Federal Court of Australia

LWU25 v Minister for Immigration and Citizenship [2026] FCA 973

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application be dismissed.

2.    The Applicant pay the Respondents costs of the interlocutory application.

3.    The Respondents provide to the Chambers of Justice Burley draft orders for the future conduct of the proceeding by 20 August 2026.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

BURLEY J:

1    The applicant is a citizen of Iraq who is affected by the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137. That decision related to the lawfulness of detaining a non-citizen for an indefinite period without judicial order, and whether that infringes Ch III of the Constitution in that it would involve an exercise of judicial power of the Commonwealth, by the Executive. As a result of that decision, those identified as unlawful non-citizens whose removal from Australia has no real prospect of becoming practicable in the reasonably foreseeable future are ‘NZYQ affected’ persons.

2    The applicant seeks interlocutory relief to restrain the first respondent, the Minister for Immigration and Citizenship from deporting him to Nauru. He arrived in Australia in about 1993 and was initially granted a Global Special Humanitarian visa and later a Resident Return visa. In 2018 his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) as a result of his conviction for serious crimes, including armed robbery, possession of prohibited drugs and damage to property for which he was sentenced to nine years imprisonment with a non-parole period of five years. He did not seek revocation of the cancellation.

3    On 10 October 2020 the applicant was released from criminal custody and detained under s 189 of the Migration Act in immigration detention.

4    In February 2023, the applicant applied for a protection visa, which was refused in October 2024. Because of his criminal conduct, he did not meet all of the criteria for the visa, but a “protection finding” was made for him as a result of which, by s 197C(3) of the Migration Act, his deportation from Australia to Iraq is prohibited. The applicant challenged the decision to refuse him a protection visa, but the Administrative Review Tribunal did not uphold his challenge and he did not appeal from the decision.

5    Between 14 October 2024 and 9 October 2025, the applicant lived in the community on a Subclass 070 (Bridging) (Removal Pending)) visa (Bridging R Visa).

6    On 8 October 2025 he was granted a 30-year Long-Term Stay visa by the Department of Justice and Border Control of the Government of the Republic of Nauru. The consequence was that by operation of s 76AAA(4) of the Migration Act, the applicant’s Bridging R Visa ended upon the grant. The applicant was served with documentation notifying him of the cessation of his Bridging R visa on 9 October 2025 and on 10 October 2025 he was detained as an unlawful non-citizen subject to transportation to Nauru.

7    On 10 October 2025, the applicant was also given a notice of intention to remove from Australia on or after 17 October 2025.

8    On 16 October 2025, an originating application was filed on behalf of the applicant by his then solicitors, seeking relief under s 39B of the Judiciary Act 1903 (Cth). That application advanced a challenge to the validity of s 76AAA of the Migration Act. In ground 1, it seeks a declaration that s 76AAA is invalid because it infringes Ch III of the Constitution. In ground 2, it seeks a declaration that the Memorandum of Understanding on the Resettlement Arrangement, entered into on 29 August 2025 between the Commonwealth of Australia and the Government of the Republic of Nauru is invalid insofar as it relates to the transportation of the applicant to Nauru because it also infringes Ch III of the Constitution.

9    The particulars appended to ground 1 refer to the Memorandum of Understanding as being entered for Nauru to grant 30-year temporary visa to persons who are NZYQ affected. They recite that the applicant is such a person and that the transportation of the applicant to Nauru would be punitive, which the Parliament and Executive branches of government in Australia do not have authority to impose, citing YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; 419 ALR 457.

10    The originating application also contends that the applicant’s transportation to Nauru does not serve a legitimate and non-punitive purpose given it is selectively imposed on him as an NZYQ affected person.

11    On 11 November 2025, the proceeding was adjourned to a date to be fixed after the determination of a related constitutional matter which was to consider the validity of s 76AAA of the Migration Act to authorise and require the removal of that appellant, TCXM, to Nauru.

