for citizenship in Australia, once the relevant residency requirements were met. Ultimately
the introduction of this temporary visa framework has resulted in Australia moving further
away from its pledge to minimise the incidence of statelessness as the temporary visa
framework only serves to perpetuate the statelessness of the persons eligible for protection,
whilst preventing their access to citizenship.
45
A specific visa category should also be established for all recognised stateless persons,
irrespective of their mode of arrival to Australia, providing for ‘permanent protection’ with
the possibility of naturalisation, in accordance with article 32 of the 1954 Convention.79
ISSUE 2: The Prolonged and Indefinite Detention of Stateless Persons in
Australia
46
As set out by UNHCR, ‘the absence of status determination procedures to verify identity or
nationality can lead to prolonged or indefinite detention’.80 The risk of detention is
heightened in the Australian context, due to the mandatory nature of immigration detention
in the country. Currently, Australia does not grant protection visas to people on the basis of
statelessness alone. Typically, when a person is refused asylum, they are removed from
Australia and returned to their country of origin, however, there is no country that stateless
persons can be returned to as a national.81
47
Other than the possibility of Ministerial intervention, stateless persons who do not meet the
refugee criteria are likely exposed to ‘prolonged indefinite detention’.82
48
The Australian High Court has held that upon proper statutory construction of the Migration
Act 1958 (Cth), stateless persons can lawfully be detained indefinitely. In Al-Kateb v Godwin,83
the High Court held that due to Mr Al-Kateb’s failed claim for protection, the unavailability of
a visa as a result of his status as a stateless Palestinian born in Kuwait, and his inability to be
returned to another country, it was lawful to indefinitely detain him.
49
More recently, the High Court rejected an opportunity to revise Al-Kateb v Godwin; the
indefinite detention of stateless persons in Australia therefore remains a pertinent issue.84
50
As neither Nauru nor Papua New Guinea have ratified the 1954 Convention, further concern
exists over the rights afforded to stateless persons who are held in Australia’s offshore
immigration detention locations.85
51
To date, the UN Human Rights Committee has issued numerous decisions in which it finds
Australia’s policy of mandatory immigration detention in breach of article 9 of the ICCPR.86
79
Ibid 453.
UNHCR, Handbook on the Protection of Stateless Persons (n 59) 41 [115].
81
Ibid 443.
82 Ibid 442–443.
83 Al-Kateb v Godwin (n 6).
84 M47/2018 v Minister for Home Affairs (n 6).
85
The Australian Government has been detaining people seeking asylum who arrived in Australia without a valid visa by boat in Nauru and
Papua New Guinea since 2012, raising serious human rights concerns. For more information, see ‘Offshore Processing’, Refugee Council of
Australia (Web Page) <https://www.refugeecouncil.org.au/offshore-processing/>.
86 Human Rights Committee, Views: Communication No 900/1999, 76th sess, UN Doc CCPR/C/76/D/900/1999 (28 October 2002); Human
Rights Committee, Views: Communication No 1014/2001 , 78th sess, UN Doc CCPR/C/78/D/1014/2001 (18 September 2003); Human Rights
Committee, Views: Communication No 1324/2004, 88th sess, UN Doc CCPR/C/88/D/1324/2004 (13 November 2006); Human Rights
Committee, Shams et al. v. Australia, 90th sess, UN Doc CCPR/C/90/D/1255,1256,1259,1260,1266,1268,1270&1288/2004 (20 July 2007);
Human Rights Committee, Views: Communication No 1069/2002, 79th sess, UN Doc CCPR/C/79/D/1069/2002 (6 November 2003); Human
Rights Committee, Views: Communication No 1050/2002, 87th sess, UN Doc CCPR/C/87/D/1050/2002 (9 August 2006); Human Rights
80
10