Perveen v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 962
•23 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perveen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 962
File number(s): SYG 2420 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 23 June 2025 Catchwords: MIGRATION - Elderly female applicant whose only child now lives in Australia, with allegedly no next of kin in country of origin - whether Tribunal erred in considering existence of exceptional circumstances in assessing whether met cl 600.215 of Schedule 2 to the Migration Regulations – where no error even if Court may have concluded differently on facts – Ministerial intervention Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 175
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) cl 600.215 of Schedule 2
Cases cited: An v Minister for Immigration and Citizenship (2007) 160 FCR 480
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Division: General Federal Law Number of paragraphs: 51 Date of hearing: 12 March 2024 Place: Sydney The Applicant: In person Solicitor for the Respondents: Ms I Leonard, Australian Government Solicitor ORDERS
SYG 2420 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KURSHEED PERVEEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
23 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The application filed on 16 September 2019 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 August 2019 which affirmed a decision of a delegate of the first respondent (delegate) dated 14 March 2018 refusing to grant the applicant a Visitor (Class FA) (Tourist) (subclass 600) visa (visa).
BACKGROUND
The following background is primarily derived from the written submissions of the first respondent and the material available in the Court Book. Unless otherwise indicated, it does not appear to be in dispute between the parties.
The applicant is a citizen of Pakistan. She is currently 89 years old.
On 9 March 2017, the applicant arrived in Australia as the holder of a visitor visa, which ceased on 30 August 2017. She subsequently applied for, and was granted, a further visitor visa which ceased on 9 March 2018 (Court Book (CB) at 18).
On 6 March 2018, the applicant applied for the visa (CB 1 to 11).
On 14 March 2018, a delegate refused to grant the visa (CB 17 to 19).
On 25 March 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 20 to 21).
On 8 August 2019, the applicant provided a statement to the Tribunal outlining her personal circumstances (CB 28 to 29).
On 15 August 2019, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Urdu language (CB 30 to 33).
On 15 August 2019, the Tribunal affirmed the delegate’s decision to not grant the applicant the visa (CB 40 to 43).
Tribunal decision
The Tribunal identified that the issue before it was whether the applicant met cl 600.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Clause 600.215 relevantly provided that where the grant of a visitor visa would result in the applicant being authorised to stay in Australia for a total period of more than 12 consecutive months, exceptional circumstances must exist for the grant of the visa (CB 41 to 42 at [10] and [13]).
The Tribunal considered the applicant’s written personal statement and the oral evidence given at hearing. The Tribunal accepted that the applicant’s only child lives in Australia and that the applicant wants to remain in Australia with her daughter (Ms Shakira) (CB 42 at [15]).
The Tribunal noted the applicant’s oral evidence that she enjoyed good health save for weakness associated with old age. The Tribunal observed that the applicant had come to the Tribunal hearing on public transport, albeit assisted by a friend (CB 43 at [21]).
The Tribunal had regard to examples of exceptional circumstances in the Department’s Procedure Advice Manual guidelines (PAM3). The Tribunal acknowledged the applicant’s wish to spend time with her daughter and grandchild, but was mindful that the applicant’s visa had already been extended for this purpose. The Tribunal found that there to have been no real change in the applicant’s situation since that last extension had been granted.
The Tribunal was ultimately not satisfied that there were exceptional circumstances for the grant of the visa as required by cl 600.215 of Schedule 2 to the Regulations, in circumstances where the grant of the visa would result in the applicant being allowed to stay in Australia for a total period of more than 12 consecutive months (CB 43 at [23]).
APPLICATION TO THIS COURT
As noted above, these proceedings were commenced on 16 September 2019 by an application to show cause pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The applicant has been unrepresented since the inception of these proceedings. On 10 October 2019, orders were made by consent by a Registrar of the Court, which listed the proceeding for a callover before a different Judge of the Court (first primary Judge) and provided an opportunity to the applicant to amend her application. No such amendment was forthcoming. On 5 July 2023, the proceedings were called over by a Registrar of the Court. The applicant appeared in person by telephone and was assisted by an interpreter in the Urdu language. The first respondent was represented by his solicitor. On that occasion, the Registrar made orders (July orders) adjourning the proceedings for final hearing on a date to be advised. There were two notations to the July orders, namely that:
(a)the applicant had lost the Court Book and that the first respondent’s solicitors would send a further physical and electronic copy of it once the applicant filed an updated Notice of Address for Service form (first notation); and
(b)the applicant now has hearing difficulties and therefore an in-person hearing was preferable (second notation).
