concluded that even a stateless person who is unable to return to the country of his former
habitual residence has to show a well-founded fear of persecution for a 1951 Convention
reason. The case of Diatlov involved an ethnic Russian who was born in the former Soviet
Union but outside the borders of Estonia, and who had lived in Estonia for most of his life.
His claim for refugee status (based on persecution on ground of ethnicity in Estonia, his
ineligibility to live in Russia, and his inability to obtain Estonian citizenship) was refused.
Diatlov is authority for a reading of Article 1A(2) of the Refugee Convention that for a
person without a nationality to come within the definition of a refugee, such a person must
satisfy two cumulative conditions: one, he must be outside his country of residence owing to
a well-founded fear of being persecuted on specific grounds; two, he must be unable to
return to that country, or owing to such fear be unwilling to return to it. Thus, the fear of
being persecuted is an essential element of the definition; it is ‘the talisman of the
definition’.230 This element applies to both categories of persons to whom the definition is
directed: those with a nationality and stateless persons.
The Federal Magistrates Court of Australia examined the issue of returnability in DZABG v
Minister for Immigration & Anor,231 a case concerning a Kuwaiti Bidoon who claimed to be a
stateless person and requested refugee status upon his arrival on Christmas Island. The
Court found the applicant to be a documented Bidoon because he had left Kuwait on a form
of passport delivered by the Kuwaiti authorities.232 However, following the destruction of
his travel document and the inability to replace it, the crucial question arose as to whether
the prospect of the applicant being refused re-entry to Kuwait could amount to persecution.
The court accepted that many Bidoons are subject to systematic discrimination within
Kuwait arising from their lack of entitlement to Kuwaiti citizenship. However, it considered
that, in this case, the applicant had been documented, he had received ten years of education
in Kuwait and his children also attended school there, therefore, any restrictions that he
would face (such as the absence of public places for Bidoons to practice religion) did not
amount to persecution. For the Australian Federal Magistrates Court, more was needed ‘to
satisfy the [Refugee] Convention than merely being outside one’s country of former habitual
residence and an inability to return there’.233
One decision of the Refugee Review Tribunal of Australia (RRTA) may be flagged as good
practice. It concerns an Article 1D / Article 1A(2) assessment in a case involving a stateless
Palestinian refugee. The RRTA recalled that statelessness and being unable to return to a
country of former habitual residence (namely, Jordan) are not sufficient ground for refugee
status.234 It then recognized that ‘the Jordanian government’s refusal to renew the applicant’s
passport is amongst a long list of discriminatory treatments it subjects Palestinian refugees
applying a literal interpretation to Article 1A(2) of the Convention. For an application of Savvin by the Tribunal,
see case no. 0908992 [2010] RRTA 389, 14 May 2010, at para.123.
230 Spender J, in Savvin, 171 ALR 483, at 485.
231 DZABG v Minister for Immigration & Anor [2012] FMCA 36.
232 Ibid, paras.30-31.
233 Ibid, para.121.
234 Appeal No. 0805551 [2009] RRTA 24, 15 January 2009.
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