FEDERAL COURT OF AUSTRALIA

TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s oral application to amend his second further amended originating application to add a new ground 2A be dismissed.

2.    The second further amended originating application be dismissed.

3.    Paragraph 1 of the orders made on 23 February 2025 be vacated.

4.    Subject to paragraph 5, the applicant pay the respondents’ costs of the proceeding, as agreed or taxed.

5.    If either party seeks a different costs order, the party may file a brief written submission within seven days, in which case the other party may file a responding brief written submission within a further seven days, and the issue of costs will be determined on the papers.

6.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and s 37AG(1)(b), for a period of seven days, there shall be no disclosure, by publication or otherwise, except to the parties, of the Court’s reasons for judgment of today’s date.

7.    By 4.00 pm on 30 May 2025, the parties provide to the Court an agreed set of proposed redactions in relation to the judgment and a proposed form of suppression order.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant is a citizen of Iran. He arrived in Australia in 1990. In 1995, he was granted a subclass AZ-866 (protection) visa. In 1999, he was convicted of murdering his wife and sentenced to a lengthy term of imprisonment. In 2015, his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act). An application by the applicant for revocation of the cancellation decision was refused. The decision not to revoke the cancellation decision was affirmed by the Administrative Appeals Tribunal in 2022. An application for judicial review of that decision was dismissed. Following the completion of his term of imprisonment, the applicant was held in immigration detention as an unlawful non-citizen.

2    On 24 November 2023, the applicant was identified by the Department of Home Affairs (the Department) as being affected by the judgment of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 (NZYQ). In other words, the view was taken that there was no real prospect of removal of the applicant becoming practicable in the reasonably foreseeable future: see NZYQ at [55]. The applicant was granted a Class WR (Bridging R (Removal Pending)) (subclass 070) visa (BVR) and was released from immigration detention (as he was no longer an unlawful non-citizen).

3    On 5 December 2024, the Migration Amendment Act 2024 (Cth) came into force. This introduced ss 76AAA and 198AHB into the Migration Act (set out later in these reasons). In broad terms, s 198AHB operates if the Commonwealth of Australia enters into an arrangement (referred to as a “third country reception arrangement”) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country, and confers a power to take or cause to be taken any action in relation to the arrangement. Section 76AAA(1) provides that the section applies in relation to a non-citizen if:

(a)    the non-citizen holds a BVR;

(b)    the non-citizen has “permission (however described)”, granted by a foreign country, to enter and remain in that country;

(c)    the foreign country is party to a third country reception arrangement within the meaning of s 198AHB; and

(d)    none of certain exceptions apply.

4    Section 76AAA(2) provides that the Minister “must” give the non-citizen notice that the section applies in relation to the non-citizen. The effect of the non-citizen receiving the notice is that the BVR ceases to be in effect: s 76AAA(4). The rules of natural justice do not apply to the giving of such a notice: s 76AAA(5).

5    Between 31 January 2025 and 12 February 2025, the Minister for Home Affairs of the Commonwealth of Australia (who also held the office of Minister for Immigration and Multicultural Affairs) and the President of the Republic of Nauru exchanged letters in relation to an interim third country reception arrangement. The respondents’ case is that the exchange of letters constituted an agreement or arrangement between Australia and Nauru, albeit an interim agreement or arrangement that applied to only three individuals (one of whom was the applicant). One aspect of the applicant’s case (proposed new ground 2A) appears to put in issue whether an agreement or arrangement [REDACTED]. Notwithstanding that aspect of the applicant’s case, as a matter of convenience, I will refer to the agreement or arrangement said to be constituted by those letters as the Interim Arrangement.

6    On 14 February 2025, an Australian government officer applied for a visa for the applicant to live in Nauru. The type of visa applied for was called a “long term stay visa” as set out in the Immigration (Long Term Stay Visa) Regulations 2025 (Nauru) (the Nauruan Regulations). The regulations provide that the Director of Immigration of Nauru “shall” grant a long term stay visa to a person eligible for the visa pursuant to an arrangement between Nauru and another state for such a person to enter and remain in Nauru. The Nauruan Regulations provide that the duration of the long term stay visa is a minimum period of 30 years.

7    On 15 February 2025, Nauru issued a long term stay visa to the applicant (the Nauruan Visa).

8    On 15 or 16 February 2025, the Minister for Immigration and Multicultural Affairs (Australia) (the Minister) gave notice to the applicant that s 76AAA applied in relation to him (the Notice). On the respondents’ case, the effect of the applicant receiving the Notice was that his BVR ceased to be in effect and he again became an unlawful non-citizen.

9    On 16 February 2025, the applicant was taken into immigration detention, with a view to removing him from Australia to Nauru.

10    On 23 February 2025, a Judge of this Court granted an injunction restraining the Minister from removing the applicant involuntarily from Australia.

11    The latest iteration of the applicant’s originating application is his second further amended originating application (the Originating Application). By that document, the applicant seeks certiorari, declaratory relief, prohibition and injunctive relief. The applicant relies on six grounds. Further, during closing submissions, the applicant sought leave to rely on an additional ground.

12    Before setting out the applicant’s grounds, it is convenient to identify how the respondents say that s 76AAA applied in relation to the applicant. In summary, the respondents say that, at the time the Notice was given to the applicant, s 76AAA applied in relation to him because:

(a)    the applicant held a BVR;

(b)    the applicant had “permission (however described)”, granted by Nauru, to enter and remain in that country, namely the Nauruan Visa;

(c)    Nauru was party to a “third country reception arrangement” within the meaning of s 198AHB that was in force, namely the Interim Arrangement; and

(d)    none of the matters mentioned in s 76AAA(1)(d) applied.

13    There is no issue in relation to (a) above, but the applicant challenges each of (b), (c) and (d) above. In summary, the applicant’s six grounds are as follows:

(a)    Authority to make the decision to enter into the Interim Arrangement, and to enter into the Interim Arrangement, was impliedly conditioned on a requirement to afford the applicant procedural fairness (which was not afforded), non-compliance resulting in the Interim Arrangement lacking legal effect under s 76AAA(1)(c) (Grounds 1 and 2).

(b)    Authority to make the decision to produce the “permission” for the applicant under the Interim Arrangement was impliedly conditioned on a requirement to afford the applicant procedural fairness (which was not afforded), non-compliance resulting in any visa in fact granted by Nauru not being a “permission” having legal effect under s 76AAA(1)(b) (Grounds 3 and 4).

(c)    The decision to give the Notice, and the Notice, have no legal effect under s 76AAA (Ground 5). This ground is largely consequential on the preceding grounds. However, in addition to the matters raised by the previous grounds, the applicant raises two additional contentions:

(i)    First, he contends that he does not hold a valid Nauruan visa and therefore he does not have “permission”, granted by Nauru, to enter and remain in that country. Therefore, the requirement in s 76AAA(1)(b) is not satisfied.

(ii)    Secondly, he contends that one of the exceptions referred to in s 76AAA(1)(d) (namely the exception in sub-para (ii)) is engaged. Sub-paragraph (ii) is: “the non-citizen could not be removed to the foreign country [i.e. Nauru] because of sub-section 197C(3) if the non-citizen were an unlawful non-citizen”. The applicant contends that there would be a real risk of indirect refoulement were he removed to Nauru, and that this falls within the exception in s 76AAA(1)(d)(ii).

(d)    Removal of the applicant to Nauru is not authorised or required by s 198 (Ground 6). In part, this ground is consequential on the earlier grounds. In part, this ground relies on two additional points:

(i)    First, the applicant contends that it is not “reasonably practicable” to remove him to Nauru due to his medical conditions and the inadequacy of medical services on Nauru.

(ii)    Secondly, the applicant contends that it is not “reasonably practicable” to remove him to Nauru because there would be a real risk of indirect refoulement.

14    During closing submissions, the applicant applied orally for leave to amend the Originating Application to insert an additional ground 2A as follows:

2A.    If s 198AHB(1) and s 76AAA are conditioned on the Commonwealth having exercised non-statutory executive (prerogative) power, the [Interim] Arrangement did not satisfy that condition.

15    Pursuant to pre-hearing orders, the respondents filed a concise statement setting out their response to the applicant’s grounds. The respondents’ contentions as set out in that document, and as developed at the hearing, can be summarised as follows:

(a)    In relation to Grounds 1 and 2, the decision to enter into the Interim Arrangement, and the Interim Arrangement itself, are not justiciable as they relate to an exercise of non-statutory executive power concerning political matters and relations with a foreign State. In the alternative, authority to make the Interim Arrangement was not conditioned by a requirement to afford the applicant procedural fairness. The respondents accept that the applicant was not afforded procedural fairness in relation to the decision to enter the Interim Arrangement, but say that this was not required.

(b)    In relation to Grounds 3 and 4, the respondents accept that the act of applying for the long term stay visa involved an exercise of statutory power, namely the power conferred by s 198AHB(2). The respondents also accept that the question whether that exercise of statutory power is subject to an implied obligation to afford procedural fairness is justiciable. The respondents contend that the exercise of power was not impliedly conditioned by a requirement to afford the applicant procedural fairness. The respondents accept that the applicant was not afforded procedural fairness, but say that this was not required. In the alternative, the respondents contend that non-compliance with any obligation of procedural fairness did not result in: (i) the invalidity, as a matter of Nauruan law, of the Nauruan Visa; or (ii) the Nauruan Visa ceasing to answer the description of “permission (however described)” in s 76AAA(1)(b).

(c)    In relation to Ground 5, the respondents contend that s 76AAA(1) applied to the applicant (for the reasons set out at [12] above).

(d)    In relation to Ground 6, the respondents contend that removal of the applicant from Australia is authorised and required by s 198.

16    In relation to the application to insert new ground 2A, the respondents submitted that this should be refused on the basis that the respondents would suffer prejudice; they submitted that, had that ground been included, the evidence led by the respondents might have been different.

17    In summary, for the reasons that follow, I have concluded:

(a)    In relation to Grounds 1 and 2, the Interim Arrangement was entered into in the exercise of non-statutory executive power. The exercise of that power in this case was not conditioned by an obligation to afford procedural fairness to the applicant. I therefore reject Grounds 1 and 2.

(b)    In relation to Grounds 3 and 4, the decision of the Australian government officer to apply for a visa for the applicant to live in Nauru involved an exercise of statutory power (namely the power conferred by s 198AHB(2)). On the true construction of that provision, the exercise of power was not conditioned by an obligation to afford the applicant procedural fairness. Accordingly, Grounds 3 and 4 are not made out.

(c)    In relation to Ground 5, insofar as the applicant contends that he does not hold a valid Nauruan visa, this is not made out. Insofar as the applicant contends that there would be a real risk of indirect refoulement were he removed to Nauru, I am not satisfied that that is the case. Ground 5 is not made out.

(d)    In relation to Ground 6, insofar as the applicant contends that it is not “reasonably practicable” to remove him to Nauru due to his medical conditions and the inadequacy of medical facilities on Nauru, it is established by Full Court authority that the reference to reasonable practicability in s 198 does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete. Insofar as the applicant contends that he is not fit to travel to Nauru, this is a matter that will need to be assessed at the time of travel. I am not satisfied that it is necessarily not “reasonably practicable” for him to be removed from Australia to Nauru. Ground 6 is not made out.

18    In relation to the application for leave to amend to insert an additional ground 2A, I refuse leave to amend for the reasons set out below.

Procedural background

19    The proceeding was commenced on 21 February 2025. As noted above, on 23 February 2025, a Judge of this Court granted an injunction restraining the Minister from removing the applicant involuntarily from Australia. This was expressed to be “until further order”. It was also ordered that the applicant’s application for interlocutory relief be listed on a date to be fixed. The matter was then allocated to my docket. At a case management hearing on 27 February 2025, the applicant’s application for interlocutory relief (i.e. for an injunction restraining removal until the hearing and determination of the proceeding) was listed for hearing on 13 March 2025. However, subsequently, the respondents indicated that they were content for the injunction that had been ordered on 23 February 2025 to remain in place until the hearing and determination of the proceeding. The matter was then listed for an expedited hearing commencing on 16 April 2025 (on an estimate of two days).

