Sub 485: changing streams: Part 2

Section 46(1) of the Migration Act 1958 (Cth) provided:

(1)     Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

(a)     it is for a visa of a class specified in the application; and

(b)     it satisfies the criteria and requirements prescribed under this section; and

(ba)     subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

(c)     any fees payable in respect of it under the regulations have been paid; and

(d)     it is not prevented by any provision of this Act, or of any other law of the Commonwealth …; and

(e)     it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including ...

Sections 65(1)(a)(i) and 65(1)(a)(ii) provided:

Decision to grant or refuse to grant visa

 (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 ...

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Can it be said that, what must be identified in a visa application, for the application to comply with s 46(1)(a) of the Migration Act 1958 (Cth), is a “class” of visa, that is one of the classes created by the Act or prescribed by r 2.01 and Schedule 1 to the Migration Regulations 1994 (Cth)?

Question 2: If the answer to Question 1 is 'yes', does it necessarily follow that the two streams in Schedule 2 to the Regulations for visa subclass 485 are part of the same class?

Question 3: Did the words “criteria for it” in s 65(1)(a)(i) and (ii) of the Migration Act 1958 (Cth) refer to the criteria applicable to the valid visa application that is under consideration?

Question 4: Was the reference in items 1229(3)(k) and 1229(3)(l) of Schedule 1 to the Migration Regulations 1994 (Cth) to a visa application "seeking to satisfy" the requirements in the Graduate Work Stream or the Post-Study Work Stream, respectively, a mere reference to what stream an applicant indicated in the visa application form, regardless of what their actual subjective intention was?

Question 5: Can it be said that "Subclass 485 must be understood as requiring a person who nominated the Graduate Work Stream in their visa application to satisfy the criteria referable to that stream (ie, cl 485.222); in other words, there is no scope for a person in that position to be granted the visa by satisfying criteria relevant to other streams"?

The FCAFC answered those questions as follows: