2016]
The Protection of Stateless Persons in Australian Law
423
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
108
The key exception is Refugee Status, UN Doc PPLA/2014/01.
109
Department of Immigration and Border Protection (Cth), PAM3, above n 93. See also
Minister for Immigration and Border Protection (Cth), Direction [No 56] — Consideration of
Protection Visa Applications, 21 June 2013, which was issued pursuant to s 499(1) of the
Migration Act, and enables the Minister to ‘give written directions to a person or body having
functions or powers under this Act if the directions are about: (a) the performance of those
functions; or (b) the exercise of those powers.’
110
The Refugee Review Tribunal has since been subsumed into the Administrative Appeals
Tribunal (‘AAT’) as a special division.
111
The decisions listed below are not an exhaustive list of the decisions relevant to each issue,
but rather a sampling of decisions.
112
See above nn 92–3 and accompanying text.
113
The proportion of cases publicly available has changed over time and has been most recently
reported to be approximately 40 per cent of all decisions before the RRT. However, at earlier
stages it was much lower. Further, there is not a clear methodology for determining which
cases are made publicly available. It is unclear what proportion of the decisions by the AAT’s
Migration and Refugee Division will be made available.
114
Additionally, since a search on the term ‘stateless’ returns the vast majority of reported
protection decisions on the Australasian Legal Information Institute (‘AustLII’) (as most cite