20    The respondents served a notice under s 78B of the Judiciary Act 1903 (Cth) on the Attorneys-General for the Commonwealth and the States and Territories. The constitutional matter identified in the notice related to (a) whether the executive government, in entering into a third country reception arrangement, had made a decision that was amenable to judicial review; and (b) if reviewable, whether the power to enter into the arrangement was conditioned by a requirement to afford procedural fairness. The notice noted that the applicant contended that these matters were justiciable, and the respondents contended that entry into the third country reception arrangement was not justiciable; alternatively, that it was not conditioned by procedural fairness.

The hearing and the evidence

21    The hearing took place on 16 and 17 April 2025. The applicant relied on affidavit evidence or expert reports of the following witnesses:

(a)    the applicant, who prepared four affidavits;

(b)    Professor Gregory King, a respiratory physician with specific sub-specialty training and expertise in asthma, who prepared two reports, dated 31 March 2025 and 1 April 2025; and

(c)    Mr Jeffrey Cummins, a consulting clinical and forensic psychologist, who prepared a report dated 11 April 2025.

22    All three of the applicant’s witnesses were cross-examined. They each gave evidence by video conference using Microsoft Teams. I make the following observations about their evidence.

23    The applicant, who gave evidence in English, provided straightforward answers to questions and had a good recall of detail. Insofar as he gave evidence about factual matters, I accept that evidence. Insofar as he gave evidence as to his medical conditions and the risks that he faces, I accept that these are opinions that he honestly holds. However, ultimately, these are matters for expert evidence.

24    Professor King gave clear and precise answers to questions. I accept his evidence.

25    Mr Cummins gave evidence in clear terms and I generally accept his evidence.

26    The applicant also tendered a number of documents.

27    The respondents relied on affidavit evidence from the following witnesses:

(a)    Ms Shan Strugnell, the Assistant Secretary, Regional Program Operations and Policy, within the Department;

(b)    Ms Madisen Scott, a lawyer employed by the Australian Government Solicitor;

(c)    Mr Henry Warrick, the Acting Director of the Ministerial Intervention (projects) section within the Status Resolution and Visa Cancellation Division of the Department; and

(d)    Mr Jason Lynn, the Superintendent of the Removal Operations Branch, Complex Case and Engagement Section in the Immigration Compliance Operations Division within the Department.

28    Of the above witnesses, only Ms Strugnell was required for cross-examination. A central part of her role is to manage and coordinate the bilateral relationship between the Commonwealth of Australia and the Department of Multicultural Affairs within the Government of Nauru. In particular, her responsibilities include leading bilateral negotiations and engagements with the Government of Nauru with respect to third country reception arrangements. Ms Strugnell gave evidence by video conference using Microsoft Teams. Ms Strugnell was an excellent witness. She had a clear recollection of relevant events and expressed herself clearly and precisely. She was forthcoming in answering questions. I accept her evidence.

29    The respondents also relied on a number of documents.

30    Some of the evidence relates to high-level communications between the governments of Australia and Nauru. Given the sensitivity of that material to Australia’s relations with a foreign country, I made suppression orders in relation to that material on 16 April 2025.

Key legislative provisions

31    As noted above, ss 76AAA and 198AHB were inserted by the Migration Amendment Act 2024 (Cth), which came into force on 5 December 2024. The revised explanatory memorandum to the Bill that became that Act (the Revised Explanatory Memorandum) included the following (as part of the General Outline):

The Migration Amendment Bill 2024 (the Bill) amends the Migration Act 1958 (the Migration Act) to strengthen the legislative framework relating to the removal from Australia of certain non-citizens who are on a removal pathway. The Bill amends the Migration Act to support ongoing effective management of holders of a Subclass 070 (Bridging (Removal Pending)) visa (BVR) in the community and facilitate arrangements for their removal to receiving countries. The Bill also makes amendments to clarify the information that may be taken into account when making decisions or recommendations in relation to community protection or character-related matters and for other purposes under the Migration Act and the Migration Regulations 1994.

In particular, the Bill will amend the Migration Act to:

•    establish a ceasing event in new section 76AAA of the Act so that a BVR ceases to be in effect immediately after a mandatory notice is given to the BVR holder by the Minister that new section 76AAA of the Migration Act applies to the BVR holder, in certain circumstances where permission (however described) is granted by another country for the BVR holder to enter and remain in that other country;

32    Section 76AAA relevantly provides:

76AAA     Cessation of certain bridging visas—holder has permission to enter and remain in another country

(1)    This section applies in relation to a non-citizen if:

(a)    the non-citizen holds a Subclass 070 (Bridging (Removal Pending)) visa; and

(b)    the non-citizen has permission (however described), granted by a foreign country, to enter and remain in that country; and

(c)    the foreign country is a party to a third country reception arrangement (within the meaning of section 198AHB) that is in force; and

(d)    none of the following apply:

(i)    the non-citizen has made a valid application for a protection visa that has not been finally determined;

(ii)    the non-citizen could not be removed to the foreign country because of subsection 197C(3) if the non-citizen were an unlawful non-citizen;

(iii)    the non-citizen is a child under 18.

(2)    The Minister must give the non-citizen notice that this section applies in relation to the non-citizen.

(3)    The notice:

(a)    must be given as soon as reasonably practicable after this section starts to apply in relation to the non-citizen; and

(b)    may be given orally or in writing.

(4)    Despite any other provision of this Act or the regulations, the visa ceases to be in effect immediately after:

(a)    if the notice is given by a method specified in section 494B—the non-citizen is taken to have received the notice; or

(b)    otherwise—the non-citizen receives the notice.

…

(5)    The rules of natural justice do not apply to the giving of a notice under subsection (2).

(6)    For the purposes of paragraph (1)(b), a permission to enter the foreign country may be unconditional or a permission to enter that is subject to the non-citizen doing one or more things required by the foreign country that the non-citizen is capable of doing before entering the country.

33    The Revised Explanatory Memorandum discussed proposed s 76AAA at paragraphs 8-23. The explanation included:

12.    The effect of subsections 76AAA(1), (2) and (3) is that if the Department becomes aware that a foreign country has granted permission for a BVR holder to enter and remain in the country (and who satisfies the remaining requirements in subsection 76AAA(1)), as soon as reasonably practicable, the Minister must give notice to the BVR holder that section 76AAA applies to the person. The consequences of section 76AAA applying in relation to the person, and other requirements about the giving of notice to the person, are set out in the remaining subsections.

…

16.    If a person becomes an unlawful non-citizen due to the cessation of a BVR under subsection 76AAA(4), the person may be taken into immigration detention under section 189 of the Migration Act, and may be liable to be removed under section 198 of the Act. In certain circumstances, if a foreign country that is a party to a third country reception arrangement has granted permission for the person to enter and remain in that country, there would then be a real prospect that the person may be removed to that country under section 198 in the reasonably foreseeable future.

17.    Subsection 76AAA(5) provides that the rules of natural justice do not apply to the giving of a notice under subsection 76AAA(2). This provision is appropriate as the giving of a notice by the Minister under that subsection is mandatory, with subsection 76AAA(3) operating to require the Minister to give the notice to the non-citizen as soon as reasonably practicable. As the Minister is required to give notice after a foreign country has provided permission for a BVR holder to enter and remain in that country, the Minister is fulfilling a duty under section 76AAA and is not exercising a power or making a decision that could be affected by unfairness or bias. The notice requirement at subsection 76AAA(2) is not exercisable at the discretion of the Minister; rather, the duty is engaged by the occurrence of an external event, being that the foreign country grants permission for the BVR holder to enter and remain in that country.

34    Section 189 relevantly provides:

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

35    Section 197C is a lengthy provision. It is sufficient for present purposes to set out the following part:

(3)    Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:

(a)    the non-citizen has made a valid application for a protection visa that has been finally determined; and

(b)    in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

(c)    none of the following apply:

(i)    the decision in which the protection finding was made has been quashed or set aside;

(ii)    a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);

(iii)    the non-citizen has asked the Minister, in writing, to be removed to the country.

36    Section 198 relevantly provides:

(2B)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

(b)    since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)    in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

37    Section 198AHB provides:

198AHB Power to take action etc. in relation to third country reception arrangement

(1)    This section applies if the Commonwealth enters into an arrangement (third country reception arrangement) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.

(2)    The Commonwealth may do all or any of the following:

(a)    take, or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(b)    make payments, or cause payments to be made, in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(c)    do anything else that is incidental or conducive to the taking of such action or the making of such payments.

(3)    To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

(4)    Nothing in this section limits:

(a)    any other power or duty under this Act; or

(b)    the executive power of the Commonwealth.

(5)    In this section:

action includes action in a foreign country.

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

third country reception functions, of a foreign country, means the implementation of any law or policy, or the taking of any action, by that country (including, if the foreign country so decides, exercising restraint over the liberty of a person) in connection with the role of that country as a country which has agreed to the acceptance, receipt or ongoing presence of persons who are not citizens of that country, whether the implementation or the taking of action occurs in that country or another country.

Factual findings

38    In addition to the facts set out in the Introduction to these reasons, I make the following factual findings based on the affidavit evidence, expert reports and documentary evidence.

Communications between Australia and Nauru (September 2024 to 12 February 2025)

39    Between September 2024 and January 2025, a number of meetings took place between representatives of Australia and Nauru at which they discussed potentially resettling the cohort of persons affected by the NZYQ decision in Nauru. Some of these meetings involved the President of Nauru and the Minister for Home Affairs (Australia). Some of the meetings involved Ms Strugnell on behalf of Australia and Secretary Daniel Eoe, the Secretary of the Department of Multicultural Affairs of Nauru, and Secretary Jay Udit, the Secretary for Justice and Border Control of Nauru, on behalf of Nauru.

40    During the same period, there were written communications between the representatives of the two countries. Copies of those communications are included in the Closed Hearing Book and were the subject of the cross-examination of Ms Strugnell. The written communications included [REDACTED].

41    On 31 January 2025, the Minister for Home Affairs (Australia) and the President of Nauru held a meeting in Nauru. Ms Strugnell was present at the meeting and the evidence includes a Record of Conversation in relation to the meeting.

42    Following the meeting, the Minister for Home Affairs (Australia) provided a letter dated 31 January 2025 to the President of Nauru, attaching an “Interim Third Country Reception Arrangement”. The letter included:

Thank you … for Secretary Eoe’s letter of 13 November 2024 to the Australian Government offering to assist with the reception and settlement process of select persons who cannot be returned to their home country. As you are aware, recent amendments to our Migration Act confirm and enhance Australia’s ability to undertake third country reception arrangements and this proposal marks the first such arrangement under these new provisions.

As discussed at our meeting on Friday 31 January 2025, preliminary discussions between our governments have taken place to socialise details of such a reception arrangement including:

•    A minimum 30 year agreement period where financial support would be provided directly to the Government of Nauru in recognition of the numbers settled and the requirement for Nauru to fully settle and integrate the cohort as part of the Nauruan population

•    Options for funding models for calculating the amount of support payable to the Government of Nauru as may be agreed

•    Broad parameters for a phased approach to identify and transfer cohorts of people

•    Non-negotiable conditions posed by Australia for any such persons settled

As advised, Cabinet authority has now been provided and negotiations can proceed at our senior officer level to finalise a formal settlement and funding arrangement.

I have now asked that my senior officers work with Nauruan officials to consider an initial settlement of up to three individuals as a first cohort. This approach will ensure that each Government’s respective procedures and systems are sufficiently mature to support the arrangement going forward. I trust that the small number will support the Government of Nauru in achieving this outcome, by alleviating the demands on the Government of Nauru’s resources and ensuring safe and effective management of the cohort.

Secretary Eoe’s letter of 13 November 2024 also indicated that the Government of Nauru is amenable to accepting individuals without any reservation in relation to age, past offences, or other characteristics. The Australian Government will provide details to the Government of Nauru on the individuals proposed for reception and settlement - as the legislation now allows - including their backgrounds, details of any prior criminal offending, and other relevant information to allow Nauru to determine if the individuals are suitable for settlement.

To allow the initial cohort to commence, I seek your agreement to the interim third country reception arrangement as set out in Attachment A below. Under Australian law, having such an arrangement in place is essential to establish a robust legal framework and to allow advance payments of financial support to be made to the Government of Nauru.

(Emphasis added.)

43    Attachment A to the letter was in the following terms:

Attachment A: Interim Third Country Reception Arrangement

The arrangements set out below constitute a ‘third country reception arrangement’ between the Commonwealth of Australia as represented by the Department of Home Affairs (Department) and the Republic of Nauru (GoN), as contemplated by section 198AHB of the Migration Act 1958 (Australia).

These terms in this arrangement will remain in force until replaced by a new third country reception arrangement, or ceased by mutual consent, as agreed to in writing by both countries.

1.    The settlement arrangement for any individual person shall commence from the individual acceptance date, being the date on which, following receipt by the GoN of a request to settle a named person from the Department, the GoN provides formal written notice to the Department of its willingness to settle this person in Nauru under this arrangement.

2.    The formal notice shall be specific to the person and not general in nature, in order to provide sufficient certainty to the Department to undertake the logistical actions in Australia necessary to remove the person to Nauru for settlement.

3.    The Department shall provide all reasonably requested information, as permitted by Australian law, to the GoN in relation to any individual proposed to be settled to allow for this notice to be issued and appropriate preparations to be made prior to arrival.

4.    The GoN shall grant each person accepted for settlement while this arrangement is in force an indefinite stay visa to enter and remain in Nauru.

5.    The terms of the issued visa shall allow settled people to leave and re-enter Nauru, subject to any reasonable conditions and regulations the GoN believes necessary for the good order of Nauru.

6.    The GoN shall conduct its operations in accordance with the previously discussed conditions for treatment of all settled people, namely:

a)    Treatment in accordance with international legal obligations, including relevant obligations under international human rights laws

b)    Freedom of movement, with no separation from the Nauruan community solely as a result of an individual's status

c)    No imposition of detention, except in accordance with ordinary Nauruan law

d)    A right for individuals to raise new protection claims and have those claims assessed

e)    No risk of arbitrary deprivation of life, application of the death penalty, torture or other cruel, inhuman or degrading treatment or punishment or persecution

f)    No risk of chain refoulement

g)    No imposition of arbitrary or punitive conditions in support of community safety

h)    Access to work rights, and any relevant social safety nets and services

7.    The GoN accepts its responsibility to provide support to settled persons to achieve minimum outcomes in line with Nauruan standards of living including, as necessary and as tailored to individual needs:

a)    Provision of appropriate and gender-sensitive accommodation, including fixtures and furnishings, suitable for males and females and supporting the co-habitation of nuclear family groups where settled

b)    Provision of reasonable allowances for living expenses

c)    Access to local transport services

d)    Access to health services, including telemedicine and telehealth

e)    Access to welfare and education services

f)    Making any other administrative or logistical arrangements required to ensure the safety and wellbeing of settled people and the Nauruan community

i    Until negotiations for a comprehensive funding agreement are finalised, a process for interim payments to support Nauru will be established by way of exchange of letters.

8.    The Department and GoN will meet regularly to discuss GoN progress in the operationalisation of the various mechanisms, procedures, and systems developed for delivery of the settlement program while this arrangement is in force.

9.    In the event that a nominated person does not arrive in Nauru, departs from Nauru after arrival, or is deceased, the Department may terminate the provision of funding in relation to that individual with 30 days’ notice. Specifically but not exhaustively, this clause comes into force:

a)    In the event of an injunction or other compelled action by a court in relation to a named individual which prevents their arrival in Nauru or requires their departure from Nauru

b)    If an individual voluntarily and permanently departs from Nauru due to their securing of permission to enter and remain in another country

c)    If the Department and the GoN otherwise mutually agree that a person has departed from Nauru with or without authority, and there is no reasonable prospect of their return

10.    Payment for a settled person shall cease immediately if an action by the GoN led to an individual being removed or otherwise no longer being present on Nauru.

(Bold emphasis added.)

I note that Attachment A includes a reference (at para 6(f)) to there being no risk of “chain refoulement”. I understand that expression to be interchangeable with “indirect refoulement” and to refer broadly to a situation where a non-citizen is indirectly returned (i.e. via another country or countries) to a country where they face a real risk of persecution or harm.

44    On 4 February 2025, Ms Strugnell sent an email to Secretary Eoe and Secretary Udit, with “client briefs” in relation to the three individuals that Australia proposed that Nauru would receive under the proposed interim arrangement. One of these was the applicant. The background information about the applicant was set out on one page and included:

[REDACTED]

45    On 6 February 2025, Secretary Udit provided Ms Strugnell with a [REDACTED]. Ms Strugnell accepted during cross-examination that [REDACTED].

46    On 7 February 2025, the President of Nauru sent a letter to the Minister for Home Affairs (Australia). The letter included:

Following our discussion, I confirm receipt of your letter dated 31 January 2025. The government of Nauru affirms its commitment to undertaking the Third Country Reception arrangements. Nauru welcomes this initiative and recognises its importance for both our countries. I have instructed our senior officials to engage in discussions and finalise the agreement, ensuring that all necessary terms and conditions are addressed with a view to the earliest implementation.

47    By letter dated 10 February 2025, the President of Nauru wrote to the Minister for Home Affairs (Australia) stating:

Further to my letter of 7 February 2025, I write to confirm that the Government of Nauru agrees to the interim third-country reception arrangement set out in Attachment A of your letter dated 31 January 2025. Further, each of the initial 3 persons, and thereafter any such other persons accepted for settlement while the arrangement is in force, will receive a long-term stay visa to enter and remain on Nauru for a period of 30 years.

(Emphasis added.)

48    Ms Strugnell accepted during cross-examination that, [REDACTED].

49    On 12 February 2025, the Minister for Home Affairs (Australia) sent a letter to the President of Nauru that stated:

Thank you for confirming that the Government of Nauru agrees to the interim third country reception arrangement set out in Attachment A of my letter dated 31 January 2025, and for advising that each of the initial 3 persons will receive a long term stay visa to enter and remain on Nauru for a period of 30 years.

On that basis, my letter of 31 January 2025, your reply letter of 10 February 2025 and this letter together shall constitute an agreement between the Commonwealth of Australia and the Government of Nauru, which will enter into force upon your receipt of this letter.

This agreement is a statement of the shared understanding of the participants and is not intended to create any legally binding rights or obligations.

(Emphasis added.)

50    As noted above, the respondents’ case is that the exchange of letters between the Minister for Home Affairs (Australia) and the President of Nauru constituted an agreement or arrangement between Australia and Nauru, albeit an interim agreement or arrangement that applied to only three individuals (one of whom was the applicant). One aspect of the applicant’s case (proposed new ground 2A) appears to put in issue whether an agreement or arrangement was in fact formed. Subject to consideration of that ground (including whether it can be raised), I find that the exchange of letters between the Minister for Home Affairs (Australia) and the President of Nauru constituted an agreement or arrangement, albeit an interim one. It is common ground that the Interim Agreement related to only three persons, one of whom was the applicant.

51    Ms Strugnell accepted during cross-examination that, [REDACTED]. This remained the case as at 16 February 2025, when the applicant was detained.

The Nauruan Regulations

52    On 12 February 2025, the Nauruan Regulations (which had been made under the Immigration Act 2014 (Nauru)) were gazetted and came into effect. Regulations 4, 5 and 7 provide:

4    Long term stay visa

(1)    A long term stay visa is established as a class of visa.

(2)    The Director shall grant a long term stay visa to:

(a)    a person or group of persons eligible for the visa pursuant to an arrangement entered into by the Republic with any other State for such person or persons, to enter and remain in the Republic; and

(b)    where ordinarily, a visa would not be granted to a person to enter the Republic pursuant to any other classes of visa provided under Regulation 4 of the Immigration Regulations 2014.

(3)    The visa granted in subregulation (1) allows the holder of the visa unlimited multiple entry and exit to and from the Republic.

5    Visa application

(1)    An application for a visa shall be made to the Director and:

(a)    submitted by an official of a State, with which the Republic has an arrangement under Regulation 4;

(b)    be in the Form in Schedule 1 or any other form with the prior approval of the Secretary;

(c)    shall be accompanied by an authenticated identity or document issued by the requesting State;

(d)    a medical record of the applicant which the requesting State has knowledge of or privy to;

(e)    a history of the applicant’s criminal records, recent criminal charges or convictions, including any reforms and rehabilitation undertaken by the applicant; and

(f)    such other relevant information, which may be reasonably required by the Director.

(2)    For the purposes of the visa, the applicant or the requesting State seeking the granting of the visa, shall provide:

(a)    a passport or travel document; or

(b)    such other form of identity which shall have an authenticated photograph from the requesting State with available biodata of the applicant.

…

7    Duration of the visa

(1)    The duration of the visa shall be for a minimum period of 30 years.

(2)    The requesting State which has an arrangement with the Republic under Regulation 4 shall be responsible for the payment of the annual visa fees as stipulated in Regulation 6.

(3)    For avoidance of doubt, a visa shall not lapse or be deemed to be invalid where the visa fee has not been paid.

53    Schedule 3 to the Regulations sets out terms and conditions of the long term stay visa. Item 3 in that Schedule reflects paragraph 7 of Attachment A to the 31 January 2025 letter from the Minister for Home Affairs (Australia), set out above.

The application for and granting of the Nauruan Visa (14 to 15 February 2025)

54    On Friday, 14 February 2025, Ms Strugnell sent an email to Secretary Udit requesting that Nauru issue visas as soon as possible for the three initial persons, which included the applicant. Attached to the email were completed forms for long term stay visas under the Nauruan Regulations, client briefs, health summaries and statements of identity. Ms Strugnell asked that Secretary Udit SMS (i.e. text message) her once the visas were completed. The applicant was not given any notice that the application for the visa was being made on his behalf.

55    On Saturday, 15 February 2025, Secretary Udit sent an email to Ms Strugnell attaching long term stay visas for the three initial persons, including the applicant. The attachments included the Nauruan Visa. [REDACTED].

56    On the same day, Ms Strugnell sent an email in response stating: [REDACTED].

The Notice and detention of the applicant (15 and 16 February 2025)

57    On 15 February 2025, at 11.13 pm (AEDT), a notice of cessation expressed to be under s 76AAA of the Migration Act (referred to in these reasons as the “Notice”) was emailed to the applicant’s authorised recipient.

58    Late on 15 February or early on 16 February 2025, the applicant was located by an officer of the Australian Border Force, given the Notice and detained. The applicant gave oral evidence, which I accept, that this was the first time he became aware of the Notice.

Steps to remove the applicant (15 to 23 February 2025)

59    On 15 February 2025, officers of the Department completed a “Pre-removal Clearance” to assess whether the applicant was owed any non-refoulement obligations in relation to Nauru.

60    On 17 February 2025, Ms Scott sent an email to the applicant’s authorised recipient providing a copy of a Notice of Intention to Remove from Australia.

61    On 19 February 2025, a Registered Nurse from Healthcare Australia completed a declaration as to whether the applicant was fit to travel.

62    On 19 February 2025, the applicant was interviewed by an officer of the Department concerning removal of the applicant from Australia to Nauru. The evidence includes an “interview script” that includes the applicant’s responses to the questions that he was asked. The “interview script” document contains the sub-heading: “Reviewing non-refoulement obligations in regard to removal to a third country”. The applicant states in his fourth affidavit that the “interview script” document contains an accurate record of his answers to questions.

63    On 21 February 2025, a Registered Nurse from Healthcare Australia, having discussed the assessment with the Medical Practitioner Lead – Removals, declared the applicant as fit to travel, subject to clinical stability at the time of removal.

64    In Ms Scott’s affidavit, which was prepared before this Court granted the injunction referred to above, Ms Scott stated that the applicant was scheduled to depart for Nauru by charter flight from Perth at approximately 12.00 pm (AWST) on 24 February 2025.

65    As noted above, on 23 February 2025, an injunction was granted by this Court restraining the Minister from removing the applicant from Australia.