On 23 August 2023, the proceedings were docketed to me and I made orders on that occasion which (inter alia) listed the matter for final hearing on 16 November 2023. The applicant was given a further opportunity to amend. The applicant and the first respondent were ordered to file written outline of submissions 14 and 7 days before the hearing (respectively).
On 8 November 2023, my Chambers received an email from the Ms Shakira requesting that the hearing proceed by videolink. The basis for that request was that it was now difficult for the applicant to travel to attend Court without assistance from Ms Shakira, who was was pregnant and expected to deliver her child “in a few days”. My Associate write to the solicitors for the first respondent to ascertain his position in respect of that request. On 9 November 2023, the solicitors for the first respondent indicated that the first respondent did not oppose the applicant’s request and was content for the applicant to appear by videolink or in person. At my direction, my Associate informed the parties that:
Given the notation by the Registrar in the orders of 5 July 2023 as to the need for an in-person hearing, her Honour is not minded to compromise the hearing opportunity for the applicant.
While there has been no medical evidence provided to verify the circumstances of the applicant’s daughter, her Honour is prepared to adjourn the matter for an in-person hearing at 2:15pm AEDT on 12 March 2024 in Court 13.1 Level 13, 80 William Street Woolloomooloo 2011.
On 9 November 2023, written submissions were filed for the first respondent as ordered. No further documents have been filed by, or for, the applicant.
On 12 March 2024, the parties appeared before me for hearing in person. The first respondent was represented by a solicitor. The applicant was assisted by an interpreter in the Urdu language and accompanied by Ms Shakira whom I allowed to sit at the Bar table to assist her mother. I explained to the applicant the process that the Court would follow, its role and the limitations on the Court’s jurisdiction in judicial review. The applicant indicated she understood. In light of the first notation to the July orders, I confirmed with the applicant that she had received a copy of the Court Book. The applicant acknowledged having received the Court Book but that she had not brought a physical copy of it with her to the hearing. A spare copy of the Court Book was made available to the applicant to utilise throughout the hearing. The Court Book was tendered by the first respondent and marked Exhibit “1R”.
The applicant indicated to the Court that she wanted Ms Shakira to speak on her behalf. In circumstances where the first respondent did not object, and having regard to s 175 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), I granted that leave. Ms Shakira told the Court that she had drafted her mother’s application. I gave Ms Shakira an opportunity to re-read the application for herself and directed the interpreter to interpret its contents to the applicant.
Ground of review
The application raises the following sole, particularised ground of review:
1.The Administrative Appeals Tribunal committed jurisdictional error by misinterpreting exceptional circumstances.
Particulars
1.Tribunal 'acted in a manifestly unreasonable and unconscionable way'. ‘The decision involved a failure to discharge the respondent’s statutory task and/or to have regard to the risk of harm to me in Pakistan as required by Australian law in my last few days on earth “complimentary protection”; e.g. I cannot travel or live without assistance of my daughter and there is no one else to be by my side to die in the current political, social and terrorism infested environment in Pakistan. ‘The decision involved a failure to give proper, genuine and realistic consideration to the factor “exceptional Circumstances” alternatively, the decision was unconscionable’
By his written submissions, the first respondent has distilled the ground of review as giving rise to the following four allegations, being that the Tribunal:
(a)misconstrued the meaning of ‘exceptional circumstances’;
(b)failed to discharge its statutory task;
(c)failed to consider the applicant’s claims or give proper, genuine and realistic consideration to them; and
(d)made a decision which is legally unreasonable.
Meaning of ‘exceptional circumstances’
From submissions made at hearing, it became clear that the first two issues identified by the first respondent (see [24](a) and [24](b) above), should be addressed together.
The applicant and Ms Shakira were invited to say what they wished in respect of the allegation that the Tribunal had misconstrued the meaning of ‘exceptional circumstances’ in cl 600.215.
Ms Shakira told the Court that she had invited the applicant to Australia for a visit but that after “a couple of months”,[1] Ms Shakira’s own circumstances changed when she became pregnant (at the age of 38) and required support from her mother. Ms Shakira said that she successfully applied to have the applicant’s visa extended for a period of 6 months but that, later, their circumstances changed because the applicant’s health was at risk. Ms Shakira said she formed the view at that time that the applicant was not in the “state to [be sent] back”[2] and so she applied for a further extension to the visa, which was refused. Ms Shakira confirmed that her true complaint was that the Tribunal did not accept that the applicant’s circumstances (which are described in the ground of review) constituted exceptional circumstances.
