January 2016, co-hosted by The University of Melbourne (Melbourne School of Government and Melbourne Law School) and the UNHCR, at which some of the ideas in this article were presented. We thank the three anonymous reviewers who provided very helpful feedback. Any errors or omissions remain, of course,

our own.

^[†] BA (Hons), LLB (Hons) (Syd), DPhil (Oxf); Scientia Professor and Director, Andrew & Renata Kaldor Centre for International Refugee Law, Faculty of Law, UNSW Sydney.

^[‡] LLB (UQ); Independent Consultant on Statelessness and Migration; Solicitor of the Supreme Court of Queensland; Registered Migration Agent.

^[1] Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10 International Journal of Refugee Law 156, 181–2.

^[2] See, eg, Guy S Goodwin Gill, ‘The Rights of Refugees and Stateless Persons’ in K P Saksena (ed), Human Rights: Perspectives and Challenges (in 1900’s and Beyond) (Lancers Books, 1994) 378, 389–90; Guy S Goodwin-Gill, Introductory Note: Convention Relating to the Status of Stateless Persons (2017) United Nations Audiovisual Library of International Law <http://legal.un.org/avl/ha/cssp/cssp.html> . For a thorough overview of the history of the interrelationship between the protection of refugees and stateless persons at international law see Michelle Foster and Hélène Lambert, International Refugee Law and the Protection of Stateless Persons (Oxford University Press, forthcoming).

^[3] United Nations Commission on Human Rights, Report of the Commission on Human Rights: Second Session, UN ESCOR, 2^nd sess, UN Doc E/600 (17 December 1947) 16 [46].

^[4] ESC Res 116 (VI) (D), UN ESCOR, 6^th sess, UN Doc E/777 (12 March 1948, adopted

1–2 March 1948) 18.

^[5] A Study of Statelessness, UN Docs E/1112, E/1112/Add.1 (August 1949).

^[6] ESC Res 248 (IX) (B), UN ESCOR, 9^th sess, Supp No 1, UN Doc E/1553/Corr.1 (8 December 1949, adopted 8 August 1949) 60.

^[7] See James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2^nd ed, 2014) 64–5.

^[8] See the analysis in Goodwin-Gill, Introductory Note: Convention Relating to the Status of Stateless Persons, above n 2.

^[9] We acknowledge that the UN High Commissioner for Refugees has not always had responsibility for de jure stateless persons. Unlike the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), the Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960) does not repose supervisory authority in the UN High Commissioner for Refugees. However, in 1995 it was given such responsibility via a General Assembly resolution: see generally Mark Manly, ‘UNHCR’s Mandate and Activities to Address Statelessness’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press, 2014) 88.

^[10] See Laura van Waas, ‘“Are We There Yet?” The Emergence of Statelessness on the International Human Rights Agenda’ (2014) 32 Netherlands Quarterly of Human Rights 342, who notes that ‘[w]hile even a decade ago it was not easy to find much in the way of resources or analysis on statelessness, research projects and academic writing on statelessness has mushroomed’: at 345.

^[11] Mark Manly and Laura van Waas, ‘The State of Statelessness Research: A Human Rights Imperative’ (2014) 19 Tilburg Law Review 3, 3.

^[12] See below Part III.

^[13] A thorough literature search revealed only three publications. Christopher Richter’s article from 2005 focuses very much on the potential for a complementary protection regime to protect stateless persons: Christopher Richter, ‘Statelessness in Australian Refugee Law: The (Renewed) Case for Complementary Protection’ [2005] UQLawJl 32; (2005) 24 University of Queensland Law Journal 545. The other two publications are Susan Kennedy, ‘Statelessness Matters 10 Years on from Al-Kateb: Statelessness in the Australian Context,’ (2014) 1(1) IAFOR Journal of Politics, Economics and Law <http://iafor.org/archives/journals/journal-of-politics/Statelessness-matters.pdf> , which considers ‘how concepts about stateless communities might develop within the Refugee and Migration Review Tribunals’;

Equal Rights Trust, Unravelling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons (2010) 110–39 <http://www.equalrightstrust.org/ertdocumentbank/ UNRAVELLING%20ANOMALY%20small%20file.pdf> , which discusses the detention of stateless persons in Australia. For an interesting account of statelessness as a ‘forgotten human rights crisis’, see generally Lindsey N Kingston, ‘“A Forgotten Human Rights Crisis”: Statelessness and Issue (Non)Emergence’ (2013) 14 Human Rights Review 73.

^[14] UNHCR, Pledges 2011: Ministerial Intergovernmental Event on Refugees and Stateless Persons (Geneva, Palais des Nations, 7–8 December 2011) (2012) 49. The government also foreshadowed such a procedure when it introduced the Migration Amendment (Complementary Protection) Bill 2009 (Cth) into Parliament, and in late 2010 when it released an issues paper affirming the need for such a procedure: see Commonwealth, Parliamentary Debates, House of Representatives, 9 September 2009, 8991–2 (Laurie Ferguson); Onshore Protection Consultative Group, ‘Statelessness’ (10 November 2010); Onshore Protection Consultative Group, ‘Statelessness: Extract of Issues Paper’ (4 November 2010).

^[15] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.

^[16] Plaintiff B9/2014 v Minister for Immigration [2014] FCCA 2348 (15 October 2014), affd [2014] FCAFC 178; (2014) 227 FCR 494. See also Nick Olle, ‘The Law and the Little Boy’, The Global

Mail (online), 11 December 2013 <https://law.anu.edu.au/sites/all/files/coast/ the_law_and_the_little_boy_the_global_mail.pdf>.

^[17] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

^[18] Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960).

^[19] States also have international protection obligations under human rights treaties, such as the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). However, as their full titles indicate, the Refugee Convention and the 1954 Convention are the two international treaties to set out a specific legal status for their beneficiaries.

^[20] The 1954 Convention also sets out the basic principles underpinning the application of the treaty (arts 2–11), and sets out the rights and entitlements of stateless persons (arts 12–32). Although it currently has only 89 states parties, the UNHCR argues that it also codifies the customary international law definition, citing the International Law Commission: see UNHCR, Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons (2014) 9 [13]. For analysis of the definition, see

at 9–23 [13]–[56].

^[21] Carol A Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (1995) 7 International Journal of Refugee Law 232, 232.

^[22] As observed by Laura van Waas, ‘The UN Statelessness Conventions’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press, 2014) 64, 72.

^[23] Carol Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization’ (2005) 22(2) Refuge 31, 36, 52 n 1. See also the International Court of Justice in Nottebohm (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4, 23: ‘nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties’.

^[24] While this is a very common practice, Weis explains that they in fact emphasise ‘two different aspects of the same notion: State membership. “Nationality” stresses the international, “citizenship” the national, municipal, aspect’: P Weis, Nationality and Statelessness in International Law (Sijthoff and Noordhoff, 2^nd ed, 1979) 4–5.

^[25] See Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’, above n 1, 169; Hélène Lambert, Refugee Status, Arbitrary Deprivation of Nationality, and Statelessness within the Context of Article 1A(2) of the 1951 Convention and Its 1967 Protocol Relating to the Status of Refugees, UN Doc PPLA/2014/01 (October 2014) 6 (‘Refugee Status’).

^[26] Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975).

^[27] Ibid art 1. See generally Johannes M M Chan, ‘The Right to a Nationality as a Human Right: The Current Trend towards Recognition’ (1991) 12 Human Rights Law Journal 1, 10–11.

^[28] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) art 15(1).

^[29] ICCPR art 24(3) provides that ‘[e]very child has the right to acquire a nationality.’ This does not necessarily require states to grant nationality to every child born in their territory, since they may have the right to another nationality, but it does require them to confer nationality on children who would otherwise be stateless: Human Rights Committee, ‘General Comment No 17: Article 24 (Rights of the Child)’ in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.9 (27 May 2008) vol 1, 193, 195 [8]; Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 3^rd ed, 2013) 726. See also Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 7; UNHCR, Guidelines on Statelessness No 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1–4 of the 1961 Convention on the Reduction of Statelessness, UN Doc HCR/GS/12/04 (21 December 2012) (‘Guidelines on Statelessness No 4’).

^[30] To not be arbitrary, such deprivation must conform with domestic law and comply with both ‘procedural and substantive standards of international human rights law’: Refugee Status, UN Doc PPLA/2014/01, 9.

^[31] Convention on Certain Questions Relating to the Conflict of Nationality Laws, opened for signature 12 April [1937] LNTSer 109; 1930, 179 LNTS 89 (entered into force 1 July 1937).

^[32] Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’, above n 1, 168.

^[33] UNHCR, Ending Statelessness (2017) <http://www.unhcr.org/pages/49c3646c155.html> UNHCR, Global Trends: Forced Displacement in 2015 (2016) 2.

^[34] ‘Annex’ (2014) 14 UNHCR Statistical Yearbook 79, 83. This shows that the Asia-Pacific accounts for about 1.5 million of the 3.5 million stateless persons accounted for in government data submitted to the UNHCR. The 10 million figure is a broad overall estimate, whereas the 3.5 million figure reflects what has been reported in data submitted to the UNHCR.

^[35] UNHCR, Global Action Plan to End Statelessness 2014–24 (2014) 24.

^[36] UNHCR, ‘UNHCR Launches Campaign to Combat Statelessness’ (Press Release, 25 August 2011) <http://www.unhcr.org/4e54e8e06.html> .

^[37] UNHCR, Handbook on Protection of Stateless Persons, above n 20, 1.

^[38] UNHCR, ‘Gender Equality, Nationality Laws and Statelessness 2014’ (Background Note, UNHCR, 7 March 2014) <http://www.unhcr.org/4f5886306.html> .

^[39] See generally Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia, 2008); Refugee Status, UN Doc PPLA/2014/01, 6, 14; Weis, above n 24, 115–34; UNHCR, ‘Gender Equality Background Note’, above n 38. On denationalisation see Matthew J Gibney, ‘The Deprivation of Citizenship in the United Kingdom: A Brief History’ (2014) 28 Journal of Immigration, Asylum and Nationality Law 326.

^[40] UNHCR, Self-Study Module on Statelessness (2012) 19.

^[41] Ibid 26–7.

^[42] Hannah Arendt, The Origins of Totalitarianism (Harcourt, Brace and Company, 1951) 294. See also Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (Oxford University Press, 2012).

^[43] Harry J Kits, ‘Betwixt and between: Refugees and Stateless Persons in Limbo’ (2005) 22(2) Refuge 3, 5.

^[44] UNHCR, Handbook on Protection of Stateless Persons, above n 20, 1. The important work of Lynch and Blitz has highlighted that many stateless persons effectively ‘struggle to exist’: Maureen Lynch and Brad K Blitz, ‘Summary and Conclusions’ in Brad K Blitz and Maureen Lynch (eds), Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality (Edward Elgar, 2011) 194, 195. However, it is acknowledged that the situation can vary widely: in South East Asia the situation is quite different as between Thailand, Brunei and Singapore on the one hand and Myanmar on the other. We are grateful to Nicholas Oakeshott for this insight.

^[45] See Kristy A Belton, ‘Statelessness: A Matter of Human Rights’ in Rhoda E

Howard-Hassmann and Margaret Walton-Roberts (eds), The Human Right to Citizenship: A Slippery Concept (University of Pennsylvania Press, 2015) 31, 36–40; Marilyn Achiron

and Radha Govil, Nationality and Statelessness: Handbook for Parliamentarians No 22

(Inter-Parliamentary Union/UNHCR, 2^nd ed, 2014) 3.

^[46] Sophie Nonnenmacher and Ryszard Cholewinski, ‘The Nexus between Statelessness and Migration’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press, 2014) 247, 254–6; Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’, above n 1, 159.

^[47] Nicole Green and Todd Pierce, ‘Combatting Statelessness: A Government Perspective’ (2009) 32 Forced Migration Review 34, 34; Achiron and Govil, above n 45, 5.

^[48] See, eg, UNHCR, I Am Here, I Belong: The Urgent Need to End Childhood Statelessness (UNHCR Division of International Protection, 2015); Jacqueline Bhabha (ed), Children without a State: A Global Human Rights Challenge (MIT Press, 2011); Guidelines on Statelessness No 4, UN Doc HCR/GS/12/04; Maureen Lynch and Melanie Teff, ‘Childhood Statelessness’ (2009) 32 Forced Migration Review 31.

^[49] UNHCR, I Am Here, I Belong, above n 48, 1.

^[50] Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime, Sixth Ministerial Conference of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (23 March 2016) 2 [4]. We thank Nicholas Oakeshott for this reference.