The President’s media interview (17 February 2025)

66    On 17 February 2025, the President of Nauru gave a media interview, at least partly in Nauruan. The evidence includes a translation of the interview into English (tab 9(n) of the Closed Hearing Book). There was initially an evidentiary dispute between the parties about the admissibility of this translation. This was resolved on the basis that the parties agreed to a statement of facts (dated 16 April 2025) about how the translation was prepared, and the respondents did not press their objection to the translation being admitted into evidence. The statement of agreed facts contains the following facts (which I accept):

With respect to the document contained behind tab 9(n), pg 96-98 of the Closed Hearing Book filed in this proceeding (described as “Unofficial translation of media interview with the President of Nauru discovered by the respondents”) (document):

1.    The document was prepared by a junior staff member (the Person) in the Australian High Commission in Nauru.

2.    The Person speaks Nauruan and English.

3.    The Person watched the video recorded interview with the President of Nauru that took place on 17 February 2025.

4.    The document contains the Person’s notes in English of that interview.

5.    When the document was prepared, the Person was an employee of the Commonwealth of Australia.

6.    The document related to a matter within the scope of the Person’s employment.

7.    The Person did not intend the document to be relied upon as a complete or official translation of the interview.

8.    The Person is not a professional or accredited translator.

67    The translation of the interview is as follows. I infer that [REDACTED] refers to the [REDACTED].

[REDACTED]

68    In light of the matters set out in the statement of agreed facts, I do not consider that the translation can be treated as accurate in all respects. Nevertheless, I accept that the translation is a rough or approximate translation of the President’s statements during the interview.

Communications between Australia and Nauru (on and after 17 February 2025)

69    On 17 February 2025, a meeting took place in Brisbane between representatives of Australia (including Ms Strugnell) and representatives of Nauru (including Secretary Eoe and Secretary Udit). At this stage, [REDACTED]. At the meeting, Australia’s representatives [REDACTED]. Ms Strugnell accepted during cross-examination that she said this because [REDACTED].

70    The following exchange took place during cross-examination of Ms Strugnell:

[REDACTED]

71    On 21 February 2025, a virtual meeting took place between representatives of Australia (including Ms Strugnell) and representatives of Nauru. During the meeting, Ms Strugnell [REDACTED].

72    On 4 and 5 March 2025, a further meeting took place between representatives of Australia and representatives of Nauru. There was discussion about [REDACTED].

73    On 7 March 2025, Ms Strugnell sent an email to Secretary Eoe and Secretary Udit attaching [REDACTED]. Ms Strugnell accepted during cross-examination that [REDACTED].

74    From 28 March 2025, the Australian government was in caretaker mode due to a federal election. This remained the case at the time of the hearing of this proceeding (16 and 17 April 2025).

Protection findings in relation to the applicant

75    I now refer to some earlier documents containing protection findings. By letter dated 31 March 2021, the Department notified the applicant that an International Treaties Obligations Assessment in respect of him had been finalised on that date, and had made a finding that Australia’s non-refoulement obligations were engaged in the applicant’s case. The letter stated that the Department would not make arrangements to remove the applicant from Australia while he continues to engage Australia’s non-refoulement obligations.

76    By letter dated 8 September 2023, the Department notified the applicant that the Minister had found that the applicant continued to engage Australia’s protection obligations. The letter stated that s 197C(3) continued to prevent involuntary removal of the applicant to Iran at that time.

The applicant’s health

The applicant’s evidence

77    The applicant gives evidence in his first affidavit, which I accept, that he has a long history of severe and uncontrolled asthma, with multiple admissions to intensive care units.

78    The applicant was admitted to hospital in September 2020. He was asked questions about this during cross-examination. The applicant stated that Northam Hospital stabilised him overnight, but they could not address his issues and transferred him to Royal Perth Hospital. He said that two days later he saw a Dr Waring. During cross-examination, the applicant accepted that Dr Waring advised him that some of his symptoms, including dizziness while exerting or exercising, were due to hyperventilation rather than asthma.

79    On 10 November 2024, the applicant was admitted to Royal Perth Hospital for an acute severe exacerbation of asthma. He states in his first affidavit that he was discharged on 11 November 2024 in a stable condition, but was instructed to closely monitor for any further exacerbations.

80    On about 17 February 2025, while the applicant was in immigration detention, he started coughing continuously and could not stop; he became short of breath and collapsed. He gives evidence in his third affidavit that he was taken to see a medical officer in the immigration detention centre, and was then transferred to Northam Hospital and received treatment in an intensive care unit. He was transferred to the ward and then released the following day.

81    In his third affidavit, the applicant gives evidence that, based on his experiences, his respiratory condition is made worse by changes in environment and in the weather (especially hot, humid climates). He was challenged during cross-examination on when he had first raised the issue of humid climate affecting his condition. It was suggested that he first raised this in February 2025 (after he knew that it was proposed to send him to Nauru). The applicant denied this. Subsequently, the applicant’s lawyers tendered International Health and Medical Services (IHMS) documents that showed that the applicant had raised this issue earlier (in 2020 and 2021). I accept that the applicant had raised this issue earlier.

Professor King’s evidence

82    Professor King was cross-examined only briefly, and he was not challenged on any of the opinions expressed in his reports.

83    Professor King expresses opinions in his first report based on the documents that were provided to him, namely detention centre medical notes, hospital medical notes from Northam Hospital, specialist letters from Dr Waring, and hospital discharge letters. Professor King expresses the following opinions, which I accept:

(a)    The applicant suffers from severe asthma and possible overlying hyperventilation. The applicant has suffered asthma for 37 years. He has suffered severe asthma since at least 2017 as indicated by his ICU admission, but it is almost certain that he has had severe asthma since well before that time.

(b)    The applicant requires ongoing professional or specialist help or treatment for his illnesses and conditions. Specifically, he requires regular specialist follow-up and management, ideally in a specialist asthma service (which is the current standard of practice in Australia).

84    Later in his first report, Professor King provides the following opinions as to the applicant’s conditions (which I accept):

The definition of severe asthma is the presence of regular symptoms and asthma attacks (exacerbations) that are present despite regular optimal inhaled corticosteroid/long acting bronchodilator combination treatment. The most severe asthmatic suffers are characterised by recurrent hospital admission, past ICU admission, frequent (at least daily) use of Ventolin (a short acting reliever puffer) due to frequent symptoms. Therefore, [the applicant] falls into this category of the most severe type of asthma.

The most significant consequence of this type of asthma is that of ongoing attacks, which in themselves are strongly associated with poor patient outcomes, including risk of death. The greatest risk factor for having future attacks, is having had previous, recurrent attacks, which is present in this man. Other risk predictors for attacks which are present in [the applicant] are frequent symptoms and Ventolin use, obesity, psychological distress and GORD. Other factors are high peripheral blood eosinophil counts (not available), high exhaled nitric oxide levels (not available) and poor lung function (only a single documented measure of lung function is referenced, however the formal report was not available). Therefore, [the applicant] is very likely to have ongoing asthma attacks, which may worsen with age.

The potential of a hyperventilation syndrome was mentioned by Dr Waring. This falls under a condition of ‘Dysfunctional Breathing Syndrome’, which is common in severe asthma and which is also a risk factor for ongoing attacks. This adds further complexity to the severe asthma and is a further argument to his requiring specialised severe asthma service management.

85    In response to a question whether the applicant is fit to travel to Nauru, Professor King expresses the following opinion in his first report (which I accept):

I cannot comment whether he is currently fit to undertake overseas travel, since his asthma history indicates that he may change suddenly. I do not have sufficient information that is up-to-date to determine if he can currently safely travel. However, if he is not having an asthma attack, it is likely that he can travel internationally.

(Emphasis added.)

86    In response to a question “what specialist facilities or medical services (if any) would be needed to effectively treat and/or manage [the applicant’s] illness(es) or condition(s)”, Professor King expresses the following opinions in his first report (which I accept):

He requires specialist services as stated above i.e. regular review in a specialist clinic, by a respiratory physician with sufficient expertise to manage severe asthma. He requires a hospital service that is able to manage acute, severe asthma attacks that are potentially life-threatening.

87    In response to a question “what are the possible and likely consequences for [the applicant] (if any) if those specialist facilities or medical services are not available to him?”, Professor King expresses the following opinions in his first report (which I accept):

The possible and likely consequences in the absence of those services are increasing frequency of asthma attacks and potentially of having a fatal asthma attack. The basis of this opinion: Even with regular specialist follow-up and management, some patients suffer severe asthma with associated poor outcomes. [The applicant’s] asthma, based on the information that I have received, falls into this category. The consequences of severe asthma are: ongoing attacks, increased risk of dying from attacks, progressive loss of lung function, high burden (symptoms, loss of productivity, high direct and indirect costs related to asthma, reduced quality of life) and long term complications of medications (particularly the high cumulative dose of systemic corticosteroids).

88    Professor King was asked a question about medical services and facilities in Nauru. He answered in his first report that he has no direct knowledge of, or communication with, any of the medical services and doctors in Nauru. However, he expressed the following opinions as to the best practice for caring for patients such as the applicant:

The medical expertise required to manage asthma of this severity in Australia, resides in teaching hospitals. Current best practice is managing such patients by respiratory physicians having sufficient knowledge and expertise of severe asthma, with the support of a multidisciplinary team. Therefore, these services are only located (to my current knowledge), in major teaching hospitals.

89    Subsequently, Professor King was provided (by the applicant’s solicitors) with three additional documents, namely: (1) an email chain dated 21 February 2025; (2) a document headed “Questions on health arrangements in Nauru for TCRA cohort”; and (3) a copy of a report prepared by Mr Cummins about the applicant dated 11 June 2022. The instructions to Professor King explained that the first two documents had been discovered by the respondents in the proceeding. Copies of those two documents are annexed to Professor King’s second report (see Open Hearing Book, tab 2(d), pp 280-285). They also went into evidence, without objection, as part of Exhibit A7. The document headed “Questions on health arrangements in Nauru for TCRA cohort” contains questions asked by Australian government officials about health arrangements for the relevant cohort, together with responses provided by Nauruan public health officials. I find that the statements made in it, about the medical services available in Nauru, are accurate. Professor King was asked what impact the additional documents had on the opinions expressed in his first report (question 5). In response to that question, Professor King expressed the following opinions in his second report (which I accept):

The documentation of the medical services in the facility in the Republic of Nauru substantiate my opinion that the medical services available are insufficient to manage severe asthma on an ongoing basis, and to adequately manage severe or life-threatening attacks. The absence of an emergency medicine physician is significant, since this person should have the expertise to assess and manage severe asthma attacks on arrival to hospital. … There is no ICU, which is necessary to manage severe attacks. Medevac for severe asthma and life-threatening asthma involves substantial risk, particularly if ventilatory support (continuous positive airway pressure, non-invasive ventilation or invasive mechanical ventilation) is needed.

(Emphasis added.)

90    On the basis of this evidence, I find that the medical services available in Nauru are inadequate to manage the applicant’s condition of severe asthma on an ongoing basis.

91    Professor King was also asked a question (question 6) regarding whether stress increased the likelihood of the applicant suffering from an asthma attack and/or an asthma attack of increased severity. In response to that question, Professor King stated in his second report that this is a poorly studied area and the current paradigm (that stress increases the severity of symptoms) is questionable. In light of this evidence, I am not satisfied that stress increases the likelihood of the applicant suffering from an asthma attack or an asthma attack of increased severity.

92    In his second report, Professor King also addressed a further question (question 7) relating to the risk of the applicant suffering serious injury or death should he travel to Nauru and experience an asthma attack. This question was premised on three assumptions, one of which was that “[t]he travel would cause [the applicant] to feel increased stress, making it more likely he would suffer from an asthma attack and/or that any attack would be more severe”. In light of Professor King’s response to question 6, that assumption is not established. In these circumstances, if and to the extent that Professor King’s response to question 7 depends on the assumptions, no weight can be given to the response. However, in my view, the last three sentences of Professor King’s response to question 7 are independent of the assumptions that he was given for the question. The last three sentences of Professor King’s response to question 7 are as follows:

It is relevant that [the applicant] has had frequent, severe attacks in the last 6 months (see summary of “Asthma exacerbation history” in the previous report) which indicates high risk of future severe attacks. Should he have an attack during international travel, it is entirely possible that this could be life-threatening or fatal. The absolute risk would be dependent on his medical condition in the weeks leading up to travel, since asthma fluctuates over days, weeks, months and years.

(Emphasis added.)

