In TCXM v Minister for Immigration and Citizenship [2026] HCA 13 (6 May 2026), the High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, and Beech-Jones JJ) unanimously dismissed an appeal against the proposed removal from Australia to Nauru of an NZYQ-affected non-citizen under the Australia–Republic of Nauru Interim Third Country Reception Arrangement (“Interim Arrangement”).
The joint reasons (Gageler CJ, Gleeson, Jagot, and Beech-Jones JJ) and the separate reasons of Gordon, Edelman, and Steward JJ address three principal issues: (1) the retrospective validation of the Interim Arrangement by the Home Affairs Legislation Amendment (2025 Measures No 1) Act 2025 (Cth) (“2025 Amendment Act”), (2) the scope of “reasonable practicability” for the removal of non-citizens under s 198 of the Migration Act 1958 (Cth), and (3) the prospects of a constitutional challenge to such removal as a non-punitive exercise of executive power.
The appellant, an Iranian citizen, arrived in Australia in 1990 and was granted a protection visa in 1995. In 1999, he was convicted of the murder of his wife (at [19]). His visa was cancelled on character grounds under s 501(3A) of the Migration Act in 2015. Following NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137, he was granted a Bridging R (Removal Pending) (Subclass 070) visa (“BVR”) in November 2023 (at [19]).
In February 2025, without notice to him, the Commonwealth proposed him as one of an initial cohort of three non-citizens to whom the Interim Arrangement would apply (at [20]). After the Government of Nauru granted him a long-term stay visa, his BVR ceased by force of s 76AAA of the Migration Act and he was returned to immigration detention pending removal (at [20]–[21]). The primary judge (Moshinsky J) found that the medical services available in Nauru were inadequate to manage the appellant’s condition of severe asthma on an ongoing basis (at [24]), but dismissed the application nonetheless.
On the first issue, the joint reasons held that the lawfulness of the Commonwealth’s entry into the Interim Arrangement was conclusively settled by item 10 of Sch 1 to the 2025 Amendment Act (at [3]). That provision operates to retrospectively deem valid, for all purposes, any thing done or purportedly done before its commencement that would otherwise be invalid solely on the ground that the rules of natural justice were not observed (at [32]). The appellant sought to resist this conclusion by distinguishing invalidity from unlawfulness: even if item 10 rendered the entry into the Interim Arrangement valid, he contended, its residual unlawfulness arising from the denial of procedural fairness would independently support an injunction restraining his removal (at [34]). The joint reasons rejected that argument. To declare that a purported exercise of power is valid is to confirm that it produces every legal consequence Parliament intended; accordingly, the validity conferred by item 10(4) encompassed all dimensions of the lawfulness of the entry into the arrangement, leaving no room for the procedural fairness breach to give rise to separate legal consequences (at [35]–[36]). The procedural fairness question was therefore rendered moot (at [36]).
Gordon J reached the same conclusion. Her Honour reasoned that a breach of an applicable requirement to afford procedural fairness would, in the absence of item 10, have rendered the entry into the Interim Arrangement invalid, and that item 10 directly addressed invalidity on that basis by attributing to the arrangement the full consequences of legal validity (at [71]–[77]).
On the second issue, the joint reasons affirmed the established position derived from NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506. The objective assessment of whether removal is “reasonably practicable” under s 198 is concerned with whether the non-citizen can be transported to and received into a destination country, and does not extend to what may happen to the non-citizen after arrival there (at [42]–[44]). The appellant argued, by reference to the common law right to life and Art 6(1) of the International Covenant on Civil and Political Rights (“ICCPR”), that the power and duty under s 198 should be construed to prohibit removal to a country where the non-citizen would face an imminent risk of premature death. The joint reasons rejected that argument on the basis that neither the common law nor Art 6 of the ICCPR recognises a right to life as curtailed by a differential in prevailing healthcare standards between countries (at [50]).
In any event, any non-refoulement obligation engaged by Art 6 was excluded from consideration by s 197C(1) and (2) (at [51]). The joint reasons further rejected the secondary argument that s 197C’s silence on post-removal harms other than non-refoulement implicitly preserved their relevance to reasonable practicability, holding that such a construction would undermine the operation of s 197C(3) (at [54]). Steward J agreed with the joint reasons on this issue (at [164]).
Gordon J concurred in the outcome on reasonable practicability but took a broader view of the concept’s scope. Her Honour considered it too absolute to hold that no consequence for a non-citizen after arrival in a destination country could ever be relevant, observing that this Court had not previously accepted such a categorical position (at [94]). To the extent that the observations in NATB extended beyond non-refoulement considerations, they should not be followed (at [99]). Nevertheless, that broader formulation did not assist the appellant: the relevant harm here was an increased risk of mortality attributable to a differential in healthcare standards, and a standard of that kind would be unworkable in scope, with its application in practice uncertain and potentially self-defeating (at [103]–[105]). Edelman J was more forthright in his criticism of NATB, characterising its approach to the principle of legality as inverted: the Full Court had reasoned that Parliament must be taken to have intended removal officers to treat near-certain death, torture, or persecution in the destination country as irrelevant unless Parliament had expressly stated otherwise, which was to treat the principle of legality not as a guide to the likely intention of a Parliament committed to fundamental rights, but as a guide to the intent of one indifferent to them (at [140]).
However, his Honour accepted that the 2014 enactment of s 197C(1) and (2) had deliberately and expressly reinstated the NATB approach, confining the reasonable practicability inquiry to the practical and legal obstacles to transporting a person to and receiving them in another country (at [148]–[150]).
On the constitutional question, all seven judges rejected the submission that the removal provisions, in their application to the appellant, amounted to executive punishment contrary to Ch III of the Constitution. The joint reasons reaffirmed that the removal of aliens is a long-established incident of executive power and is not inherently punitive in character, consistently with Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333. The appellant’s increased risk of premature death from the inadequacy of asthma treatment in Nauru bore no analogy to the unjustified deprivations of liberty held to be punitive in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 1 and EGH19 v The Commonwealth [2026] HCA 7. The imposition of involuntary hardship or detriment upon a person does not, of itself, constitute an exclusively judicial function (at [58]).
Gordon J and Edelman J each flagged in obiter that questions remained open as to whether removal imposed for purposes characteristic of punishment, such as retribution, deterrence, or incapacitation, might engage Ch III in a different case, and as to whether removal to a third country with which the person has no connection could, in certain circumstances, bear a punitive character (Gordon J at [113]–[117]; Edelman J at [160]). Steward J took a more categorical position, reasoning that because s 51(xix) of the Constitution expressly confers power to legislate with respect to aliens, including for their removal, any implication derived from the structure or text of the Constitution must yield to that express power, and constitutional implications cannot be made in the face of express constitutional language (at [166]).
The decision has three principal implications. First, it supports the proposition that broad retrospective validation provisions can extinguish challenges on procedural fairness grounds, including where the affected person was given no prior notice of the decision. Second, it establishes that the reasonable practicability inquiry under s 198 does not extend to a non-citizen’s welfare after removal, and that such protection as exists rests on the Minister’s non-compellable powers under ss 48B and 195A of the Migration Act rather than on enforceable rights per se. Third, the Ch III challenge was resolved narrowly on the facts.
The obiter observations of Gordon and Edelman JJ, leaving open whether punitive removal or effective banishment to a third country might attract constitutional scrutiny, stand in tension with Steward J’s view that the aliens power in s 51(xix) admits no such implication. Those competing positions are likely to be revisited as the third country removal regime develops.
