El Masri v Minister for Immigration & Anor [2018] FCCA 1232 (31 May 2018)

Last Updated: 18 September 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL MASRI v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1232

Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – where Applicant applied for partner visa out of time – whether compelling reasons existed under cl.820.211(2)(d)(ii) in sch.3 for waiving criterion 3001 in sch.3 of the Migration Regulations 1994 (Cth) – whether Tribunal failed to make an obvious inquiry about a critical fact – no jurisdictional error established.

Legislation: Migration Act 1958 (Cth), ss.65, 476 Migration regulations 1994 (Cth), cl.820.211, sch.3

Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 Choi v Minsiter for Immigration and Border Protection [2018] FCA 291 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2015] FCA 211 MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 0 Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121

Applicant:

ABDEL RAHIM EL MASRI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMNISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1697 of 2016

Judgment of:

Judge Baird

Hearing date:

24 April 2018

Delivered at:

Sydney

Delivered on:

31 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Firmstone & Associates

Counsel for the Respondent:

Mr M Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

(1) The Application be dismissed.
(2) The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 1697 of 2016

ABDEL RAHIM EL MASRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 8 June 2016, affirming the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection, dated 11 March 2016. The Delegate refused to grant the Applicant a subclass 820 Partner (Temporary) (UK) Visa under s.65 of the Act.
2. The Applicant is a citizen of Lebanon. He applied for the Visa on 30 October 2015. The last substantive visa the Applicant held expired on 16 July 2012, over three years earlier. In order to be granted a subclass 820 visa, the Applicant was required to demonstrate that he met, as at the date of application, cl.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth). That clause requires an applicant to satisfy each of Schedule 3 criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons to not apply those criteria. In order to meet Schedule 3 criterion 3001, the Applicant was required to apply for his visa within 28 days of the date of expiration of his last substantive visa. It was common ground that the Applicant did not satisfy Schedule 3 criterion 3001.
3. In this Court, the Applicant says that the Tribunal made a jurisdictional error by failing to determine whether there was a compelling reason not to apply criterion 3001, on the ground that the Applicant faced harm due to general violence in Akkar Province, Lebanon. The Applicant’s case is that the Tribunal misunderstood or misapplied its power to waive the requirements in Schedule 3 of the Regulations.

Relevant legislative provisions

4. Part 8.20 of the Regulations contains provisions concerning partner visas. The primary criteria for the particular partner visa sought by the Applicant are set out in cl.820.2. Relevantly to the application before this Court are the criteria set out in sub-cl.820.211, which provides:

820.21—Criteria to be satisfied at time of application

820.211

(1) The applicant:

(a) is not the holder of a Subclass 771 (Transit) visa; and

(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

(2) An applicant meets the requirements of this subclause if:

(a) the applicant is the spouse or de facto partner of a person who:

(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

(c) the applicant is sponsored:

(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or

(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

(A) has turned 18; and

(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(d) in the case of an applicant who is not the holder of a substantive visa—either:

(i) the applicant:

(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

(B) satisfies Schedule 3 criterion 3002; or

(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

5. As the last day on which the Applicant held a substantive visa was 16 July 2012 (see Schedule 3 criterion 3001(2)(c)(iii)), it was dispositive of the application for the Visa that the Minister, or the Tribunal exercising the Minister’s discretion, was satisfied that there were “compelling reasons” for not applying criterion 3001.
6. The Minister has a discretionary power to be satisfied that the specified criteria does not apply. It is a power, where the Minister is satisfied that there are compelling reasons for doing so, to effect the result that the visa applicant is not required to meet those criteria which would otherwise be required to be satisfied at the time of the application: see Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121, per Robertson J at [19].
7. The circumstances that may constitute “compelling reasons” for waiver of the Schedule 3 criteria are not temporally limited: the Minister at the time of making his or her decision is not prevented from taking into account in assessing “compelling reasons” the circumstances which prevail at the time of his or her decision: Waensila per Robertson J at [18], Dowsett J at [2], and Griffiths J at [54]. Before me, neither party contended otherwise.
8. The effect of the Minister being so satisfied and waiving compliance with the criteria would be that the Applicant would not have to leave Australia in order to reapply for a partner visa.

