Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant, a dual Venezuelan-Portuguese citizen, sought judicial review of the Administrative Appeals Tribunal’s (AAT) decision to uphold the Minister’s refusal to grant her a Temporary Graduate visa. The applicant, who had been in Australia since 2012 on various student visas and had completed multiple vocational courses, applied for the visa on 15 March 2019. The delegate of the Minister refused her application on 28 June 2019, finding she did not meet the criteria under cl 485.212 of Schedule 2 to the Regulations because she took her English language test after lodging her visa application and did not hold an eligible passport. The applicant sought review by the AAT, which affirmed the delegate’s decision on 8 June 2021, finding she did not meet the English language proficiency and passport requirements as specified in cl 485.212. The primary legal issue was whether the AAT erred in finding that the applicant did not meet the requirements of cl 485.212 of Schedule 2 to the Regulations.

The Court found that the AAT did not err in its decision. The Court emphasised that cl 485.212 of Schedule 2 to the Regulations is strict and inflexible, requiring the applicant to take a specified English language test within a three-year period before lodging the visa application, achieve the specified score, and provide the test results with the application. The Court noted that the AAT correctly applied the legislative criteria, which do not allow for any discretion or flexibility regarding the timing of the English language test. The Court found that the applicant’s argument that she obtained the required score at the time of the AAT hearing did not address the inflexible requirements of cl 485.212. Therefore, the AAT’s decision was not based on any jurisdictional error.

Consequently, the Court dismissed the applicant’s application for judicial review, affirming the AAT’s decision. The Court held that the AAT correctly applied the legislative criteria in cl 485.212, and there was no basis for finding that the AAT had erred in its decision. The Court noted that the applicant’s grounds of review were misconceived as they did not address the inflexible nature of the legislative criteria. As such, the applicant’s application for judicial review was dismissed, and the AAT’s decision to uphold the delegate’s refusal of the visa application was affirmed.