93    During cross-examination, Professor King was taken to the last sentence in his response to question 7 (i.e. the last sentence set out above). The following exchange took place:

… Do you agree, given what you’ve said in that final sentence about the risk being dependent upon the treatment or the medical condition in the period leading up to travel – do you agree that one way in which the risk could be managed or reduced is to monitor the applicant’s symptoms in the days, weeks and months up to the date of travel?---I agree, except that not symptoms only. So he would have to have a proper assessment of his asthma which doesn’t include symptoms only.

… So the other aspect that you’re discussing would be, in addition to monitoring symptoms, some kind of health assessment prior to him flying to Nauru?---Yes. Specifically lung function and whatever was thought necessary at the time of that medical assessment.

… And would you agree that another way to manage or reduce the risks that you are discussing would be to have available on the flight assistance from a doctor or nurse or another other medical professional?---Yes. Agreed.

94    I accept Professor King’s evidence in the last three sentences of his response to question 7 and in his oral evidence set out above. On the basis of that evidence, I find that the risk posed to the applicant (in connection with his condition of severe asthma) by airplane travel from Australia to Nauru would depend on his medical condition in the weeks leading up to travel, and that the risk could be managed or reduced by: (a) monitoring the applicant’s symptoms in the days and weeks leading up to the date of travel; (b) conducting a proper assessment of the applicant’s asthma before travel; and (c) having appropriate medical assistance available on the flight.

Mr Cummins’s evidence

95    As noted in Mr Cummins’s report, Mr Cummins assessed the applicant for a total of approximately 6.5 hours in July and August 2022 and provided a report dated 11 August 2022 to the applicant’s then lawyers. Mr Cummins also provided oral evidence in relation to the applicant at a hearing before the Administrative Appeals Tribunal.

96    For the purposes of his report for this proceeding, Mr Cummins was briefed with a bundle of documents, including the reports of Professor King. Mr Cummins interviewed the applicant via video conference for two hours on 7 April 2025 and had a further telephone conversation with him for 20 minutes on 9 April 2025.

97    The Open Hearing Book, at tab 2(e), contains a copy of Mr Cummins’s report but not the letter of instructions setting out the questions. In paras 48-54, Mr Cummins expresses the following opinions:

(a)    the applicant has Complex PTSD (an ICD-11 diagnosis) (para 48 of the report);

(b)    the applicant developed symptoms of PTSD while in the army as a combat soldier during the Iran-Iraq war in Iran; he has subsequently been subjected to further traumatic events which have triggered the development of Complex PTSD; his current immigration situation and the risk he will be transferred to Nauru represent another traumatic event for him, and hence his current symptoms of Complex PTSD have been exacerbated (para 49 of the report);

(c)    the applicant requires ongoing specialist medical health treatment for his symptoms of Complex PTSD; these symptoms would be exacerbated if he were transferred to Nauru because he would remain of the opinion that he would ultimately be deported to Iran and in his mind this would mean he would inevitably lose his life (para 50 of the report);

(d)    based on Mr Cummins’s recent assessment of the applicant, Mr Cummins is of the opinion that on mental health grounds he is not fit to travel to Nauru (para 51 of the report);

(e)    if the applicant is compelled to travel to Nauru, his currently elevated levels of depression, anxiety and stress will be exacerbated immediately prior to him being forcibly put onto a flight; his level of stress while on the flight would be exacerbated, not only by virtue of him not wanting to be on the flight, but also by virtue of him fearing that while on the flight there would be an increased likelihood that he would suffer a medical episode such as an asthma attack and/or hyperventilation and that while on the flight there would most likely not be a registered medical specialist available to attend to his medical needs and he would therefore be concerned about the risk of dying while on the flight (para 54 of the report).

98    During cross-examination, Mr Cummins was taken to para 51 of his report (in which he expressed the opinion set out in (d) above in the first sentence). Mr Cummins accepted that in the balance of para 51 he relies on Professor King’s reports and refer to the type of treatment the applicant would require in Nauru. Mr Cummins said that the opinion that he expressed in the first sentence of para 51 was based on what he said in the remainder of the paragraph, and on the fact that he had diagnosed the applicant with Complex PTSD.

99    Mr Cummins was also taken during cross-examination to para 54 of his report. Mr Cummins accepted that his opinion was based on the assumption that there would be no one on the plane to attend to the applicant’s medical needs. Mr Cummins accepted that the presence of a medical practitioner who was familiar with the needs of the applicant, so far as his stress levels and anxiety were concerned, on a flight with the applicant to Nauru, may in part alleviate his anxiety and stress levels. Mr Cummins said that the maximum level of management and therapeutic care would be via a mental health practitioner (as opposed to a general medical practitioner) who had already worked with the applicant.

100    On the basis of this evidence, I do not accept that on mental health grounds the applicant is not fit to travel to Nauru. Further, I find that the mental health issues posed by the flight could be managed by the provision of appropriate medical care during the flight.

Removal process

101    In Mr Lynn’s affidavit, he provides evidence about the removal process, including assessment of health and fitness to travel. He gives evidence, which I accept, as follows:

(a)    The Department recognises that a person’s health may prevent their safe travel during the process of removal. The Department has a specific policy, the “Removal From Australia – Health Assessment Procedural Instruction”, detailing three separate processes which are undertaken prior to an unlawful non-citizen’s removal. This policy is supported by another policy, the “Detention Health – Fitness to Travel Assessments” Policy.

(b)    In summary, the three processes undertaken prior to removal are:

(i)    a Health Discharge Assessment, being an assessment for the purposes of ensuring continuity of care, which details the health status of an unlawful non-citizen and the health care provided to them while in immigration detention;

(ii)    a Health Discharge Summary (HDS) is prepared to inform future health care providers of the clinical history of an unlawful non-citizen during their period of detention, including any treatment received, ongoing treatment and medication requirements, and health critical incidents, which may have occurred. The HDS will also make recommendations regarding post-removal continuity of care requirements for the unlawful non-citizen once they arrive in the destination country;

(iii)    a Fitness to Travel Assessment (FTTA), which assesses whether a person in custody is able to undertake travel, with or without support, having regard to any physical or mental health conditions they may have. It is conducted by a qualified and registered health professional who must take into account the physical and mental health of the unlawful non-citizen, the mode of transport required, whether additional clinical or mental health support is required during travel and/or any other special considerations such as in-travel medication administration. A person may be assessed as fit to fly subject to having a medical escort. A Fitness to Travel Assessment for a detainee is mandated by the Aviation Transport Security Regulations 2005 (Cth). Removal will only proceed if a detainee is assessed as fit to travel. A Fitness to Travel Assessment is valid for only 28 days. A Fitness to Travel Assessment is generally scheduled no less than seven days prior to the unlawful non-citizen’s departure.

(c)    If the HDS or FTTA recommends medical escorts, the Department’s Removal from Australia – Escort Arrangements Policy requires that the recommended escorts be used during the removal. In Mr Lynn’s experience:

(i)    he is not aware of any occasions where a person has been removed from Australia where a medical escort has been recommended in a HDS or FTTA, but not secured. Nor is he aware of any cases in which the ABF Operation Commander has not accepted a recommendation for a medical escort;

(ii)    medical escorts can include registered nurses, mental health nurses or doctors, as per the recommendation in the FTTA;

(iii)    he is aware of previous cases where two or more medical escorts have been required, and have been engaged, to travel with an individual by plane to ensure their safety.

Grounds 1 and 2

102    By Grounds 1 and 2, the applicant contends that authority to make the decision to enter into the Interim Arrangement (referred to in the Originating Application as the “Arrangement Decision”), and to enter into the Interim Arrangement (referred to in the Originating Application as the “Arrangement”), was impliedly conditioned on a requirement to afford the applicant procedural fairness (which was not afforded), non-compliance resulting in the Interim Arrangement lacking legal effect under s 76AAA(1)(c).

103    It should be noted at the outset that Grounds 1 and 2 proceed on the basis that an agreement or arrangement was concluded between Australia and Nauru by the exchange of letters between the Minister for Home Affairs and the President of Nauru in the period up to and including 12 February 2025. In the “Details of Claim” section of the Originating Application, the expression “the Arrangement” is defined in para 1, which seeks:

A writ of certiorari quashing the purported legal effects under ss 76AAA(1)(c) and/or 198AHB(1) of the Migration Act 1958 (Cth) (the Act) of the Arrangement Decision: the decision of the First Respondent (the Minister) on about 12 February 2025 to enter into a “third country reception arrangement” described as the “Interim Third Country Reception Arrangement” (the Arrangement) with the Republic of Nauru on behalf of the Second Respondent (the Commonwealth).

The particulars to Ground 1 include the propositions that “the Arrangement affected the interests of the Applicant” (para (b)) and “[t]he Arrangement came into effect on the receipt by the President of Nauru of the letter from the Minister dated 12 February 2025 (para (b)(iv)).

104    The applicant’s submissions, as developed in oral submissions, can be summarised as follows.

105    The applicant submits that there are three propositions that lead to the conclusion that s 76AAA(1)(c) was not satisfied in this case. The first proposition is that s 76AAA(1)(c) is conditioned on procedural fairness, with a variable content standard of the kind described in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 (CPCF) at [367] per Gageler J. The second proposition is that the Interim Arrangement attracted procedural fairness content of “more than zero”. The third proposition is that “zero” procedural fairness was afforded to the applicant. The applicant submits that this leads to the conclusion that s 76AAA(1)(c) was not satisfied by the making of the Interim Arrangement.

106    The applicant relies on the following passage from the judgment of Kiefel CJ and Gageler J in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 (CNY17). Their Honours stated at [16]:

The operative common law principle of statutory interpretation is that observance of procedural fairness is an implied condition of the exercise of jurisdiction by “every one who decides anything” [Board of Education v Rice [1911] AC 179 at 182, quoted in Kioa v West (1985) 159 CLR 550 at 584] pursuant to statute to affect the interests of an individual by force of the statute, unless and to the extent that procedural fairness is clearly excluded by the statutory scheme [Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 658-659 [66], 666-668 [97]-[100]].

(Emphasis added.)

107    The applicant submits that both features referred to the passage from CNY17 set out above are present here. In the applicant’s submission: (a) the decision to enter the Interim Arrangement and entry into the Interim Arrangement were acts or things done “pursuant to statute”; and (b) those acts or things affected the interests of the applicant “by force of the statute”.

108    In relation to the nature of the power being exercised, the applicant refers to the tripartite classification adopted by Brennan J in Davis v Commonwealth [1988] HCA 63; 166 CLR 79 at 108:

It follows that an act done in execution of an executive power of the Commonwealth is done in execution of one of three categories of powers or capacities: a statutory (non-prerogative) power or capacity, a prerogative (non-statutory) power or capacity, or a capacity which is neither a statutory nor a prerogative capacity. The relevant statute defines the scope of a power or capacity in the first category, but there is no express criterion by which non-statutory powers and capacities may be classified as falling within the executive power of the Commonwealth.

109    The applicant submits that this case falls into the first category identified in the above passage, namely an exercise of statutory power or capacity, and that the exercise of power therefore attracts the presumption regarding procedural fairness referred to in the passage from CNY17 set out above. The applicant submits that one should not take a narrow approach to what constitutes an exercise of statutory power.

110    The applicant’s primary submission is that statutory executive power (to enter the Interim Arrangement) was impliedly conferred by ss 198AHB and 76AAA, referring to Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 279 CLR 1 (Davis v Minister) at [126] per Edelman J. In oral submissions, senior counsel for the applicant put the point this way:

We say that, where Parliament creates, by a valid exercise of Commonwealth legislative power, serious legal consequences for the rights of individuals conditioned on the doing of a thing by the Commonwealth or an officer of the Commonwealth, the starting point should be that the doing of that thing proposing to engage that statutory effect is properly characterised as an exercise of statutory power in the sense in which Brennan J defined it in that passage I’ve just referred to, that first category.

111    As a fall-back submission, the applicant submits that, if this is not an exercise of a power conferred by the statute, nevertheless entry into the Interim Arrangement was necessary or incidental to the execution and maintenance of the Migration Act; that is, it was being entered into for that purpose: see Davis v Minister at [89] per Gordon J; Williams v Commonwealth [2012] HCA 23; 248 CLR 156 (Williams) at [22] (first bullet point) and [34] per French CJ. The applicant submits that that is enough to satisfy the first element in the passage from CNY17 at [16] (set out above).