Summary of the Applicant’s circumstances

9. The following is a summary of the Applicant’s history leading to his application for the Visa:
   • (a) the Applicant is a Lebanese national. He initially arrived in Australia on 2 January 2010 as the holder of a student visa, and was granted a further student visa on 17 May 2011;
   • (b) on 16 July 2012, his last substantive visa expired;
     • (c) he subsequently applied for a protection visa which was refused by a delegate of the Minister;
     • (d) on 10 June 2014, the Refugee Review Tribunal (RRT) affirmed the decision of that delegate to refuse to grant the protection visa (2014 RRT Decision). The RRT:

(i) did not accept the Applicant’s claims to have a political/religious profile which could lead to him suffering adverse attention in Lebanon, or at the hands of any groups or organisations or people in Lebanon;

(ii) considered that profile, and the evidence before it in relation to general violence (as referred to in the decision, in sum, that there was no evidence to suggest ordinary Sunnis or other Lebanese are at risk from sectarian violence in Akkar Province), and the Applicant’s own evidence that all of his family remained in Akkar Province, which the RRT considered reflected the lack of concern of being harmed by the general situation;

(iii) in deciding the protection visa application adversely to the Applicant, noted that whilst there had been an increase in violence since the Syrian civil war began, which had affected the circumstances in Lebanon, considered that the prospect of the Applicant being affected by this violence was remote and speculative;

(e) on 8 July 2014, the Applicant requested Ministerial intervention. On 26 August 2014, the Minister deemed this request inappropriate to consider;

(f) on 18 September 2014, he lodged a further protection visa application which was deemed invalid on 20 January 2015;

(i) on 13 October 2014, the Applicant met his future wife, an Australian citizen, and his sponsor on the present visa application. They married in an Islamic ceremony on 14 November 2014, and their marriage was registered on 3 February 2015.

The Delegate’s decision

10. As stated above, on 30 October 2015, the Applicant lodged the partner Visa application under review. The Delegate refused to grant the Visa because the Delegate was not satisfied that the Applicant satisfied the Schedule 3 criteria. Referring to the Applicant’s immigration history as indicated by departmental records, the Delegate recited the fact of the Applicant’s earlier application for a protection visa, and that the RRT had affirmed the delegate’s refusal to grant that visa, the delegate not accepting the Applicant’s claims as credible or that he would be of any real risk should he return to Lebanon.

