An apple a day…

Depending on the type and duration of the visa you apply for, you may be required to submit information about your health to Immigration New Zealand (“INZ”). Most applicants have no problem meeting INZ’s health criteria. That said, we are often asked to intervene in applications (and appeals) where health is an issue.

Set out below are two case studies which attempt to shed some light on the complex inner workings of INZ’s health requirements as they relate to residence visa applications (only). As will be demonstrated, no two cases are the same when it comes to health issues.

Case Study 1

Applicant A is the adopted child of a New Zealand Resident Visa holder. She is six years old and would like to apply for a Resident Visa under the Dependent Child Category. She was born with cerebral palsy but she lives a relatively independent life and does not require full time care to manage her diagnosis.

Instruction A4.10.1 of the INZ Operational Manual lists conditions deemed to impose significant costs and / or demands on New Zealand’s health and / or education services for Resident Visa applicants. Unfortunately, cerebral palsy is a listed condition. Applicant A does not therefore meet INZ’s health requirements.

The question then becomes, does Applicant A qualify for a Medical Waiver?

Without traversing in detail the complex instructions attached to Medical Waivers, suffice it to say that surprisingly the answer is yes: Applicant A qualifies for a Medical Waiver. Essentially, even though Applicant A’s diagnosed medical condition is technically captured by Instruction A4.10.1, she nevertheless qualifies for a Medical Waiver because:

a) she was born and adopted after her father secured his own Resident Visa;

b) she meets all of the other requirements of the Dependent Child Resident Visa Category;

c) her diagnosis does not require full time care in the community to manage; and

d) she is not caught by the other Medical Waiver exclusion clauses.

As such, Applicant A was granted a Resident Visa – without any restrictive conditions –  and she can live in New Zealand with her father.

Case Study 2

Applicant B is a fully qualified Architect with 6 years of work experience in Belgium. He is 35 years old, single and does not have any dependent children. He applied for a Resident Visa under the Skilled Migrant Category from outside New Zealand; he has never been to this country. He was diagnosed with clinical depression when he was 15 years old. He was hospitalised once for this condition when he was 17 years old. Since that time, Applicant B has managed his mental health diagnosis well, including prescription medication and regular psychotherapy sessions.

“Major psychiatric illness and / or addiction including any psychiatric condition that has required hospitalisation and / or where significant support is required” is listed at Instruction A4.10.1.

Two questions come to mind regarding Applicant B’s ability to meet INZ’s health requirements:

a) Is he captured by Instruction A4.10.1, given that his condition appears to be on the lower end of the scale and well managed?

b) If he is captured by Instruction A4.10.1, does Applicant B qualify for a Medical Waiver?

The answer to first question will arguably depend on the specialist medical reports he provides INZ from his treating Psychotherapist, and, INZ’s Medical Assessor’s opinion. Factors that could be relevant include the duration of time that has passed since he was hospitalised for clinical depression, the triggering event requiring hospitalisation, and his current management plan. Unfortunately for Applicant B, INZ determined that his condition was captured by Instruction A4.10.1 because he had previously been hospitalised for clinical depression, and as such that he did not have an acceptable standard of health.

Applicant B was provided with the opportunity to seek a Medical Waiver pursuant to Instruction A4.70. He submitted documents and a cover letter outlining the reasons why he believed he should be granted a Medical Waiver, including:

a) the current skilled nature of his job offer as an Architect (Skill Level 1, ANZSCO Unit Group 232111);

b) the skilled nature of his work experience in a comparable labour market to New Zealand;

c) his condition being well-managed (including a positive medical report from his Psychotherapist); and

d) he has the resources to pay for his ongoing medical needs himself, given his high-paying job offer from a well-respected Architecture firm in Wellington.

Weighing and balancing all of these factors, INZ ultimately declined to grant a Medical Waiver to Applicant B, its reasons including a finding that he had a mental health condition which would require long-term medical care to manage. This concern was not outweighed by the potential benefits he could bring to New Zealand through his skills and expertise as an Architect. That he could pay for his health needs himself was in fact irrelevant to the Medical Waiver assessment. It probably also didn’t help his case that Applicant B had no ties to New Zealand, having never stepped foot in the country.

As a result, his application for a Resident Visa was declined.

Final thoughts

As has been demonstrated above, each case really does turn on its own facts. This can sometimes make it difficult to predict the decision INZ will ultimately make in an application where there are serious health issues. We find that sometimes we win the cases we expect to lose, and lose the cases we are sure will succeed. Alas, this area of Immigration Law is not an exact science. Therefore, it is wise to seek legal advice from an experienced lawyer or adviser if you or your family have a medical issue that could be potentially problematic. Ideally you should do so before you even make a visa application so that you can better understand the risks involved and the potential outcome.

Disclaimer: The case studies are abstract examples only and do not relate to real persons. They are based on policy interpretation (in terms of potential visa outcomes) as well as prior experience working in this field.

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This entry was posted in Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Practice of Law. Bookmark the permalink.

One Response to An apple a day…

  1. Kang Li says:

    what I consider in applicant A and applicant B the key decision factor is, for applicant A, it could not be declined due to the humanity reason.Even if it were declined, applicant A has more successful chance to win the appeal for children’s human rights reason. While applicant B is an adult, INZ has absolute discretion to decline the case without the concern of losing the further appeal in tribunal.

    Like

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