Lee v MIMAC

The appeal before the court involved the applicants, Lee, who were contesting the decision of the Minister’s delegate and the subsequent decisions of the Migration Review Tribunal and the Federal Circuit Court of Australia not to grant them a Class DF – Business Skills (Residence) Visa. The applicants sought a review of the decision on the basis that they had been denied the visa despite the husband meeting the residency requirement under clause 892.215 of the Migration Regulations 1994 (Cth). The central issue before the court was whether the primary criteria in paragraph 892 of the Migration Regulations could be satisfied by a party other than the primary applicant, in light of the note at clause 892.2 stating that the primary criteria must be satisfied by at least one member of the family unit.

The court examined the legislative framework governing the granting of the visa and found that the criteria in clause 892.215 of the Regulations must be satisfied personally by the primary applicant seeking to satisfy the criteria. The court determined that the primary criteria could not be satisfied by the second appellant, as the primary applicant was required to meet the residency requirement herself. The note at clause 892.2 did not alter this requirement, as it referred to the need for at least one member of the family unit to meet the criteria, not that the criteria could be satisfied by another member. The court held that the applicants did not meet the criteria for the grant of the visa, as the first appellant had not been resident in Australia for at least one year in the two years before her relevant visa application.

As a result of the court's findings, the appeal was dismissed. The court also ordered that the appellants pay the first respondent’s costs, fixed in the sum of $6,270, in accordance with Rule 39.32 of the Federal Court Rules 2011. This decision reinforces the requirement for the primary applicant to personally satisfy the criteria for the grant of a Class DF – Business Skills (Residence) Visa.