Proceedings before the Tribunal

11. On 22 March 2016 the Applicant lodged an application for the Tribunal to review the Delegate’s decision. The Applicant was invited to appear before the Tribunal and did so at a hearing on 2 June 2016. Present at that hearing was the Applicant, his wife and sponsor, his migration agent and an interpreter. Prior to the Tribunal hearing, the Applicant, via his migration agent, provided information about the parties’ (his and his wife’s) relationship and reasons not to apply the Schedule 3 criteria. That information and those reasons were as follows:
    • (a) as a result of his political activity, the Applicant fears returning to Lebanon;
      • (b) the parties had undertaken IVF treatment, and as a result of it being unsuccessful, the sponsor (his wife) suffered depression and anxiety; and
      • (c) medical documents relating to each of his sponsor and himself.
12. The Tribunal records that it asked the Applicant about his circumstances and discussed with him in detail the Schedule 3 criteria, and whether there are compelling reasons for not applying the criteria. The Applicant referred to the following matters in his evidence, which I have derived from the Tribunal decision at [18]-[24] and the submissions of the Minister filed on 17 April 2018:
    • (a) in August 2011 the Applicant returned to Lebanon (from Australia) to see his mother who was unwell. During his 40-day visit there he attended a political rally. Some-time after, when driving his car to visit a friend, his car was shot at. The Applicant’s evidence was that “[h]e did not know if he was being targeted for being politically active and reported the incident to the police”;
      • (b) the Applicant’s wife had unsuccessfully undertaken IVF treatment and now suffers from depression as a result of the failed IVF treatment. She continues to undertake IVF treatment. The last round of treatment had taken place 2 days before the hearing. She requires the Applicant’s support through this process;
    • (c) the Applicant’s wife is not physically able to work. The Applicant supports her financially out of savings he has accrued. The Applicant too is unable to work, and underwent surgery in December 2015 for a back injury he had sustained;
    • (d) the Applicant needs to be close to his wife so that he can provide her with emotional support;
    • (e) whilst his wife has visited Lebanon, she would be unable to live in Lebanon;
    • (f) The Applicant and his wife have friends in Sydney with whom they are close;
    • (g) the Applicant and his wife’s relationship has been a lengthy one, having been married for 18 months as at the date of the Tribunal’s decision. Should the Applicant be required to leave Australia, the parties could face an 18-month period of separation.
13. The Tribunal’s decision records that the Applicant’s father is deceased, but his mother, 6 brothers and 11 sisters reside in Lebanon, as do nieces and nephews whom he does not know personally. The Applicant remains in contact with his family. His wife visited his family in Lebanon and they get on well. However, as I have noted above, the Applicant’s evidence was that she would be unable to live in Lebanon.
14. In relation to the Applicant’s claim that he could not return to Lebanon because of his political activities, the Tribunal stated as follows, at [32]:
    • The applicant claims that he cannot return to Lebanon because of his political activities. The Tribunal has not been provided with any supportive evidence of any threat or allegation against the applicant should he return to Lebanon. Rather Ms Hill in her statutory declaration dated 22 September 2015 stated that the parties plan to travel to Lebanon to visit Mr El Masri's family. In addition, Mr El Masri in his statutory declaration dated 22 September 2015, stated that the parties intend to travel overseas to introduce Ms Hill to Mr El Masri's family in Lebanon. In addition Mr El Masri told the Tribunal that on his return to Lebanon he will live with his family. As a result the Tribunal is not satisfied that this is a compelling reason not to apply the Schedule 3 criteria.
15. The Tribunal referred to Waensila for the principle that the matters that give rise to compelling reasons to waive the Schedule 3 criteria can arise at any time. In accordance with Waensila, the Tribunal considered the then current situation of the Applicant and his wife (including, the status of their IVF treatment, their ages, their respective inability to work and their health circumstances). As set out at [14] above, in assessing the Applicant’s claim that he cannot return to Lebanon because of his political activities, the Tribunal at [32] considered the Applicant and his wife’s current intention to visit Mr El Masri’s family in Lebanon, and the Applicant’s current intention to live with his family on his return to Lebanon.
16. The only express reference in the Tribunal decision to the 2014 RRT Decision is its passing reference in the decision at [8], in the background summary of the Applicant’s history of applications for visas.
17. The Tribunal concluded that it was not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the Tribunal found that the Applicant did not meet subcl.820.211(2)(d)(ii). The Tribunal considered the alternative subclauses and found that there was no evidence before it that the Applicant satisfied any of the alternative subclauses. The Tribunal affirmed the decision not to grant the Applicant the Visa.

Ground of review

18. The Applicant relied on a single ground, ground 1, in his amended application dated 11 April 2018 as follows (without alteration):
    • (1) The Tribunal made a jurisdictional error by failing to determine whether the Applicant there was a compelling reason not to apply criterion 3001 on the ground that the Applicant faced harm due to general violence in Akkar Province.
      • (a) a prospect of harm, although falling short of that necessary for a protection visa, was capable of constituting a compelling reason not to apply criterion 3001;
      • (b) there was an obvious and critical fact, the existence of which could be easily ascertained, being the extent to which the Refugee Review Tribunal (RRT) in its decision dated 10 June 2014 [the 2014 RRT Decision] recognised harm which would be faced by the Applicant upon his return to Lebanon;
      • (c) furthermore, there was an obvious and critical fact, the existence of which could be easily ascertained, being the extent to which the country information relied upon by the RRT at paragraph 83 of its decision had been updated or changed.

