Background
LWU25, an Iraqi citizen who arrived in Australia around 1993, had his visa cancelled in 2018 following convictions for serious offences. After completing his prison sentence, he entered immigration detention. Although his protection-visa application was refused, authorities made a protection finding that prohibited his removal to Iraq.
LWU25 was later released into the community on a removal-pending bridging visa. In October 2025, Nauru granted him a 30-year Long-Term Stay visa, causing his Australian bridging visa to cease. He was detained for removal to Nauru and commenced Federal Court proceedings challenging the constitutional validity of s 76AAA of the Migration Act 1958 (Cth) and the Australia–Nauru resettlement memorandum as applied to him.
The proceeding was held in abeyance pending the High Court’s decision in TCXM v Minister for Immigration and Citizenship [2026] HCA 13. After TCXM upheld the relevant statutory removal scheme and an earlier arrangement with Nauru, LWU25—then self-represented—made an oral application for an urgent injunction preventing his removal until his proceeding was determined.
The Court’s Holding
Justice Burley dismissed the interlocutory application. The Court found no substantive basis on which LWU25 could resist removal because his constitutional case was materially indistinguishable from the challenge rejected by the High Court in TCXM. There was no apparent basis for distinguishing the memorandum governing LWU25’s proposed transfer from the Nauru arrangement upheld in that case. The Court therefore concluded that his challenges to s 76AAA and the memorandum would fail.
LWU25’s submissions focused on the unfairness and personal consequences of removal, including separation from his family, his lack of support in Nauru, and feared harm from conditions there. Although the Court accepted that removal would have profound consequences, those circumstances did not establish a sufficiently strong prima facie legal case or make the balance of convenience favor an injunction. His Nauruan visa also appeared to afford rights available to citizens, including freedom of movement, undermining any possible argument based on detention in the third country.
The Court further noted that Commonwealth officers were obliged by s 196(6) of the Migration Act to remove an unlawful non-citizen as soon as reasonably practicable where the statutory conditions were met. It refused relief even though doing so effectively defeated the practical object of LWU25’s proceeding, dismissed the interlocutory application with costs, and directed the respondents to propose orders for the proceeding’s future conduct.
Key Takeaways
- The High Court’s decision in TCXM foreclosed LWU25’s materially similar constitutional challenge to removal to Nauru.
- Severe personal hardship and family separation did not justify an injunction without a viable prima facie legal challenge.
- A court may refuse interlocutory relief despite recognizing that removal will effectively deprive the applicant of the practical benefit of final declaratory and injunctive relief.
Why It Matters
The decision illustrates the immediate effect of TCXM on pending challenges brought by NZYQ-affected non-citizens facing removal to Nauru. Unless an applicant can identify a legally material distinction—such as circumstances bearing on whether the person would be detained in the receiving country—the constitutional arguments rejected in TCXM are unlikely to support interim relief.
It also underscores that compelling humanitarian and family circumstances do not, without a tenable legal claim, overcome the statutory obligation to remove an unlawful non-citizen as soon as reasonably practicable.