[1] Transcript dated 12 March 2024 (Transcript) at T28 to 29
[2] Transcript at T8.33
When asked what the applicant or Ms Shakira wished to say about the second issue identified in the ground of review, namely whether the Tribunal failed to discharge is statutory task, Ms Shakira said the applicant’s complaint is the same as in relation to the first issue. Namely, that the Tribunal found that there her circumstances were not exceptional.
The solicitor for the first respondent submitted that the Tribunal had in fact discharged its statutory task of reviewing the application on the merits by interpreting and applying the provision in cl 600.215.
Having heard the submissions for the applicant, I explained that while the Court understood the very real and difficult human consequences of the Tribunal’s decision, in order to constitute ‘exceptional circumstances’ the situation needed to be unusual, exceptional or extraordinary in some way. The Court explained that the Tribunal had regard to, and accepted, the fact the applicant was an elderly person, that Ms Shakira is her only child and is in Australia, and that the applicant wished to remain with Ms Shakira to help her with her child.
The following submissions were then made for the applicant in relation to why she considered her circumstances to be exceptional:[3]
MS SHAKIRA: I was very much scared to sending my mother back at that point because if I sent back my mother and there was nobody to look after her. And you know the female is not in a good position in Pakistan. You understand ‑ ‑ ‑
‑ ‑ ‑ I hope. So I was not in that position to send my mother because very scared. Maybe I send my mother and the next thing my mother will die. Nobody will be there to look after her. As in humanity, you understand, your Honour.
…
MS SHAKIRA: It is really challenging for me to send her, and there is no – that’s the reason this was done. Exceptional circumstances on my understanding. And being the human, I think we all understand that, I hope.
[3] Transcript T9.31 to 33
As the Tribunal observed at [16] of its reasons for decision, ‘exceptional circumstances’ is a term which is not defined in the Act.
The expression ‘exceptional circumstances’ has been found to be an ordinary, non-technical phrase which should be understood as meaning unusual or atypical. In An v Minister for Immigration and Citizenship (2007) 160 FCR 480at [82], the Full Federal Court (Lindgren, Emmett and Finkelstein JJ) observed[4] that:
The language of cl 856.213(c) directs attention to an “appointment” and calls for determination as to whether that appointment is “exceptional”. It appears to be common ground that the word “exceptional” should be understood as meaning unusual or atypical. A preliminary question is whether appointment refers to a job or position, rather than the act of appointing someone to a job or a position. Both are unexceptionable meanings of the word in ordinary English.
[4] In relation of a different clause of the Regulations, but which utilised the same expression
In the instant case, the first respondent emphasised that, in its reasons for decision, the Tribunal made reference to relevant authorities which inform the meaning of ‘exceptional circumstances’ and had regard to the examples of such circumstances in the PAM3 guidelines, albeit while observing that those guidelines were not binding upon it (CB 42 to 43 at [17] to [18]).
The first respondent says that the approach taken by the Tribunal does not give rise to jurisdictional error. Regrettably, I agree.
Failure to consider claims or give proper, genuine and realistic consideration
In respect of the third issue, Ms Shakira said that the applicant’s complaint again related to the first two issues. Her submissions centred particularly on the current state of the applicant’s health, to the effect that it would inevitably further deteriorate, and may do so quickly. Ms Shakira stated that the applicant’s kidneys are “only working 20 per cent”[5] and that she is the only person looking after, and supporting, her mother. Ms Shakira says that she hopes the Australian Government will help her “keep her mother with [her]”.[6] Ms Shakira submitted that Pakistan was not a safe place for women to live freely, and that without support there would be “no point”[7] in her being returned there. The applicant reiterated that these circumstances were, in her view, exceptional.
[5] Transcript T10.33
[6] Transcript T11.9
[7] Transcript T11.7
The Court expressed understanding that it was the desired outcome of both Ms Shakira and the applicant that the latter be able to remain in Australia. However, I reiterated the limitations on the Court’s role in the context of judicial review as being to consider whether the Tribunal’s decision is affected by jurisdictional error.