The proceedings in this Court

19. I have received in evidence a copy of the 2014 RRT Decision. The Applicant’s counsel submitted, and I accept, that it is appropriate to have before the Court some material to show what inquiry the Applicant says the Tribunal ought to have made. The issue of the Applicant’s claimed political activities was discussed in the 2014 RRT Decision. The RRT had significant credibility concerns in relation to the Applicant’s assertions, background and claims provided. The RRT did not accept that the Applicant had a political profile. The RRT considered country information and DFAT’s conclusion in December 2013 that there was no evidence to suggest that ordinary Sunnis or other Lebanese are at risk from sectarian violence in Akkar Province (at [83]).
20. The parties were in agreement, and I accept, that the purpose of the Minister’s discretion is to give the Minister greater flexibility if, and when, compelling circumstances arise, and that the focus is relief from putting particular applicants through the hardship of having to leave Australia to make a fresh application for visa from overseas.
21. Whilst the explanatory statement accompanying the amending regulation exemplified the waiver as being exercisable only where there are reasons of a strongly compassionate nature such as the presence of Australian citizen children from the relationship and a relationship existing for two years or longer, neither party contended that compelling circumstances were limited to the instances exemplified.
22. The Applicant’s counsel submitted that the possible content of the expression “compelling reasons” in the present case could include harm in the Applicant’s home country of Lebanon, albeit harm falling short of that which supplies refugee status (or enlivens the complementary protection provisions of s.36(2)(aa) of the Act). He submitted that this flows by analogy from Goundar v Minister for Immigration and Border Protection [2016] FCA 1203.
23. In Goundar, Robertson J considered a case involving a decision by the Minister not to revoke a mandatory visa cancellation decision made under s.501(3A) of the Act where a delegate was satisfied that the applicant did not pass the character test on the basis of a substantial criminal record (a conviction for manslaughter).
24. Under s.501CA(4)(b)(ii) of the Act, the Minister was required to revoke the cancellation if satisfied that there is another reason (other than passing the character test), why the original decision should be revoked. In Goundar the applicant, a Fijian citizen, claimed a risk of retribution against the applicant from the victim’s family, as well from his former wife’s family, if he returned to Fiji. The Minister did not consider the applicant’s representations as to the claimed risk of retribution and risk to his safety, because the Minister assumed (erroneously) that the claim could be dealt with later in any application for a protection visa. His Honour held that a claim to such harm, while not being of the kind which would attract a protection visa, could be “another reason” for the purposes of s.501CA(4)(b)(ii) of the Act.
25. His Honour stated, at [54]:
    • The harm claimed by the applicant was not on the face of it Convention-related harm because it had a private quality, and the claimed harm was not coterminous with the significant harm referred to in s 36(2)(aa) as defined in s 36(2A) of the Migration Act. The Minister proceeded on the basis that he did not need to consider the representation of risk of harm because of the line of authority summarised in Le at [41]-[65]. That error had a material effect on the Minister’s decision in that it was on that basis that he did not consider the claimed risk of harm and risk to the applicant’s safety. The satisfaction referred to in s 501CA(4) is a state of mind which must be formed on a correct understanding of the law: see Wei at [33] and the authorities referred to in footnote 30 to the reasons of Gageler and Keane JJ. That is an implied condition of the valid exercise of that power. Here there was an incorrect understanding of the law. The case is one of jurisdictional error.
26. The Applicant’s counsel submitted that his client had to establish that general violence in Lebanon is capable of constituting harm so as to be compelling reasons for not applying the Schedule 3 criterion 3001. The Applicant says that the Tribunal failed to determine whether there was a compelling reason not to apply criterion 3001 on the ground that the Applicant faced harm due to general violence in Akkar province.
27. The Applicant’s counsel put his client’s case in this Court as being a failure to make an obvious inquiry as to a critical fact: See Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123. The Applicant’s complaint was not a case of a failure by the Tribunal to take into account a relevant consideration, but rather a judicially reviewable failure to inquire within the terms of SZIAI.
28. In SZIAI the High Court said, at [17], [20] and [25]:
    • [17] It was not contended at any stage of this litigation that the Tribunal was obliged to exercise the power conferred by s 424 of the Migration Act to "get any information that it considers relevant" and no other specific source of such an obligation was identified.
    • [20] The failure of an administrative decision-make to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have exercised it.
    • [25] The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
29. The Applicant’s counsel submitted that the Tribunal in the present case was required, under SZIAI, to obtain the 2014 RRT Decision and, additionally, was required to obtain any update to the information relied upon by the RRT, such as a subsequent DFAT report, or comparable country information. The Applicant’s counsel submitted that, despite easily being able to do so, the Tribunal did not obtain and have regard to the 2014 RRT Decision.
30. The Applicant’s counsel submitted that the Tribunal “was mindful” that the Applicant had applied for, but not received, a protection visa, namely, the visa the subject of the 2014 RRT Decision: Tribunal decision at [8]. Counsel submitted that the Tribunal at [32] did not appear to gainsay the notion that harm in Lebanon could constitute a compelling reason, in accordance with Goundar.