12    TCXM was an NZYQ affected person who had been proposed by the Commonwealth of Australia to be removed to Nauru pursuant to s 198(2B) of the Migration Act. The appeal concerned the lawfulness of the Australian Government entering into an Interim Third Country Reception Arrangement (within the meaning of s 198AHB of the Migration Act) with Nauru, and the constitutional validity of the removal of TCXM to Nauru.

13    On 6 May 2026, TCXM v Minister for Immigration and Citizenship [2026] HCA 13 was delivered. The High Court held that the Interim Third Country Reception Arrangement with Nauru was valid and that despite the finding that the appellant in that case was at a high risk of harm or premature death owing to the standard of accessible healthcare in Nauru, and his underlying health conditions, he could be removed to Nauru. The High Court also held that it was within the power of the government to remove TCXM to Nauru, and that it was not a punitive act in the circumstances.

14    Following the delivery of TCXM, there was some discussion between the parties regarding the consequences of that decision for the present application. The matter was held in abeyance for a while, and the matter was listed for case management on 10 June 2026. Prior to then, the solicitor representing the applicant filed a notice of ceasing to act. The Notice of Address for Service was due on 11 June 2026 and so the proceedings were adjourned to 15 July 2026 to enable the applicant time to file that Notice of Service.

15    On 14 July 2026, the Minister wrote to the Court indicating that no Notice of Service had been filed and that the solicitors for the Minister had been in contact with the applicant directly. The Minister confirmed the applicant was self-represented.

16    The Minister sent a letter on the same day to the applicant indicating that arrangements had been made for his removal to Nauru on or after 22 July 2026, asking whether he agreed or disagreed with his planned removal, whether he wanted to continue proceedings after removal, and if so, any contact details for him in Nauru. That letter also indicated that an answer to those questions could be provided to the Court at the case management hearing before me on the next day.

17    On 15 July 2026 the applicant indicated to the Court that he wanted to continue his proceedings and have them heard. I informed the applicant that I would treat his indication as an oral interlocutory application for an urgent interlocutory injunction to restrain the Minister from removing him from Australia to Nauru until the determination of this proceeding or further order. Directions were made listing the proceeding for hearing on 21 July 2026. The applicant indicated that he could not read or write and as a result I directed that the Minister ensure his access to a case worker to enable him to understand the case put against him by the Minister.

18    The applicant filed no evidence or written submission. The Minister relies on an affidavit of Madisen Scott, a solicitor with the Australian Government Solicitor, in opposition to the application and filed submissions in opposition to the relief sought. Both were provided to the applicant in advance of the hearing and explained to him by the case worker.

19    The hearing was conducted on 22 July 2026. The applicant made no substantive submissions going to the legal validity of the decision to deport him, however, he did make submissions to the effect that it was unfair for him to be removed from Australia, that he has no support network in Nauru, and that he is likely to suffer harm if he was sent to Nauru. He made submissions about his personal journey as a child from Iraq to the present, including his lack of education and the difficulties he has suffered. He also referred to the consequences of removal to Nauru on himself and his family, and particularly his son. He submitted that he was not guilty of some of the offences for which he has been convicted, and argued that being deported to Nauru would cause him great harm because of the conditions there.

20    The Minister contends that the applicant advances no basis on which it may be said that he has a prima facie case in favour of the relief that he now seeks and that the balance of convenience does not support the grant of interlocutory relief, citing ABC v O’Neill [2006] HCA 46; 227 CLR 57 at [65] (Gummow and Hayne JJ).

21    In my view there is no substantive basis upon which the applicant may resist his removal to Nauru. The applicant’s case is very similar to that advanced in TCXM, which was rejected by the High Court. In that case, TCXM challenged the lawfulness of an earlier agreement between Australia and Nauru (being the Interim Third Country Reception Arrangement with the Republic of Nauru) and the lawfulness of s 76AAA of the Migration Act. As I have noted, the High Court held that the Interim Third Country Reception Arrangement was lawful, that s 76AAA and s 198(2B) of the Migration Act required the removal of TXCM from Australia to Nauru, and that in so operating these provisions would not contravene Ch III of the Constitution. On the facts of that case, the plurality found (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ):

56    The appellant advances no argument that his selection as one of the initial cohort of up to three non-citizens to be proposed to be removed to Nauru pursuant to the Interim Arrangement was motivated by a constitutionally impermissible purpose of denunciation of or retribution for his prior criminal conduct. Moreover, the appellant accepts on the authority of Falzon v Minister for Immigration and Border Protection that neither cancellation of a visa so as to result in its former holder becoming an unlawful non-citizen nor removal of that non-citizen from Australia under s 198 of the Migration Act consequent upon cancellation of the visa is inherently penal or punitive in character.

