2016]
The Protection of Stateless Persons in Australian Law
453
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
281
Ibid [36]; UNHCR, Handbook on Protection of Stateless Persons, above n 20, 28–9 [71].
282
Like refugee status, recognition that a person is stateless is declaratory, not constitutive, in
nature: UNHCR, Geneva Conclusions, above n 136, 6 [21].
283
See above Part III. However, there are several differences, as noted in above n 66.
284
McAdam, ‘Position Paper’, above n 238, 9 [43]. As the Department has observed, this can
‘avoid potential adverse effects on the family unit’: Department of Immigration and Citizenship (Cth), Draft Complementary Protection Visa Model (October 2008) 4.
285
Article 32 provides: ‘The Contracting States shall as far as possible facilitate the assimilation
and naturalization of stateless persons. They shall in particular make every effort to expedite
naturalization proceedings and to reduce as far as possible the charges and costs of such
proceedings’. See also UNHCR, Handbook on Protection of Stateless Persons, above n 20,
53 [148]. Submissions made to Parliament about the rationale for granting refugees and
beneficiaries of complementary protection the same status, which apply analogously here, are
also relevant: Michelle Foster and Jason Pobjoy, Submission No 9 to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Complementary Protection) Bill 2009, 28 September 2009, 5–12; Jane McAdam, Submission No 21 to
Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration
Amendment (Complementary Protection) Bill 2009, 28 September 2009, 2–3 [1]–[2], 5 [8].
286
Department of Immigration and Citizenship (Cth), Draft Complementary Protection Visa
Model, above n 284, 6, quoted in McAdam, ‘Position Paper’, above n 238, 9 [41].