El Masri v Minister for Immigration

This matter came before Judge Baird of the Federal Circuit Court of Australia concerning an application by Mr El Masri, a Lebanese national, for judicial review of a decision by the Minister for Immigration to refuse him a partner visa. Mr El Masri had arrived in Australia in 2010 and his last substantive visa expired in 2012. He had previously applied for a protection visa, which was refused by a delegate of the Minister and this decision was affirmed by the Refugee Review Tribunal (RRT) in 2014. The RRT had not accepted his claims of a political/religious profile that would place him at risk in Lebanon, nor that ordinary Lebanese citizens were at risk of sectarian violence in Akkar Province, where his family resided. Following a request for Ministerial intervention which was deemed inappropriate, and a further protection visa application that was deemed invalid, Mr El Masri lodged the partner visa application in October 2015 after marrying an Australian citizen.

The primary legal issue before the court was whether the delegate's decision to refuse the partner visa on the grounds that Mr El Masri did not satisfy Schedule 3 criteria was lawful. The delegate had relied on the previous RRT decision, which had found Mr El Masri's claims of risk in Lebanon to be not credible and that he was not at real risk if returned. Mr El Masri sought to argue that the Schedule 3 criteria should not be applied, providing reasons including his fear of returning to Lebanon due to political activity, and his wife's depression and anxiety stemming from unsuccessful IVF treatment.

The court was required to consider the delegate's assessment of the Schedule 3 criteria in light of the information provided by Mr El Masri regarding his relationship and the reasons for not applying the criteria. The delegate's decision was based on the previous findings of the RRT regarding the lack of credibility of Mr El Masri's claims of risk in Lebanon. The court would need to determine if the delegate had properly considered the evidence presented by Mr El Masri in relation to his current circumstances and his relationship with his Australian citizen wife, and whether the delegate's reliance on the prior RRT decision was appropriate in the context of the partner visa application and the Schedule 3 criteria.