^[51] UNHCR, Handbook on Protection of Stateless Persons, above n 20, 25 [58]; see

also at 26 [59]–[60].

^[52] Report of the Ad Hoc Committee on Refugees and Stateless Persons, UN ESCOR, 1^st sess, UN Docs E/1618, E/AC.32/5 (17 February 1950).

^[53] Ibid annex III (Proposed Protocol Relating to the Status of Stateless Persons); Report of the Ad Hoc Committee on Refugees and Stateless Persons, UN ESCOR, 2^nd sess, UN Docs E/AC.32/8, E/1850 (25 August 1950) annex II (Draft Protocol Relating to the Status of Stateless Persons); Goodwin-Gill, Introductory Note: Convention Relating to the Status of Stateless Persons, above n 2; Goodwin Gill, ‘The Rights of Refugees and Stateless Persons’, above n 2, 381.

^[54] Draft Convention Relating to the Status of Refugees, GA Res 429 (V), UN GAOR, 5^th sess, 325^th plen mtg, UN Doc A/RES/429(V) (14 December 1950).

^[55] For the subsequent history, see Goodwin-Gill, Introductory Note: Convention Relating to the Status of Stateless Persons, above n 2.

^[56] Draft Protocol Relating to the Status of Stateless Persons, ESC Res 526A (XVII), UN ESCOR, 17^th sess, 784^th plen mtg, UN Doc E/RES/526(XVII) (26 April 1954).

^[57] Final Act of the United Nations Conference on the Status of Stateless Persons, 360 UNTS 117 (28 September 1954) 118.

^[58] The Drafting Committee comprised the President of the Conference and representatives of Australia, Belgium, Brazil, the Federal Republic of Germany, France, Israel and the United Kingdom: ibid 120.

^[59] UN Treaty Collection, 4. Convention on the Reduction of Statelessness, 1 <https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20V/V-4.en.pdf>.

^[60] Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

^[61] As at September 2016.

^[62] 1954 Convention Preamble.

^[63] UNHCR, Handbook on Protection of Stateless Persons, above n 20, 3 [3].

^[64] Recall that the Ad Hoc Committee prepared a draft protocol that in essence applied the provisions of the Refugee Convention mutatis mutandis to stateless persons: see above n 53 and accompanying text. Batchelor suggests that the drafters thought they were not authorised to make any additions to the draft protocol, and furthermore ‘that it would be wise not to try to amend the articles of the Geneva Convention, but to restrict itself to deciding whether or not to insert them in the instrument on the status of stateless persons’: Conference of Plenipotentiaries on the Status of Stateless Persons, Summary Record of the Fifth Meeting, UN Doc E/CONF.17/SR.5 (29 September 1954) 3, quoted in Batchelor, ‘Stateless Persons’, above n 21, 245.

^[65] See UNHCR, Handbook on Protection of Stateless Persons, above n 20, 46 [129]; 1954 Convention arts 12–32; Batchelor, ‘The 1954 Convention’, above n 23, 45–51.

^[66] There is a lower standard of treatment than the Refugee Convention with respect to freedom of association and the right to work (1954 Convention arts 15, 17), no equivalent guarantee against penalisation for illegal entry (cf Refugee Convention art 31) and a different scope of protection with respect to expulsion. See also Goodwin-Gill, Introductory Note: Convention Relating to the Status of Stateless Persons, above n 2; UNHCR, Handbook on Protection of Stateless Persons, above n 20, 46 [127]. For a detailed analysis of the provisions of the treaty see van Waas, Nationality Matters, above n 39.

^[67] This was because, as the drafting history reveals, the drafters thought that art 33 of the Refugee Convention was ‘an expression of the generally accepted principle’. In the Final Act of the United Nations Conference on the Status of Stateless Persons, 360 UNTS 117 (28 September 1954) 118, 122, 124, the drafters provided:

Being of the opinion that Article 33 of the Convention Relating to the Status of Refugees of 1951 is an expression of the generally accepted principle that no State should expel or return a person in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion, [have] not found it necessary to include in the Convention Relating to the Status of Stateless Persons an article equivalent to Article 33 of the Convention Relating to the Status of Refugees of 1951.

