Migration Act s 65 - decision to grant or refuse
The Minister must grant the visa if every criterion is satisfied, and must refuse if any is not. There is no general discretion. This is what makes individual PICs (especially PIC 4020) bright-line.
Primary source
(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 (providing bogus documents or false or misleading information), 91WB (applications for protection visas by transitory persons), 500A (refusal or cancellation of temporary safe haven visas) 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." Migration Act 1958 (Cth) s 65(1)
What this section does
s 65 is the operative grant-or-refuse provision. It establishes a binary rule:
- If all criteria are satisfied, the Minister must grant the visa.
- If any criterion is not satisfied, the Minister must refuse.
There is no general discretion to grant on humanitarian grounds outside specific waiver provisions. The case officer's job is to evaluate each criterion as satisfied or not satisfied, then apply s 65.
Why this matters for case strategy
Because s 65 is binary, every criterion matters. There is no "85% of criteria satisfied" outcome that produces an 85% grant. The case must satisfy every applicable criterion: the four-pillar relationship test (under reg 1.09A), the 12-month gate (reg 2.03A), the police clearances (reg 2.03AA + PIC 4001), health (PIC 4005), character (PIC 4001), Australian values (PIC 4019), and the false-info gate (PIC 4020).
The migration agent's job is to ensure all criteria are satisfied at lodgement so s 65 produces the grant outcome. RFIs (Requests for Information) are the Department's mechanism to give the applicant a chance to satisfy a criterion that initially appeared not satisfied.
Relationship to PIC 4020
PIC 4020 is a Schedule 4 criterion that is incorporated by reference into most visa subclasses (including 820 and 801). If PIC 4020 is not satisfied (i.e. material false information was provided), s 65 mandates refusal. Combined with the 3-year bar that follows a PIC 4020 refusal, this is what makes concealment catastrophic.
My case
- Submit a valid application (s 46) - lodgement mechanics
- Satisfy reg 1.09A - relationship is de facto (four-factor evidence pack)
- Satisfy reg 2.03A - 12-month duration met by 23-month relationship
- Satisfy reg 2.03AA - police clearances from countries of residence (UK ACRO)
- Satisfy PIC 4001/4002 - character / security (police certs evidence)
- Satisfy PIC 4005 - health (HAP medical exam, post-lodgement)
- Satisfy PIC 4019 - Australian values declaration on Form 47SP
- Satisfy PIC 4020 - truthful disclosure of B-1 refusal + ESTA denial
- Pay AUD $9,365 visa application charge