s 65 — Grant of visa — Migration Act 1958
Text of provision
65 Decision to grant or refuse to grant visa
(1) 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 sections 40, 41, 42, 48, 48A, 161 or 500A or any other provision of this Act or of the regulations; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; and
(b) if not so satisfied, is to refuse to grant the visa.
Plain English
Section 65 sets out the decision the Minister must make after receiving a valid visa application. The decision is binary: grant or refuse. There is no discretion to leave the application undecided.
If the Minister is satisfied that all four conditions in s 65(1)(a) are met — the health criteria, the other prescribed criteria, no bars to grant, and the application charge paid — the Minister must grant the visa. The word "is to" means the Minister has no discretion to refuse if all criteria are satisfied.
Conversely, if the Minister is not satisfied that all those conditions are met, the Minister must refuse. This dual obligation — to grant if satisfied, to refuse if not — means the decision-maker cannot simply delay or avoid making a decision.
For Subclass 189 and other points-tested visas, the "other criteria" include passing the points test under s 101 and the specific criteria in the Migration Regulations such as cl 189.211.
Practical effect
Section 65 is the central decision-making provision of the Act. It is the provision under which every visa is granted or refused.
The requirement for a "valid application" means that if the application was not made in the prescribed form or circumstances, there is no valid application before the Minister and s 65 is not engaged. An invalid application cannot result in a visa grant under this section.
Section 65 also creates a duty to decide. A long delay in processing a visa application may give rise to a mandamus action in the Federal Court to compel a decision, because the Minister is obliged by law to decide.
The bars to grant listed in s 65(1)(a)(iii) — including ss 40, 41, 42, 48, 48A — are separate provisions that prevent grant regardless of whether other criteria are satisfied. For example, s 48 prevents most onshore applications by persons who have previously been refused a visa.