The first respondent submitted that the Tribunal considered the applicant’s circumstances and her evidence as set out in her application, written statement and in oral evidence, but that it expressly rejected the applicant’s claims that there were exceptional circumstances for the grant of the visitor visa, including her claim that there is no one to care for her in Pakistan. The first respondent submitted that there is no indication the Tribunal failed to take into account or give genuine consideration to any relevant information put forward by the applicant in support of her application, and that there is nothing to suggest that the applicant made any claims to fear harm in Pakistan, nor did such claim arise on the material.
The Tribunal is not required to consider a claim that was not expressly raised by the applicant or which did not arise on the material: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [59] per Black CJ, French and Selway.
I agree there is no error as alleged by the third issue contained in the review ground.
Unreasonableness
In relation to the fourth issue, when asked at hearing what they applicant wished to say about her allegation that the Tribunal acted in an unreasonable way and ultimately reached an unconscionable decision, Ms Shakira said that she was unfamiliar with the terms but reiterated that the applicant’s complaint was in relation to the Tribunal’s finding that her circumstances were not exceptional. I explained that in order to make out an allegation of legal unreasonableness, it would essentially be necessary to establish that the decision was so unreasonable, no other decision maker could have reached the same conclusion.
Ms Shakira made submissions in relation to her familial circumstances, including that her father had passed away, and that she was the only child who could look after her mother. Submissions were also made in relation to the effect of the Partition of India in 1947 on the applicant’s emotional state, and that if she were to be returned to Pakistan, the applicant would have no support and that her position there would ultimately be uncertain. These submissions were made in light of the fact the applicant is an elderly woman, and that the situation in Pakistan had “got worse for women” following the Partition. During her submissions, Ms Shakira was emotional and told the Court that she had “no words to explain this”.[8]
[8] Transcript at T12.18 and 31
The first respondent, by his written submissions, says that the allegation of legal unreasonableness is better characterised as whether or not the Tribunal’s decision was illogical or irrational, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. The first respondent submitted that the Tribunal considered the applicant’s evidence but was not satisfied that the circumstances of the applicant were ‘exceptional’. The first respondent said that the conclusion was open to the Tribunal and supported by intelligible reasoning, including that the applicant’s visa had previously been extended to allow her to spend time with her daughter and grandchild, and that there was no real change in the situation since the last extension (CB 43 at [23]).
A finding that a decision was illogical, or irrational should not be reached lightly: SZMDS (supra) at [40] per Gummow ACJ and Kiefel J (as her Honour then was).
The decision of the Tribunal is not one to which this Court may necessarily have come in all the circumstances of the applicant’s case, but that is not the point. Moreso because the effects of the applicant’s health and advancing age, which fed into an assessment of that reasonableness, were more significant by the time of the hearing before me than they had been before the Tribunal. For example, the applicant attended the Tribunal hearing by means of public transport with a friend, whereas she was unable to travel to Court without Ms Shakira and the correspondence referred to at [19] above included details regarding issues of continence which might warrant the proceedings not being held in person. As such, the circumstances presented to the Court were not those which necessarily confronted the Tribunal. Again, that is not the point. The prospect of an elderly, infirm, female being returned to her home country without next of kin or support networks may seem exceptional. The obverse to that is that there are policy considerations which attend such a scenario whereby the Australian public is not required to fund the medical and aged care needs of non-citizens. However, is also not for this Court to entertain such merits-based matters nor substitute its own factual findings in determining reasonableness in circumstances where it was open to the Tribunal, at the time of its decision, to conclude as it did.
I am satisfied that the decision of the Tribunal is neither unreasonable, illogical nor irrational.
CONCLUSION
As foreshadowed to the parties at the time judgment was reserved, the Court has taken a not inconsiderable period to deliver its decision, but the time has come to provide these reasons, invidious as that exercise may be.
The circumstances of this case are ones for which the Court expresses to the applicant and to Ms Shakira its compassion. The outcome must seem unfair to them because at a human level it may be. However, as was made clear in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ:
what is required by procedural fairness, is a fair hearing, not a fair outcome.
The decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. The application must therefore be dismissed. I will so order.
The applicant should of course explore remaining options to her both legally and in terms of migration pathways. It will come as no surprise, given the observations at [45] and [48] above that the Court suggests that consideration be given by the first respondent to Ministerial intervention.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 23 June 2025
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