The protection of stateless persons in Australian law: the rationale for a statelessness determination procedure.

• Jurisdiction: Australia
• Author: Foster, Michelle
• Date: 01 January 2017

CONTENTS I Introduction II Background and Context: What is Statelessness and Why Does it Matter? III The International Legal Framework and Australia's Obligations IV The Extent of Statelessness in Australia V The Protection of Stateless Persons in Australia A Protection for Stateless Persons Pursuant to the Refugee Convention 1 Statelessness Per Se as a Basis for Refugee Status? 2 Assessing Whether a Person is Stateless B How is the 'Country of Former Habitual Residence' Determined? C Statelessness and Well-Founded Fear of Persecution D Complementary Protection E Ministerial Intervention: Sections 351, 417 and 501J of the Migration Act F Detention or Removal Pending Bridging Visa VI The Need for a Statelessness Status Determination Procedure in Australia A Single Procedure B Access C Evidentiary Requirements D Role of the UNHCR E Children and Other Vulnerable Groups F Legal Status, Rights and Entitlements VII Conclusion 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...