Eight Shades Media Pty Ltd (Migration) - [2025] ARTA 1328

EIGHT SHADES MEDIA PTY LTD (MIGRATION) [2025] ARTA 1328 (7 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Eight Shades Media Pty Ltd
Visa Applicants:  Mrs Munazza Kashif
Miss Zunaira Kashif
Miss Roha Kashif
Mr Kashif Mehmood
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2514604

Tribunal:General Member P Maishman
Place:Perth
Date: 7 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
· PIC 4014 for the purposes of cl 482.217.
The applications of the second, third and fourth named applications are to be reconsidered in accordance with this order.

Statement made on 07 July 2025 at 4:32pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – risk factor – previous departure on bridging visa within three years – compassionate or compelling circumstances affecting interests of Australian citizen – oldest child an Australian citizen – well cared for by guardians but missing family, with significant emotional and mental upset – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 1958 (Cth), ss 9, 106(3)
Migration Regulations 1994 (Cth), Schedule 2, cl 482.217, Schedule 4, criterion 4014(1)

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 2025 to refuse to grant the visa applicant a GK – Temporary Skill Shortage (Class GK) Subclass 482 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 28 April 2024. The delegate refused to grant the visa on the basis that Public Interest Criterion 4014 (PIC 4014) was not met for the purposes of cl 482.217 of the Regulations.
Having received updated information not previously before the delegate, the Tribunal is able to find wholly in favour of the applicant and the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. The Tribunal is satisfied that each of the requirements contained in s 106(3)(a)-(c) of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) are satisfied and, consistently with the objective in s 9 of the ART Act, it is appropriate to determine this application in the absence of the parties.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Departments file.
The applicant gave the Tribunal a copy of the delegates decision record.
The first and fourth named applicants are the parents of the second and third named applicants, and a third daughter, Anaya Kashif (Ms Kashif) born in Australia in 2014 and an Australian citizen.
The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
Clause 482.217 of the Regulations provides:
(1)The applicant satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4007, 4010, 4013, 4014, 4020 and 4021.
(2)If the applicant had turned 18 at the time of application, the applicant satisfies public interest criteria 4019.
Clause 4014 of the PIC (public interest criterion) set out in Schedule 4 to the Regulations states:
(1)If the applicant is affected by the risk factor specified in subclause (4):
(a)  the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or
(b)  the Minister is satisfied that, in the particular case:
(i)       compelling circumstances that affect the interests of Australia; or
(ii)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the departure.
(4)      Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:
(a)     an unlawful non-citizen; or
(b)  the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.
(5)      Subclause (4) does not to apply to a person if:
(a)  the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or
(b)     a bridging visa held by the person at the time of departure was granted:
(i)       within 28 days after a substantive visa held by the person ceased to be in effect; or
(ii)      while the person held another bridging visa granted:
(A)     while the person held a substantive visa; or
(B)  within 28 days after a substantive visa held by the person ceased to be in effect.
Broadly speaking, PIC 4014 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. PIC 4014(4) provides a person is affected by a ‘risk factor’ for the purposes of PIC 4014 if they left Australia as an unlawful non-citizen or as the holder of a Bridging C, Bridging D or Bridging E visa, subject to the exceptions in PIC 4014(5), none of which on the applicant’s evidence apply in the present case.
Where a person is affected by a ‘risk factor’ as defined in PIC 4014(4), they are required to satisfy one of two alternate criteria set out in PIC 4014(1) to meet the requirements of PIC 4014.
PIC 4014(1)(a) requires, as a first alternative, that the visa application has been made more than 3 years after the date the person departed Australia. Alternatively, PIC 4014(1)(b) requires that the decision maker is satisfied that, in the particular case, there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, which justify granting the visa within three years after the person’s departure from Australia.
Documents obtained from the Department show the applicants left Australia in April 2024 as holders of bridging visas. The applicant concedes they are subject to the provisions of PIC 4014 because they left Australia in April 2024 as holders of bridging visas.
The Tribunal finds the applicant is affected by a risk factor as defined in PIC 4014(4)(b).
The issue in the present case is whether there are compelling circumstances affecting the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.
The Tribunal had regard to the undated written submission on the Department’s file received on or around 31 January 2025 in response to the Departments Request for information showing compassionate and compelling circumstances dated 23 January 2025.
The Tribunal received submissions from the applicant dated 27 April 2025 outlining the significant impact of the families separation from their 11 year old Australia citizen daughter who returned to Australia on 2 April 2025 and was staying with her uncle and auntie.
On 3 June 2025 the applicant’s Australian citizen daughter Ms Kashif and her guardians, Faisal Mehmood and Binish Iqbal, provided a statement dated 12 May 2025 to the Tribunal. In summary Ms Kashif submitted she is emotionally and mentally struggling because she is separated from her parents and sisters. She states she previously lived happily with her family and went to school, played and spent all her time with her sisters. While she is well cared for by her guardians she misses her family and no longer enjoys the recreational activities she used to love. Her sleep has been affected and she feels lonely and anxious.
Ms Kashif was born in Australia and is an Australian citizen. She has lived in Australia for her whole life (11 years). She has only attended schooling in Australia and has known no other home than Australia.
The Tribunal finds the separation of Ms Kashif from her parents would cause significant emotional and mental upset to her. The Tribunal accepts Ms Kashif has never resided in another country and would face a significant emotional upheaval if forced to leave her friends and schooling system with which she is acquainted.
The Tribunal is satisfied the circumstances affecting Ms Kashif, an Australian citizen, are compelling and compassionate circumstances such that the grant of a visa to the applicant within 3 years of her departure is justified.
Accordingly the Tribunal finds PIC 4014 is satisfied.
The other named parties made their applicants on the basis of being family members of the first named applicant. Their visa applications are to be reconsidered in accordance with this order.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·PIC 4014 for the purposes of cl 482.217 of Schedule 2 to the Regulations.
Representative for the Applicant: Mr Zahid Manzoor (MARN: 1803727)