BPC16 v Minister for Immigration

The applicant, BPC16, sought judicial review of a decision made by the Minister for Immigration concerning their visa status. The core of the dispute revolved around the Minister's assessment of BPC16's eligibility for a protection visa, specifically whether BPC16 met the criteria for being a "non-citizen" within the meaning of the *Migration Act 1958* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether BPC16, having been born in Australia to parents who were unlawful non-citizens at the time of BPC16's birth, was a "non-citizen" for the purposes of the *Migration Act*. This question turned on the interpretation of section 5 of the *Migration Act*, which defines a "non-citizen" and the circumstances under which a person born in Australia might be considered as such, notwithstanding the general principle of *jus soli*.

Judge Street reasoned that the definition of "non-citizen" in section 5 of the *Migration Act* was intended to capture individuals who, despite being born in Australia, did not acquire Australian citizenship by birth under the *Australian Citizenship Act 1948* (Cth). The Court considered the interplay between the *Migration Act* and the *Australian Citizenship Act*, noting that the latter Act provides the exclusive pathway to Australian citizenship by birth. As BPC16's parents were unlawful non-citizens at the time of birth, BPC16 did not automatically acquire Australian citizenship under the *Australian Citizenship Act*. Consequently, BPC16 fell within the definition of a "non-citizen" under section 5 of the *Migration Act*.

The Court ordered that the application for judicial review be dismissed.