Consideration

31. “Compelling reasons” are reasons that are sufficiently convincing to move the decision maker to exercise its discretion to waive the requisite criteria, that is, there exist forceful circumstances: see Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [32]- [37], [39] (Crennan J); Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 at [26]. The circumstances must be sufficiently powerful to lead a decision maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77; (2005) 141 FCR 285 at [24]; MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 at [10] (Bromberg J).
32. For present purposes, the general proposition may be accepted that compelling reasons for the purposes of sub-cl.820.211(2)(d)(ii) need not be limited to circumstances that would supply refugee status or enliven the complementary protection provisions of s.36(2)(aa) of the Act; so much is clear from the explanatory statement accompanying the amending regulation (see above at [21]). It does not follow, however, that the circumstances about which the Tribunal was required to give proper consideration as to whether they constituted compelling reasons in the present case, included whether the Applicant faced a prospect of harm due to general violence in Akkar Province as claimed in ground 1.
33. As identified by the High Court in SZIAI, there needs to be a critical fact, about which an obvious inquiry could be made, the existence of which fact is easily ascertained, before a failure of the Tribunal to make inquiry could in some circumstances supply a sufficient link to the outcome to constitute a failure to review.
34. There is no general obligation on the Tribunal to make inquiries. An obligation to make inquiry may arise in “rare or exceptional circumstances”. The mere fact that it may have been reasonable to make an inquiry does not mean that the lack of such an inquiry amounts to a jurisdictional error: see Kaur at [33], and cases there cited.
35. The plurality in SZIAI at [25] placed emphasis on the Tribunal’s duty to review. A failure of the Tribunal to make inquiries of its own could constitute jurisdictional error if it meant that the Tribunal failed to complete its task of review, for example, if the review function could not be carried out in the absence of particular evidence. For the reasons I set out below, I have found that that is not the present case.
36. In exercising that core function of review of the Delegate’s decision, the Tribunal was tasked with identifying the matters that the Applicant submitted justified waiver of the Schedule 3 criteria and assessing those matters.
37. It was incumbent upon the Applicant to put forward whatever material and arguments he thought necessary or appropriate to persuade the Tribunal to find in his favour: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 596; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [18] per Gummow and Hayne JJ; see also Choi v Minsiter for Immigration and Border Protection [2018] FCA 291, e.g. at [15], [35], [37] per Allsop CJ.
38. The matters submitted by the Applicant as compelling reasons concerned his and his wife’s personal situation: he could not return to Lebanon because of his political activities, his personal relationship with his wife, the support he gives her and her need for that continued support: see above at [11]-[12].
39. At [19] of its decision the Tribunal set out the Applicant’s evidence to the Tribunal of his political activity – his attendance at a political rally on a return visit to Lebanon in August 2011, that some-time after, his car was shot at, and he did not know if he was being targeted for being politically active and reported the incident to the police (see at [12] above).
