NBJS & Anor v MIMIA & Anor

NBJS and another (the applicants) sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs and another (the respondents). The applicants, who were of Indigenous Australian descent, had applied for citizenship by descent under section 21(1) of the *Australian Citizenship Act 1948* (Cth). Their applications were refused by the Minister, who determined that they were not "Australian citizens" within the meaning of the Act at the time of their birth. The applicants contended that the Minister's decisions were affected by errors of law, including a failure to properly consider relevant evidence and a misinterpretation of the statutory provisions. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the applicants were entitled to citizenship by descent under section 21(1) of the *Australian Citizenship Act 1948* (Cth). This required the Court to determine the meaning of "Australian citizen" as defined in the Act and its application to individuals of Indigenous Australian descent. Specifically, the Court had to consider whether the applicants' status as Indigenous Australians, and the historical context of their ancestry, impacted their eligibility for citizenship by descent under the relevant legislative provisions.

Gummow and Heydon JJ held that the applicants were not entitled to citizenship by descent under section 21(1) of the *Australian Citizenship Act 1948* (Cth). Their Honours reasoned that the definition of "Australian citizen" in the Act at the time of the applicants' births did not extend to them. The Court emphasised that the Act provided a specific framework for acquiring citizenship, and that while Indigenous Australians held a unique place in the nation's history, this did not automatically confer citizenship by descent under the terms of the legislation. The Court found no error of law in the Minister's decisions, concluding that the applicants had not met the statutory requirements for citizenship by descent. The applications for judicial review were dismissed.