The rights of strangers: refugees, citizenship and nationality

Abstract

In this paper I argue that the Australian courts have given the non-refoulement obligation in art 33 of the Geneva Refugee Convention 1951 (the Convention) a minimalist interpretation which fails to take account of the underlying principle requiring states to provide ‘effective nationality’ to asylum seekers. I describe how nationality is used as an exclusive rather than inclusive concept in the interpretation of the Convention. This interpretation sanctions the use of a safe third country principle and the use of temporary protection for asylum seekers. The effect of this is that the status of many asylum seekers is in limbo. I critique a line of cases including Minister for Immigration v Thiyagarajah, that have arisen from interpretation of art 1E of the Convention to demonstrate my argument.