40. At [32] of its decision, which I have set out above at [14], the Tribunal addressed the Applicant’s claim that he cannot return to Lebanon because of his political activities, noting that the Applicant did not provide any supportive evidence. The Tribunal assessed the Applicant’s claim against the Applicant and his wife’s evidence to the Tribunal of their present intentions to visit his family, and his evidence that on his return to Lebanon he will live with his family. The Applicant’s evidence did not support his claim, to the contrary, it contradicted it. Contrary to the Applicant’s counsel’s submissions, it does not follow that the Tribunal did not gainsay the prospect of harm from general violence; it simply did not have before it any claim to a prospect of harm from general violence to consider.
41. The analogy with Goundar sought to be drawn by the Applicant’s counsel is inapt. The applicant in Goundar made express claims to harm. It was those express claims that the Minister identified but did not deal with, being under an incorrect understanding of the law (see Goundar at [19], [20]).
42. In the present case, the Tribunal considered and addressed the information and reasons put forward by the Applicant and his and his wife’s current circumstances. It is apparent from the Tribunal decision, and the Applicant’s counsel did not contend otherwise, that the Applicant made no mention of general violence in Akkar Province, nor any prospect of harm due to general violence there.
43. The Applicant’s ground of review and his submission in this Court ignore the fact that the Applicant did not make any claim that criterion 3001 should be waived on the ground that he could face a prospect of harm due to general violence in Akkar Province should he have to leave Australia and apply for a partner visa from overseas. The Applicant did not claim that a risk of generalised violence in his home area in Lebanon constituted a compelling circumstance that would justify waiver of Schedule 3 criteria, either before the Tribunal, or earlier before the Delegate. He made no mention of general violence in Akkar Province. He did not refer the 2014 RRT Decision to the Tribunal, nor did he seek to draw the Tribunal’s attention to any discussion or finding contained in the 2014 RRT Decision.
44. In the absence of any reference by the Applicant to the 2014 RRT Decision, or any claim of the prospect of harm due to general violence in Akkar Province, the Applicant’s claim in this Court that the RRT’s discussion of whether the Applicant faced a prospect of harm from general violence in his home area in Lebanon was a critical fact cannot be made out. It cannot have been obvious to the Tribunal to make any inquiry about a possibility of which the Applicant chose to be silent.
45. It cannot be obvious for the Tribunal to obtain the 2014 RRT Decision when the Applicant himself did not mention it, nor any prospect of general violence in his home area, or any prospect of harm due to general violence.
46. Further, it cannot be obvious for the Tribunal to obtain updated country information in order to be informed as to the prospect of harm due to general violence in Akkar Province when the Applicant himself made no mention of any such prospect.
47. It follows that the prospect of harm due to general violence in Akkar Province was not a critical fact in the present case. Whether the 2014 RRT Decision said anything about such a prospect was not a fact about which the Tribunal was under a duty to inquire, nor was whether there was any updated country information that may relate to that prospect for the Tribunal to obtain.
48. Further, in circumstances where the evidence before the Tribunal was that the Applicant and his wife had current plans to visit his family in Akkar Province and the Applicant planned to live with his family on his return, that the Tribunal was aware that the Applicant had previously made an unsuccessful application for a protection visa, did not make it obvious to obtain the 2014 RRT Decision to glean from it whether or not the RRT had then recognised that there a possibility of harm from general violence in the Applicant’s home province.
49. This is not a rare or exceptional circumstance in which a duty to inquire arises. It follows that the ground of review is not made out. The application must be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 31 May 2018