112    The applicant submits that the respondents’ contention that the decision to enter the Interim Arrangement is an exercise of non-statutory executive power should be rejected. The applicant submits that, unlike the Second MOU in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 (Plaintiff M68), the executive government decided to enter the Interim Arrangement in order to trigger a statutory effect under the already-enacted ss 76AAA and 198AHB. The applicant submits that doing a thing to engage statutory effect, given by Parliament, when that kind of thing is done, is an exercise of statutory, not non-statutory, power or capacity.

113    The applicant submits that the respondents’ contention that the decision to enter the Interim Arrangement is not justiciable should be rejected; the reason that exercises of executive power to conduct foreign relations have at times been described as “non-justiciable” is because they often do not affect the municipally recognised rights or interests of an applicant in a manner sufficient to create a matter with respect to which the applicant has standing on ordinary principles (Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 (Ditfort) at 369-370 per Gummow J); yet, even where “the taking of a step in the conduct of international relations ... of itself neither creat[es] private rights nor impos[es] such liabilities” in municipal law, that step “may be a step in a process which as a whole may have that effect” – and, in such cases, “the process may give rise to matters justiciable at the suit of an individual” (Ditfort at 370).

114    The applicant’s next argument is that, even if s 198AHB is construed as conditional on an exercise of purely non-statutory executive power, the procedural fairness presumption is attracted because of the profound legal effect (enacted by Parliament) that is enlivened on the exercise of that power. The applicant relies on the principles relating to procedural fairness stated by Mason J (at 584) and by Brennan J (at 619) in Kioa v West [1985] HCA 81; 159 CLR 550. The applicant submits that, adopting a functional analysis, the procedural fairness condition is attracted by considering the legal effect or consequence of an exercise of power, namely whether it affects rights or interests. The applicant therefore submits that, even if the respondents’ submissions as to the source of power to enter the Interim Arrangement are accepted, it does not follow that legal effect under s 76AAA(1)(c) cannot be conditioned by procedural fairness.

115    The applicant’s second proposition is that the decision to enter the Interim Arrangement, and entry into the Interim Arrangement, attracted procedural fairness content of “more than zero”. The applicant submits that the making of the Interim Arrangement was apt to affect the applicant’s legal rights and interests. The applicant submits that: quite unlike ordinary exercises of the power or capacity to enter foreign relations, the Interim Arrangement was made specifically with respect to the applicant as an individual (and two other individuals); it provided that [REDACTED] “each of the initial 3 persons [its subject] … will receive a long-term stay visa to enter and remain on Nauru” on application of the Commonwealth; its making both in itself and as a “step in a process” taken “as a whole” directly and immediately affected the applicant’s legal rights and interests in a manner which is “substantially different from the manner in which [it was] apt to affect the interests of the public” (Kioa v West at 619); it involved disclosure of the applicant’s personal information to Nauru under s 198AAA and engaged ss 76AAA(1)(c) and 198AHB(1) with respect to him, with “client briefs” being provided by the respondents to Nauru as part of its negotiation; it further involved the making by Nauru of the Nauruan Regulations, [REDACTED], and reg 4 of which imposed on the Nauruan Director of Immigration a duty (“shall”) to grant any application for a permission satisfactory of s 76AAA(1)(b) made by an officer of the Commonwealth in respect of the applicant as the subject of the Interim Arrangement; following application for and mandatory grant of this permission in accordance with the terms of the Interim Arrangement, s 76AAA would then apply (s 76AAA(1)(b)), obliging the Minister (s 76AAA(2), (3)) to give the Notice; this would, in turn, engage ss 189 and 198 (including requiring the applicant’s detention).

116    The applicant’s third proposition is that “zero” procedural fairness was afforded to the applicant. There is no issue about this; the respondents accept that, if procedural fairness applied, it was not afforded to the applicant. The applicant submits that, had he been afforded the opportunity to make submissions or provide relevant material, he would have made representations with respect to his serious health concerns and fears of indirect refoulement.

117    I will now consider the various issues raised by these grounds.

118    The first issue is the nature of the power or capacity exercised by the executive in entering into the Interim Arrangement. In my view, contrary to the applicant’s submissions, this involved an exercise of non-statutory prerogative power or capacity. The wording of s 198AHB(1) is significant. That section provides that the section applies “if” the Commonwealth enters into an arrangement with a foreign country of the type there described. Rather than conferring power to enter into such an arrangement, the section applies “if” the Commonwealth has done so. Thus, the source of power or capacity to enter into such an arrangement is to be found elsewhere. In the absence of a statutory conferral of power or capacity, the source is the non-statutory prerogative power of the Commonwealth to enter into relations with a foreign country.

119    This analysis is consistent with the descriptions of the power or capacity of the Commonwealth to enter into the Second MOU in Plaintiff M68. That case was concerned with s 198AHA, upon which s 198AHB is evidently partly modelled. As noted in the judgment of French CJ, Kiefel and Nettle JJ at [15], s 198AHA had been recently inserted into the Migration Act, but had effect from 18 August 2012. Section 198AHA provided:

(1)    This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country.

(2)    The Commonwealth may do all or any of the following:

(a)    take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;

(b)    make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;

(c)    do anything else that is incidental or conducive to the taking of such action or the making of such payments.

(3)    To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

(4)    Nothing in this section limits the executive power of the Commonwealth.

(5)    In this section:

action includes:

(a)    exercising restraint over the liberty of a person; and

(b)    action in a regional processing country or another country.

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country

120    It is apparent that s 198AHB is partly modelled on s 198AHA. In particular, and of relevance for present purposes, s 198AHB(1) adopts the same form of words (“if the Commonwealth enters into an arrangement …”) as s 198AHA(1).

121    In discussing the nature of the power or capacity exercised by the Commonwealth in entering into the Second MOU under consideration in Plaintiff M68, Gageler J stated at [178]:

Entering into the Second Memorandum of Understanding was not itself an act which falls within the scope of the authority retrospectively conferred by the section, but rather involved the exercise by the Executive Government of its non-statutory prerogative capacity to conduct relations with other countries.

122    In my view, the same analysis is applicable to the Interim Arrangement, having regard to the similarity between s 198AHA(1) and s 198AHB(1) and the similarity between the Second MOU and the Interim Arrangement. It is true that, in Plaintiff M68, s 198AHA(1) was enacted later with retrospective effect. But that does not appear to be the basis for the analysis set out above. The same topic was referred to by Bell J at [68]. Her Honour stated:

Section 198AHA was inserted into the Migration Act by the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth). It has effect from 18 August 2012. On 29 August 2012 the Commonwealth entered into a Memorandum of Understanding with Nauru relating to the transfer of persons to and assessment of persons in Nauru. That Memorandum of Understanding was superseded by the Memorandum of Understanding signed on 3 August 2013, which remains in effect (the MOU). Each Memorandum of Understanding was entered into in the exercise of the non-statutory executive power of the Commonwealth to establish relations with other countries [R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 643-644 per Latham CJ].

(Emphasis added.)

123    In my view, and contrary to the applicant’s submissions in the present case, that analysis is to the same effect as that of Gageler J set out above.

124    This topic was also referred to by Keane J at [201]:

For the purposes of s 198AHA(1) of the Migration Act, and pursuant to the non-statutory executive power of the Commonwealth under s 61 of the Constitution, on 3 August 2013 the Commonwealth and Nauru signed the “Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues” (the MOU). The MOU superseded a previous memorandum of understanding between the governments of the two countries which had been signed on 29 August 2012.

(Emphasis added.)

125    Again, in my view, and contrary to the applicant’s submissions, the above passage is consistent with the analysis of Gageler J set out above. I note for completeness that, at [365], Gordon J stated that the arrangement in issue in that case was “authorised as an act within the non-statutory power of the executive or as an act in execution of the statutory power given in s 198AHA” (see also [370], to similar effect). However, the point being made was that the arrangement was authorised, and it was unnecessary for the purposes of her Honour’s analysis to determine the basis of that authorisation.

126    Further, I do not accept the applicant’s submission that entry into the Interim Arrangement involved an exercise of statutory power or capacity because it was necessary or incidental to the execution and maintenance of the Migration Act. Section 198AHB(1) provides that the section applies “if” the Commonwealth enters into an arrangement with a foreign country of the type described. Entry into such an arrangement is one of the criteria for operation of the section. However, this does not mean that entry into such an arrangement is necessary or incidental to the execution and maintenance of the Act.

127    For these reasons, I do not accept the applicant’s submission that the Interim Arrangement was entered into in the exercise of statutory power. In my view, it was entered into in the exercise of non-statutory prerogative power.

128    The next issues are whether the applicant’s contentions are justiciable and whether the decision to enter into the Interim Arrangement, and entry into the Interim Arrangement, were conditioned by an obligation to afford procedural fairness to the applicant. There is some overlap between the parties’ submissions on these issues. I will consider, first, the question whether there was an obligation to afford the applicant procedural fairness.

129    I have concluded, above, that entry into the Interim Arrangement involved an exercise of non-statutory power or capacity. The respondents did not submit that an exercise of non-statutory power could never be the subject of judicial review. They submitted that whether judicial review is available will depend on the nature of the non-statutory power in question. I will proceed on the basis that the fact that the power or capacity in question is non-statutory does not necessarily preclude application of the principles of procedural fairness: see Sapienza, A, Judicial Review of Non-Statutory Executive Action (Federation Press, 2020) at p 145, citing Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 and Victoria v Master Builders Association [1995] 2 VR 121.

130    That said, I consider that there are insuperable difficulties in applying the principles of procedural fairness to the decision to enter the Interim Arrangement, or entry into the Interim Arrangement, given the nature of the arrangement in this case. I accept the respondents’ submission that whether an exercise of non-statutory executive power is conditioned by procedural fairness depends on the nature of the power and the circumstances of its exercise: see, eg, CPCF at [508]-[509] per Keane J; Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 411 per Lord Diplock. The Interim Arrangement was an agreement or arrangement between Australia and a foreign state. Agreements of this kind are necessarily the product of negotiations at the highest levels of government. Such negotiations will often be conducted in secrecy owing to the political and diplomatic sensitivity of their subject matter. There were likely issues of timing in relation to the communications that were sent by the Australian government to Nauru, such that an obligation to afford procedural fairness to the applicant may well have interfered with the Australian government’s capacity to conduct relations with Nauru. In light of these matters, it would have been wholly impractical and incongruous for entry into the Interim Arrangement to have been conditioned on an obligation to afford the applicant procedural fairness (no matter how attenuated the content of procedural fairness might have been). It is unnecessary to consider the correctness of the broader proposition, put by the respondents, that an exercise of the power to enter into relations with foreign countries is never conditioned on procedural fairness because that would impair the executive government’s capacity to conduct foreign affairs: as I have concluded, the nature of the exercise of power in this case is inconsistent with an obligation to afford procedural fairness.

131    It may be accepted that the Interim Arrangement affects the rights and interests of the applicant (and the other two individuals), as a matter of municipal law, in a way that is distinct from persons generally. However, notwithstanding that matter, for the reasons given above, in my view, there are insuperable difficulties in applying the principles of procedural fairness here.

132    In light of the conclusion I have reached on the procedural fairness issue, it is unnecessary to consider the issue of justiciability.

133    I therefore reject Grounds 1 and 2.

Proposed new ground 2A

134    By way of background, I note that, in para 3 of the applicant’s reply written submissions, it was submitted: “Moreover, to attract municipal consequences, ‘treaties must be bona fide agreements between states and not instances of a foreign government lending itself as an accommodation party’ to an Australian scheme”, citing Koowarta v Bjelke-Petersen [1982] HCA 27; 153 CLR 168 at 216. That point was referred to in the applicant’s oral opening submissions, and was responded to in the respondents’ oral opening submissions.

135    In the course of closing oral submissions in relation to Grounds 1 and 2, senior counsel for the applicant made submissions to the effect that, if the statutory provisions (ss 76AAA and 198AHB) are conditioned on an exercise of non-statutory prerogative power, then the arrangement here was not a bona fide exercise of that power. The factual basis for the contention was [REDACTED], in circumstances where Australia had secured an agreement or arrangement for the purposes of ss 76AAA and 198AHB. Senior counsel submitted:

What we say is if it’s conditioned on a non-statutory exercise of prerogative power - that is, purely French [CJ’s] third dot point [in Williams at [22]] - if that’s how you construe the statute, then the arrangement as at the time of the notice is not a bona fide exercise of non-statutory executive power, because it has been - [REDACTED].

