Statelessness Matters 10 Years on from Al-Kateb: Statelessness in the Australian Context

Abstract

This year is the tenth anniversary of the final decision on al al Kateb v Godwin (2004) HCA 37), a landmark case in Australian migration law. The Australian government sought to indefinitely detain al Kateb, a stateless Kuwaiti, after refusing his application for asylum. The High Court ruled in favour of al Kateb on the basis that indefinite detention of a stateless person is unlawful. Since then, Australian law on statelessness has failed to develop to the extent that the Australian government has not legislated on a determination procedure for stateless people. Australia does not provide protections under United Nations Convention on the Status of Stateless Persons (1954) to which Australia is a signatory. This paper discusses sources Australian Country Advice KWT39495 to describe how concepts about stateless communities might develop within the Refugee and Migration Review Tribunals. It challenges the veracity of the Country Advice information based on its use of sources. It explains the reasoning behind American and UK positions on statelessness in Kuwait in the Country Advice, which influences determinations on asylum claims, in the absence of a procedure to determine and resolve statelessness. It concludes that not only are the Australian Country Advices in need of update, there is also a need for the quality of evidence sourced and the interpretation of that evidence, to be reviewed