Najm Ali Mohamed (Migration)

This matter concerned an application for a Skilled Independent (Permanent) visa (Subclass 189) by Najm Ali Mohamed. The dispute arose because the Department's records indicated that the applicant had been "auto-cleared" in relation to health criteria, and a decision was made without the applicant having undergone the necessary medical examinations. The applicant sought review of this decision.

The court was required to determine whether the decision to grant the visa, or to refuse it based on the applicant's health status, was made appropriately. Specifically, the court needed to consider the requirements of the Migration Regulations 1994, particularly Schedule 4, clause 4005(1), which outlines the health criteria for visa applicants, including the necessity of medical assessments and being free from certain diseases or conditions.

The court found that the applicant had not been afforded the opportunity to undertake the required medical examinations. The decision-maker had proceeded on the basis of departmental records suggesting an automatic clearance, which was contrary to the procedural fairness required. Consequently, the court determined that the matter should be remitted to the Minister for reconsideration of the visa application. The court directed that the first applicant be considered to meet the health criteria under PIC 4005(1) for the purposes of clause 189.234 of Schedule 2 to the Regulations, allowing for a proper assessment of the remaining criteria.