(Emphasis added.)

136    In the context of these submissions, the Court asked senior counsel whether this contention was covered by the Originating Application. Senior counsel described this as a “reply point” in the sense that the applicant contended in the Originating Application that this was an exercise of statutory power; the respondents responded that it was not; and the applicant in his reply written submissions had questioned whether this actually was a non-statutory prerogative arrangement of the kind to which the condition in ss 76AAA and 198AHB attaches.

137    After further discussion with the Court, senior counsel said that he accepted that, if the Court accepted the respondents’ construction, and the applicant wished to assert that therefore s 76AAA is not attracted for that reason, the contention was not reflected in the Originating Application.

138    Later in the hearing, the applicant applied orally for leave to amend the Originating Application to insert a new ground 2A. The ground, including particulars, is as follows:

2A.    If s 198AHB(1) and s 76AAA are conditioned on the Commonwealth having exercised non-statutory executive (prerogative) power, the [Interim] Arrangement did not satisfy that condition.

Particulars

1.    The [Interim] Arrangement was not, on its own, an arrangement entered into as an exercise of non-statutory executive (prerogative) power.

2.    Rather, the [Interim] Arrangement was a part of an arrangement that – at the time of the Notice – [REDACTED].

3.    On its own, the [Interim] Arrangement was designed solely to attract domestic municipal consequences and was not on its own an arrangement entered into in the exercise of non-statutory executive (prerogative) power.

4.    If s 198AHB(1) and s 76AAA are conditioned on the Commonwealth having exercised non-statutory executive (prerogative) power, then the question whether the Commonwealth has exercised non-statutory executive (prerogative) power is justiciable as part of a matter in which it is claimed that s 76AAA is not engaged.

139    As noted above, the respondents opposed the application for leave to amend, submitting that they would be prejudiced. They submitted that, had the ground been raised earlier, the evidence might have been different. They also submitted that leave to amend should be refused because the ground was manifestly hopeless.

140    In my view, leave to amend should be refused. The contention raises substantial factual issues that were not raised in the Originating Application or in opening submissions. While these factual issues were explored during the cross-examination of Ms Strugnell, that is not a satisfactory or fair way for the point to be dealt with. Had the respondents been on notice that an issue in the case was whether the Interim Arrangement [REDACTED], it is likely that this would have been dealt with in the respondents’ evidence in chief. The evidence on this point may well have been different (eg, more extensive). Accordingly, I refuse leave to amend.

Grounds 3 and 4

141    By Grounds 3 and 4, the applicant contends that authority to make the decision (referred to in the Originating Application as the “Permission Decision”) to produce the “permission” for the applicant under the Interim Arrangement was impliedly conditioned on a requirement to afford the applicant procedural fairness (which was not afforded), non-compliance resulting in any visa in fact granted by Nauru not being a “permission” having legal effect under s 76AAA(1)(b).

142    These grounds are, in some respects, more straightforward than Grounds 1 and 2 because it is common ground that the act of applying for the Nauruan Visa was an exercise of statutory power, namely the power conferred by s 198AHB(2). That section provides that the Commonwealth “may do any or all of the following: … (a) take, or cause to be taken, any action … in relation to the third country reception arrangement …”.

143    The applicant relies on well-established principles relating to the implication of an obligation to afford procedural fairness in relation to statutory powers. In Kioa v West, Brennan J stated at 619:

The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. …

If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. … Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public.

144    In Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636, Gummow, Hayne, Crennan and Bell JJ stated at [97]:

The principles and presumptions of statutory construction which are applied by Australian courts, to the extent to which they are not qualified or displaced by an applicable interpretation Act, are part of the common law. … It is in this sense that one may state that “the common law” usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power [Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 100-101 [39]-[41]]. If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive.

145    In Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180, all seven members of the High Court (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ) stated at [75]:

… it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.

146    The applicant submits that the Commonwealth’s application for the “permission” was apt to affect the applicant’s legal rights and interests in a manner attractive of an obligation to afford him procedural fairness, referring to his submissions in relation to Grounds 1 and 2. The applicant submits that: the application for the visa involved disclosure under s 198AAA of the applicant’s information to Nauru; under reg 4 of the Nauruan Regulations, Nauru’s officer was obliged to grant any application for a permission satisfactory of s 76AAA(1)(b) upon the making of a decision by an officer of the Commonwealth in respect of the applicant; the only real exercise of discretion, and power, was that of the officer of the Commonwealth in deciding to request the “permission”.

147    The applicant submits that, if that power be exercised by an officer of the Commonwealth, the following consequences follow:

(a)    permission satisfactory of s 76AAA(1)(b) is imposed on the subject BVR holder;

(b)    a notice is issued under s 76AAA(2), with the effect in s 76AAA(4); and

(c)    the subject is detained under s 189 and then removed under s 198.

148    The applicant submits that that automated mechanism is distinct from the preliminary discretion in a chain of discretionary decision-making, in which an initial decision was thought (in the older cases) not to have a direct effect on an applicant’s rights or interests. The applicant submits that this is underlined by the fact that the permission was processed within 24 hours. The applicant submits that there is a realistic possibility that matters raised by the applicant could affect the making of any application for a “permission” with respect to him. The applicant submits that nothing in s 198AHB excludes or limits procedural fairness obligations; a “person’s right to a reasonable opportunity to present a case ... [cannot] usually be abolished by Parliament by a nudge and a wink”: Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 at [70] per Edelman J, citing BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [56].

149    The applicant submits that procedural fairness was (materially) denied because the applicant was unaware of the making of the decision to apply for the “permission” and given no opportunity to make submissions or provide material relevant to it. The applicant submits that had he been given an opportunity to make such submissions, he would have raised his serious health concerns and fears of indirect refoulement.

150    In oral submissions, the applicant submitted that, for there to be a “permission” for the purposes of Australian law (s 76AAA(1)(b)), the asserted permission must be the product of a procedurally fair process. Accordingly, if the applicant’s submissions regarding a denial of procedural fairness (in relation to the application for the “permission”) are accepted, there was no “permission” for the purposes of s 76AAA(1)(b).

151    Although the respondents’ written submissions in relation to Grounds 3 and 4 referred to an issue of justiciability, in oral submissions the respondents accepted that where the source of the power is statutory, the Court can review the lawfulness of that exercise of statutory power. Given the respondents’ concession that the source of the power to apply for the Nauruan visa was statutory (namely s 198AHB(2)), the issue of justiciability therefore falls away.

152    In my view, for the reasons that follow, the exercise of the power (conferred by s 198AHB(2)) to apply for the visa for the applicant was not conditioned by an obligation to afford the applicant procedural fairness.

153    I accept the applicant’s submission that the exercise of the power to apply for the visa was apt to affect the applicant’s rights and interests. That is because of the legislative scheme and the facts of the case. Once the application for the visa was made, it was practically inevitable that the Nauruan Visa would be granted, that s 76AAA would therefore apply in relation to the applicant, and that the Minister would therefore give notice to the applicant as referred to in s 76AAA(2), with the effect that the applicant’s BVR would cease to have effect. He would therefore be liable to detention and removal to Nauru. The scheme of the legislation, together with the form of the Nauruan Regulations, was such that these consequences followed automatically from the application for the visa.

154    I do not accept the respondents’ submission that the application for the visa did not affect the rights and interests of the applicant in a “direct and immediate way”, referring to Kioa v West at 584 per Mason J (see also 632 per Deane J). The reference in the judgment of Mason J to decisions that affect rights or interests in a “direct and immediate way” needs to be read in context. When so read, it is apparent that the requirement is closely related to the proposition that the decision must be one that affects the person individually and not simply as a member of the public or a class of the public. This is also true of the passage in Deane J’s judgment at 632. See generally the discussion in Aronson, M, Groves, M and Weeks, G, Judicial Review of Administrative Action and Government Liability (7th ed, Lawbook Co, 2022), [8.70]. In the present case, the application for the visa for the applicant did affect the applicant individually and not merely as a member of the public or a class of the public. Further, any requirement that rights or interests be affected in a direct and immediate way should in my view be approached as a matter of substance rather than form. Here, the cascading and practically inevitable consequences (outlined above) of the application for the visa for the applicant are sufficient to establish that the application for the visa affected the applicant’s rights and interests in a direct and immediate way.

155    However, in my view, the statutory scheme is inconsistent with the implication of an obligation to afford procedural fairness in relation to an exercise of power under s 198AHB(2) to apply for a visa for a BVR-holder.

156    Section 198AHB is contained within Pt 2, Div 8 of the Migration Act, which is entitled “Removal of unlawful non-citizens etc”. The critical features of the scheme comprised by ss 76AAA and 198AHB are that: it applies to non-citizens who (subject to a limited exception) have exhausted their legal avenues to obtain permission to remain in Australia but in respect of whom (apart from these provisions) removal from Australia is not reasonably practicable; and the purpose of the scheme is to facilitate the removal of such non-citizens from Australia to a third country that has entered into an arrangement with Australia to receive such persons.

157    That the scheme applies to such non-citizens flows from the requirement in s 76AAA(1)(a) that the non-citizen holds a BVR. The eligibility criteria for a BVR are set out in reg 2.20(12) of the Migration Regulations 1994 (Cth) and clauses 070.211 to 070.223 of Sch 2 to the Migration Regulations. In summary, a non-citizen is eligible for a BVR if: (a) the non-citizen is in immigration detention; (b) the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at that time; (c) the Minister is satisfied that the non-citizen will do everything possible to facilitate the non-citizen’s removal from Australia; and (d) any visa applications made by the non-citizen (other than an application made following the exercise of the Minister’s power under s 48B of the Migration Act) have been finally determined. Thus, persons holding a BVR are non-citizens who (subject to the limited exception relating to s 48B) have exhausted their legal avenues to obtain permission to remain in Australia (i.e. they do not have a substantive visa) but in respect of whom (apart from the provisions under present consideration) removal from Australia is not reasonably practicable.

158    It is also apparent from the eligibility criteria for a BVR that persons holding BVRs are non-citizens who would be removed from Australia to their country of origin (eg, because of the removal obligation in s 198(2B) of the Migration Act) if there were not some legal or practical impediment to that occurring. This is illustrated by the applicant’s circumstances: as referred to above, his protection visa was cancelled, the cancellation was upheld by the Administrative Appeals Tribunal, and the applicant’s application for judicial review of the Tribunal’s decision was unsuccessful.

159    The purpose of the scheme of ss 76AAA and 198AHB is to enable non-citizens holding a BVR to be removed from Australia and received by a third country where they can live. In Plaintiff M68, Keane J said of s 198AHA that it “seeks to ensure the reasonable practicability of removal to a country willing and able to receive” the persons to whom it applies: at [259]. The same is true of s 198AHB.

160    A further feature of the scheme is that, for s 76AAA to apply, none of the exceptions in s 76AAA(1)(d) applies. Thus, s 76AAA will not apply if: (i) the non-citizen has made a valid application for a protection visa that has not been finally determined; (ii) the non-citizen could not be removed to the foreign country because of s 197C(3) if the non-citizen were an unlawful non-citizen; or (iii) the non-citizen is a child under 18. This provision marks out (it would seem, exhaustively) the exceptions to removal to a third country where the criteria in s 76AAA(1)(a), (b) and (c) are satisfied.

161    In my view, these features of the statutory scheme are inconsistent with the implication of an obligation to afford a person procedural fairness in relation to an exercise of power under s 198AHB(2) to apply for a visa for the person. It would undermine and frustrate the objective of the scheme, which is removal from Australia to a third country of non-citizens holding a BVR, subject only to the exceptions in s 76AAA(1)(d); and it would be inconsistent with the place of s 198AHB in this scheme, which is to make such removal practicable.