57    The crucial factor which the appellant argues to warrant the characterisation of ss 198AHB, 76AAA and 198(2B) of the Migration Act as penal or punitive in character in their particular application to him is that the exercise of powers and performance of duties under them would result in him facing an imminent risk of premature death in Nauru. That factor, he argues, is to be assessed in the context of other "salient features" identified by him without detailed elaboration as: Australia's protection obligations; Australia's "ongoing involvement" under the Interim Arrangement; the absence of procedural fairness and executive discretion; his lack of connection with Nauru; his effective territorial "confinement" to Nauru; the fact that his visa was cancelled on character grounds following the commission of a criminal offence; and that his proposed removal to Nauru can be described as "banishment" having a "mark of infamy annexed".

58    Neither alone nor in the context of those other "salient features" is the consequence that the appellant would face an imminent risk of premature death in Nauru attributable to the inadequacy of medical services in Nauru sufficient to characterise the application of ss 198AHB, 76AAA and 198(2B) of the Migration Act to him as penal or punitive. The increased risk of premature death from a fatal asthma attack which the appellant would face in Nauru bears no analogy to the unjustified deprivations of liberty held by majority to be properly characterised as punitive in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs and EGH19 v The Commonwealth. Even if exposure to that increased risk might be characterised as a detriment, mere imposition of "involuntary hardship or detriment", as Gleeson CJ emphasised in Re Woolley; Ex parte Applicants M276/2003, "is not an exclusively judicial function".

(Footnotes omitted.)

22    I can see no basis upon which a relevant distinction may be drawn between the facts of the present case and the subject matter of TXCM. There is no apparent basis upon which the Memorandum of Understanding may be distinguished from the Interim Third Country Reception Arrangement that was upheld by the High Court in TXCM. Accordingly, I am bound to reach the conclusion that the challenge to the validity of s 76AAA will fail, as will the related challenge to the Memorandum of Understanding.

23    At my request, the Minister properly made submissions as to whether there are other grounds upon which it may be said it could be advanced to challenge the validity of s 76AAA. My attention was drawn to passages in the decision of Gordon J at [113]–[117] in TCXM, and in particular to the third point raised by Gordon J, which raised a question as to whether a party to be deported would be subject to detention in a third country. My attention was drawn to the terms of the applicant’s visa to Nauru, which suggest that the applicant will be afforded the rights available to citizens (including freedom of movement) under the Constitution of Nauru.

24    Furthermore, whilst I accept that the consequences of his removal to Nauru will be profound, in light of my conclusion as to the weakness of the prima facie case there is little to be said in favour of the applicant when considering the balance of convenience. In this regard, I refer to BKN25 v Commonwealth of Australia [2026] FCA 350 at [13]–[16] (Kennett J). Although the applicant submits that he will be separated from his family and will not be free to live in the Australia community, or in immigration detention in Australia, these matters are not legally significant in considering the exercise by the Minister of the power to remove in the circumstances of the present case.

25    On the other hand, officers of the Commonwealth have an obligation under s 196(6) of the Migration Act to remove as soon as reasonably practicable an unlawful non-citizen in the circumstances set out in that sub-section. An interlocutory injunction would prevent that course.

26    Even recognising, as I do, that by refusing to grant interlocutory relief I am also, in effect, refusing final relief because the applicant only seeks declarations and injunctions restraining removal, nonetheless, it is not in accordance with principle to grant the interlocutory injunction sought.

27    Accordingly, I dismiss the interlocutory application with costs.

Associate:

Dated:    23 July 2026