^[68] See Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) art 15; ICCPR art 24(3); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969) art 5(d)(iii); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) art 9; Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 18; Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 7. See also the ‘Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons’: Executive Committee of the High Commissioner’s Programme, Report of the Fifty-Seventh Session of the Executive Committee of the High Commissioner’s Programme, UN GAOR, 57^th sess, Agenda Item 14, UN Doc A/AC.96/1035 (10 October 2016) 13–17 [18] (‘Report of the Fifty-Seventh Session’); van Waas, Nationality Matters, above n 39, 395–8.

^[69] Report of the Fifty-Seventh Session, UN Doc A/AC.96/1035, 13–17 [18].

^[70] Ibid 17 [18] para (w).

^[71] Tamás Molnár, ‘Remembering The Forgotten: International Legal Regime Protecting the Stateless Persons — Stocktaking and New Tendencies’ (2014) 11 US-China Law Review 822, 825.

^[72] UNHCR, Pledges 2011, above n 14, 12, 32–3.

^[73] Australia’s inaction is also in stark contrast to the efforts by other states. Twenty-two of the states in attendance at the 2011 Ministerial meeting have fulfilled their pledges and 10 states have taken other actions towards addressing statelessness, even though such actions were not contained in any pledge: see UNHCR, State Action on Statelessness <http://web.archive.org/web/20150905202236/http://www.unhcr.org/pages/4ff2bdff6.html> .

^[74] UNHCR, Pledges 2011, above n 14, 49. Additionally, the Australian delegate to the UNHCR Standing Committee on 22 June 2011 had pledged to the UNHCR that Australia would develop a process for identifying and registering stateless persons in order to adhere to its obligations pursuant to the 1954 Convention: Refugee Council of Australia, Australia’s Statelessness Status Determination Procedure, 1, 1 n 1 <http://www.refugeecouncil.org.au/r/s & l/120600-SSD.pdf> .

^[75] This was explained by the Department of Immigration and Citizenship (Cth) at a meeting of the Onshore Protection Consultative Group on 16 November 2011.

^[76] Onshore Protection Consultative Group, ‘Statelessness Status Determination Briefing Paper’ (16 November 2011). The change in direction followed the appointment of a new Immigration Minister, although this was never formally cited as the reason for the volte-face.

^[77] Tarek Abou Chabake, ‘Presentation’ (Paper Presented at the Workshop on Researching Statelessness and Citizenship in Asia and the Pacific, Melbourne Law School, January 2016).

^[78] Equal Rights Trust, above n 13, 112. Subsequent annual reports (since 2010) have continued this trend.

^[79] UNHCR, Global Action Plan, above n 35, 24, 7.

^[80] Batchelor, ‘The 1954 Convention’, above n 23, 40.

^[81] Department of Immigration and Border Protection (Cth), Asylum Trends: Australia —

2012–13 Annual Publication (2013). It defines a stateless person as ‘an individual who self identifies as stateless, who lacks identity as a national of a state for the purpose of law and is not entitled to the rights, benefits, or protection ordinarily available to a country’s nationals’: at 36. The Department’s most recent publication with regard to humanitarian arrivals to Australia does not provide any statistics or information in relation to stateless refugee populations in Australia: Department of Immigration and Border Protection (Cth), Australia’s Offshore Humanitarian Programme: 2013–14 (2014).

^[82] This is likely due in large part to the fact that processing of applications for protection visas was suspended from the Expert Panel’s report in 2012. While it has recently recommenced, the ‘fast track’ system is still in its early days. As at 31 January 2016, 28 705 asylum seekers were living in the community after being granted a Bridging Visa E: Department of Immigration and Border Protection (Cth)/Australian Border Force, Immigration Detention and Community Statistics Summary (31 January 2016) 4. There is no information publicly available as to the number of asylum seekers in this group that are stateless. As at 30 June 2015 there were approximately 2702 persons who the Department classified as stateless, who had been granted the Bridging Visa E: Australian Border Force, Illegal Maritime Arrivals on Bridging E Visas, June 2015 <http://www.border.gov.au/ReportsandPublications/Documents/ statistics/ima-bve-June-15.pdf> .

^[83] Department of Immigration and Border Protection (Cth), Asylum Trends, above n 81, 24.

^[84] Ibid.

^[85] Ibid.