162    I accept that it would be possible to give a BVR-holder notice of a proposed application for a visa for the person, and to give them an opportunity (for example) to make a submission on whether the BVR-holder should be removed to a third country. However, having regard to the features of the scheme as outlined above, it is most unlikely that Parliament intended that this be required as part of a valid exercise of the power conferred by s 198AHB(2); the very purpose of s 198AHB(2) in the statutory scheme is to facilitate removal of non-citizens holding a BVR to a third country, in a context where those persons have (subject to one limited exception) exhausted their legal avenues to remain in Australia.

163    I note that s 76AAA(5) expressly provides that the rules of natural justice do not apply to the giving of a notice under s 76AAA(2). I consider this provision to be neutral in terms of the exercise of statutory construction. On the one hand, it might be said that the absence of any such provision in relation to s 198AHB(2) leads to an inference that Parliament did not intend to exclude the rules of natural justice. On the other hand, it might be said that s 76AAA(5) is indicative of Parliament’s intention that the rules of natural justice do not apply to the scheme. In the end, I do not consider that much can be drawn, one way or the other, from the presence of s 76AAA(5). It therefore does not affect my conclusion as set out above.

164    The legislative provisions under consideration in CPCF were very different from those in issue in the present case. Therefore, although the High Court in that case concluded that, on the proper construction of the relevant provision (s 74(4) of the Maritime Powers Act 2013 (Cth)), there was no obligation to afford procedural fairness, the decision does not offer direct assistance beyond illustrating the importance of the factual and statutory context in deciding whether a statutory power is conditioned by an obligation to afford procedural fairness.

165    In light of the above conclusion, it is unnecessary to consider two alternative contentions advanced by the respondents. Those contentions were that non-compliance with any obligation of procedural fairness did not result in: (a) the invalidity, as a matter of Nauruan law, of the Nauruan Visa; or (b) the Nauruan Visa ceasing to answer the description of “permission (however described)” in s 76AAA(1)(b).

166    For these reasons, I conclude that Grounds 3 and 4 are not made out.

Ground 5

167    By Ground 5, the applicant contends that the decision to give the Notice, and the Notice, have no legal effect under s 76AAA (Ground 5). This ground is largely consequential on the preceding grounds. However, in addition to the matters raised by the previous grounds, the applicant raises two additional contentions. I will address each in turn.

Whether applicant holds a valid Nauruan visa

168    The applicant contends that he does not hold a valid Nauruan visa and therefore he does not have “permission” granted by Nauru to enter and remain in that country. This aspect of Ground 5 is particularised in the Originating Application as follows:

(d)    Alternatively, the Applicant does not hold “permission (however described), granted by [Nauru], to enter and remain in that country” for the purposes of s 76AAA(1)(b) of the Act because:

(i)    s 10(1) of the Immigration Act 2014 (Nauru) (the Nauruan Immigration Act) makes entry to Nauru an offence for a person who is not a citizen of Nauru and who does not hold a “valid visa”. A “visa” means “a visa [validly] granted under the Regulations” (s 3).

(ii)    the Applicant does not hold a “valid visa” within the meaning of s 10(1) of Nauruan Immigration Act because, if an officer of Nauru had any substantive discretion in respect of whether to grant the Applicant a Nauruan Visa, on receipt of the email from an officer of the Commonwealth on 14 February 2025:

a.    that officer constructively failed to exercise that jurisdiction, or acted under dictation, in that the officer knew that the President of Nauru had already agreed with the Minister (or the Commonwealth), by or in connection with the [Interim] Arrangement, that the Applicant would be given a Nauruan Visa: see [1(b)(ii)–(vii)] above.

b.    alternatively, that officer was obliged to afford the Applicant procedural fairness, because grant of the Nauruan Visa was apt adversely to affect the interests of the Applicant by reason of the matters particularised in [3(c)(ii)–(vi)] above, and failed to afford to the Applicant any notice or opportunity to be heard before granting a Nauruan Visa.

169    I note that neither party called any expert evidence as to Nauruan law. Both parties proceeded on the basis that the Court should apply the presumption that Nauruan law is the same as Australian law to the extent not proven otherwise: Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331 at [125] per Gummow and Hayne JJ.

170    Applying the presumption that Nauruan law is the same as Australian law to the extent not proven otherwise, I consider that the power under reg 4 of the Nauruan Regulations is mandatory because the word “shall” means “must”. There does not appear to be any dispute about this. It follows from this that there is no question of the Nauruan officer acting under dictation in granting the Nauruan Visa. Further, given that mandatory obligation, there is no implied obligation to afford procedural fairness.

171    In light of those conclusions, it is not necessary to consider another point relied on by the respondents, namely that it is sufficient for the purposes of s 76AAA(1)(b) that there is in fact a permission granted by the third country (whether or not the permission is legally valid according to the law of that country).

172    For these reasons, this aspect of Ground 5 is not made out.

Whether real risk of indirect refoulement

173    The applicant contends that the exception in s 76AAA(1)(d)(ii) is engaged. Sub-paragraph (ii) is: “the non-citizen could not be removed to the foreign country [i.e. Nauru] because of sub-section 197C(3) if the non-citizen were an unlawful non-citizen”. The applicant contends that there would be a real risk of indirect refoulement were he removed to Nauru, and that this falls within the exception in s 76AAA(1)(d)(ii).

174    This aspect of Ground 5 raises both legal and factual issues. The legal issue concerns the construction of s 197C and whether it covers indirect refoulement. The factual issue is whether there is a real risk of indirect refoulement, were the applicant removed from Australia to Nauru.

175    I will commence with a consideration of the factual issue. The applicant submits that, because [REDACTED], there is a real risk of indirect refoulement (i.e. that Nauru will send the applicant to Iran). The applicant also relies on [REDACTED], submitting that the [REDACTED].

176    In my view, the applicant has not established that there is a real risk of indirect refoulement, were he removed from Australia to Nauru. Attachment A, which forms part of the Interim Arrangement, provides in para 6(a) that Nauru will provide “[t]reatment in accordance with international legal obligations”. I note that Nauru is a state party to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. Further, para 6(f) provides that there will be “[n]o risk of chain refoulement”. These provisions of the Interim Arrangement provide significant comfort that there is no real risk of indirect refoulement, in the absence of evidence to the contrary.

177    In this context, the matters relied on by the applicant are insufficient to create any real concern. The statements in [REDACTED] (even if the [REDACTED] were accepted as fully accurate). [REDACTED]. The facts that [REDACTED], do not suggest that Nauru will not abide by the Interim Arrangement (and, in particular, the provisions referred to above regarding international legal obligations and no risk of chain refoulement).

178    For these reasons, the factual basis of this aspect of Ground 5 is not made out. It is therefore unnecessary to consider the legal issue concerning the construction of s 197C.

Ground 6

179    By Ground 6, the applicant contends that removal of the applicant to Nauru is not authorised or required by s 198. Section 198(2B) has been set out at [36] above. It provides that an officer must remove as soon as “reasonably practicable” an unlawful non-citizen if certain criteria are satisfied. The issues raised by Ground 6 concern the requirement that removal be “reasonably practicable”.

180    In part, Ground 6 is consequential on the earlier grounds. In part, this ground relies on two additional points. I will consider each of those additional points in turn.

The applicant’s medical conditions

181    The applicant contends that it is not “reasonably practicable” to remove him to Nauru due to his medical conditions and the inadequacy of medical facilities on Nauru. The relevant particulars of Ground 6 are as follows:

(c)    Alternatively, the removal of the Applicant from Australia to Nauru is not “reasonably practicable” within the meaning of s 198, because:

(i)    the Applicant suffers from severe and uncontrolled asthma, which requires regular emergency treatment in intensive care units and care by respiratory specialists, ongoing management by respiratory specialists and access to specialist respiratory treatment and which is exacerbated by changes in environment and stress;

(ii)    without ready access to intensive and specialised medical treatment and management of the kind referred to in (i) above, there is a real risk that the Applicant will suffer serious harm or death;

(iii)    removal of the Applicant to Nauru would involve a significant change in his environment and stress upon him;

(iv)    the medical care in Nauru is inadequate to treat the Applicant’s medical condition;

(v)    medical evacuation of the Applicant from Nauru to the Republic of Fiji for adequate medical care would not be possible or alternatively practicable, including because the Applicant is a “prohibited immigrant” within the meaning of s 11(2)(f) of the Immigration Act 2003 (Fiji).

(d)    Alternatively, the removal of the Applicant from Australia to Nauru is not “reasonably practicable” within the meaning of s 198, because:

(i)    by reason of the matters pleaded above, from at least the time the Notice was served:

[a.]    the Commonwealth has owed the Applicant a non-delegable duty of care to ensure

[b.]    alternatively, the Respondents, have owed the Applicant a duty of care to take

reasonable care to prevent the Applicant suffering death or serious harm from the exercise of their statutory powers.

(ii)    by reason of the matters in [6(c)(i)–(v)] above, removal of the Applicant from Australia to Nauru would, alternatively is sufficiently likely to, constitute a breach of that duty.

182    I will first consider the matters raised by paragraph (c) above.

183    It is established by Full Court authority that the reference to reasonable practicability in s 198 does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 (NATB) at [53] per Wilcox, Lindgren and Bennett JJ (see also [48]-[52], [55]-[59]); WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 1332; 84 ALD 655 (WAJZ) at [82], [86] per French J. In NATB, the Full Court stated at [53]:

In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.

184    In WAJZ, French J stated at [86]:

Having regard to the judgment of the Full Court in NATB, I am bound to accept that the duty and power to remove an unlawful non-citizen from Australia pursuant to s 198(6) is not conditioned upon the non-existence of any medical condition that would deteriorate upon that person’s removal. This is subject to the proviso that the person is capable of undertaking the journey and is not, by reason of any medical condition, a danger to himself or others on it. Nor is the existence of such a medical condition a mandatory relevant factor to be considered before a person can be removed provided that the person can undertake the journey in a practical sense without danger to himself or to others.

185    Having regard to these authorities, the fact that (as I have found) the medical services available in Nauru are inadequate to deal with the applicant’s condition of severe asthma does not make it not “reasonably practicable” to remove the applicant from Australia to Nauru.

186    I note for completeness that the applicant made a formal submission that NATB is wrong. However, of course, I am bound to follow it.

187    Insofar as the applicant contends that he is not capable of undertaking the journey from Australia to Nauru due to his medical conditions, the applicant’s medical conditions may well be relevant to whether it is “reasonably practicable” for him to undertake the journey: see WAJZ at [86]. I have found that the risk posed to the applicant (in connection with his condition of severe asthma) by airplane travel from Australia to Nauru would depend on his medical condition in the weeks leading up to travel, and that the risk could be managed or reduced by: (a) monitoring the applicant’s symptoms in the days and weeks leading up to the date of travel; (b) conducting a proper assessment of the applicant’s asthma before travel; and (c) having appropriate medical assistance available on the flight. These are matters that will need to be assessed in the lead-up to, and at the time of, travel. The findings that I have made do not support a conclusion that removal is necessarily not “reasonably practicable”.

188    Accordingly, the contention in para (c) of the particulars is not made out.

189    Turning to para (d) of the particulars, assuming that a duty of care has arisen, the scope of any such duty insofar as it relates to removal of the applicant from Australia to Nauru does not go beyond the statutory powers and duties of an officer under s 198. “A duty cannot arise where it would be inconsistent or incompatible with the statutory powers or duties imposed on the statutory authority or it would be incoherent with the statutory framework”: Electricity Networks Corporation v Herridge Parties [2022] HCA 37; 276 CLR 271 at [27] per Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ. Accordingly, the applicant’s contention based on a duty of care does not take his case any further than the arguments based on s 198. The contention in para (d) is therefore not made out.

Indirect refoulement issue

190    The applicant contends that removal of the applicant to Nauru is not authorised by s 198 because there would be a real risk of indirect refoulement. This aspect of Ground 6 depends on the applicant establishing that there is a real risk of indirect refoulement were he removed from Australia to Nauru. For the reasons given at [176]-[177] above, I am not satisfied that there is a real risk of indirect refoulement. Accordingly, the aspect of Ground 6 relating to indirect refoulement is not made out.

Conclusion

191    It follows from the above that the Originating Application is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore make an order that the applicant pay the respondents’ costs of the proceeding, but I will give the parties the opportunity to make submissions if they seek a different order as to costs.

Associate:

Dated:    26 May 2025