LKQD and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision to refuse to grant the applicant a protection visa. The applicant, who was assessed as stateless and formerly a citizen of South Sudan, had entered Australia in 2004 on a refugee visa. The refusal of the protection visa followed an earlier decision to cancel the applicant's refugee visa. The applicant contended that the prospect of indefinite detention and the best interests of his Australian citizen son were relevant considerations in the determination of his protection visa application.

The primary legal issue before the Tribunal was whether the applicant met the criterion in s 36(1C)(b) of the *Migration Act 1958* (Cth), which requires the applicant not to be a danger to the Australian community. The applicant sought to rely on *NBMZ v Minister for Immigration and Border Protection* [2014] FCAFC 38, *Minister for Immigration and Ethnic Affairs v Teoh* (1995) 183 CLR 273, and *Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam* (2003) 214 CLR 1, arguing that the best interests of his son and the prospect of indefinite detention were relevant considerations.

The Tribunal determined that the *NBMZ* decision, which concerned the Minister's discretionary power under s 501(1) of the Act, had no application to the mandatory power to grant or refuse a protection visa under s 65 of the Act. The Tribunal also found that the *Teoh* and *Lam* decisions, which concerned the legitimate expectation that the best interests of children would be considered, were not relevant to the criterion in s 36(1C)(b). The Tribunal reasoned that this criterion makes no reference to the character test in s 501 or to any legitimate expectation, and therefore it had no jurisdiction to consider such matters or ancillary considerations set out in Direction No. 65. The Tribunal noted the absence of policy documents or guidelines regarding the determination of what constitutes "a danger" to the Australian community.