Section 65 — Decision to grant or refuse to grant visa
Text of provision
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa. Note 1: Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number. Note 2: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). do not apply to the Minister’s power under that section.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).
Plain English
Section 65 states the decision-making rule for visa applications. An officer must:
- Grant the visa if the applicant satisfies the criteria for the visa (as set out in the primary and secondary criteria in the Migration Regulations), and there is no prescribed reason not to grant it; or
- Refuse to grant the visa in all other cases.
There is no third option — an officer cannot "adjourn" or "defer" a decision indefinitely once a valid application has been lodged. The obligation is to decide.
Practical effect
The binary grant/refuse framework in s 65 is fundamental to the structure of migration decision-making. Officers have no general discretion to grant a visa that does not meet the criteria, and no discretion to refuse a visa that does (subject to character, health, and other mandatory grounds).
A refusal decision is a "migration decision" subject to merits review in the Administrative Review Tribunal (ART) (for most visa classes) and judicial review in the Federal Court or High Court.
The "no prescribed reason not to grant" requirement captures mandatory refusal grounds — such as public interest criteria in Schedule 4 to the Regulations that apply across all or most visa classes.