MEDICAL PROBLEMS

Under current immigration residence criteria all individuals included in an application for New Zealand permanent residence are required to demonstrate that they have an acceptable standard of health for the grant of New Zealand residence, or, failing this, they qualify for a "medical waiver".

There are essentially two tiers operated by Immigration New Zealand (INZ) in relation to determining whether or not an individual is able to demonstrate an acceptable standard of health in a residence application.

First, INZ have compiled a list of medical conditions that will be deemed to not meet the acceptable standard of health and therefore will require a medical waiver in order for the application (including an individual) to be approved.

The current list of health conditions which indicate that an individual is not of the acceptable standard of health is as follows:

• HIV infection;
• Hepatitis B surface antigen positive, with abnormal liver function;
• Hepatitis C, RNA positive, with abnormal liver function;
• Malignancies of solid organs and haematopoietic tissue, including past history of, or currently under treatment;
  Exceptions are:
  1. treated minor skin malignancies (not melanoma);
  2. malignancies where the interval since treatment is such that the probability of cure is > 90%, eg: early stage (I & IIA) breast cancer at 5 years; low risk prostate cancer at 5 years; early stage (Dukes A & B1) colorectal cancer at 5 years; childhood leukaemia at 5 years.
• Solid organ transplants, excluding corneal grafts more than 6 months old;
• Chronic renal failure or progressive renal disorders; Solid organ transplants, excluding corneal grafts more than 6 months old;
• Chronic renal failure or progressive renal disorders;
• Diseases or disorders such as osteoarthritis with a high probability of arthroplasty in the next four years; Central Nervous System disease, including motor neurone disease, complex partial seizures, poorly controlled epilepsy, prion disease, Alzheimer's and other dementia, and including paraplegia and quadriplegia; Cardiac disease including ischaemic heart disease, cardiomyopathy or valve disease requiring surgical and/or other procedural intervention;
• Chronic obstructive respiratory disease with limited exercise tolerance and requiring oxygen;
  Genetic or congenital disorders: muscular dystrophies, cystic fibrosis, thalassaemia major, sickle cell anaemia if more than one sickle crisis in 4 years, severe haemophilia, and severe primary immunodeficiencies;
  Severe autoimmune disease, currently being treated with immuno-suppressants other than prednisone;
  In a person up to the age of 21 years, a severe (71-90 decibels) hearing loss or profound bilateral sensori-neural hearing loss;
• In a person up to the age of 21 years, a severe vision impairment with visual acuity of 6/36 or beyond after best possible correction, or a loss restricting the field of vision to 15-20 degrees;
• In a person up to the age of 21 years, a severe physical disability, where they are unable to stand and walk without support, and cannot independently dress, eat, hold a cup, or maintain their stability when sitting.

If these medical conditions are evident (in most instances further reports from specialists are required to confirm this), then the applicant’s condition will be deemed to impose a significant cost and/or demand on the provision of New Zealand’s health services and therefore the individual will fail the requirement to demonstrate a satisfactory standard of health.

In other instances, where conditions are not listed on the above list, an individual included in the application will also fail the good health requirement where the following applies:

1. In the case of acute medical conditions, there is a relatively high probably that the condition or group of conditions will require health services costing in excess of NZ$25,000.00 within a period of four years from the date the assessment is made; or
2. In the case of chronic recurring medical conditions, over the predicted course of the condition or group of conditions, there is a relatively high probability that the condition or group of conditions will require health services costing in excess of NZ$25,000.00; or
3. The Ministry of Education has determined that there is a relatively high probability that the applicant's physical, intellectual, sensory or behavioural condition or group of conditions would entitle them to Ongoing and Reviewable Resourcing Schemes (ORRS) funding; or
4. There is a relatively high probability that the applicant’s medical condition or group of conditions will require health services for which the current demand in New Zealand is not being met (irrespective of actual service costs).

With certain types of ongoing conditions (which require medication for example) it is often not too difficult for an individual to have a condition which will for the life of the condition cost the New Zealand taxpayer in excess of $25,000.00 of funding.  It is relatively common therefore for an individual included in an application for New Zealand residence to be required to undertake further specific tests following the provision of a Medical & Chest X-Ray Certificate to determine the actual probability as to the costs of services and provision of services (such as ORRS funding) where the current demand for health services are not able to be met.

The key point here is twofold in relation to the INZ position if an individual is not able to demonstrate an acceptable standard of health.

First, the initial opinion from the INZ medical assessor should never be accepted at face value and in all instances for clients represented by this firm a consultant physician report is obtained (who is fully familiar with New Zealand immigration law and policy) to contest the medical assessor’s opinion (if possible).  In many instances, the initial opinion and/or decision of INZ in relation to the standard of health has been able to be reversed by a sound submission with a consultant physician’s report concluding contrary to the initial findings of the INZ medical assessor.

Second, the term "relatively high probability" is a term which is not readily understood or applied correctly by INZ officers nor INZ medical assessors.  The term "relatively high probability" is not a civil standard of proof (perhaps 50/50), nor is it a criminal standard of proof beyond reasonable doubt, it lies somewhere in between.  Therefore, there must not merely be a remote possibility that treatment and/or costs will be incurred, it must be demonstrated that there is a relatively high probability that costs and/or treatment will be required in order for an individual to potentially fail health requirements.

Our firm has taken over many applications where issues have been encountered with the INZ medical assessor (and cases have also been referred by licensed immigration advisers) with the same issues encountered.  A common example is the use of the Body Mass Index (BMI) rating in Medical & Chest X-Ray Certificates where many INZ medical assessors use this basic height and weight calculation to determine whether or not an individual is likely to incur expensive health treatment in New Zealand due to this measurement.

In many instances, even where an individual has high BMI, this does not necessarily mean that they are unhealthy, nor does it necessarily mean that there is a relatively high probability that this healthy person (albeit with high BMI) will require health services and/or funding in the future in New Zealand.

Our firm has satisfactorily resolved many cases where merely BMI has been stated as a reason to decline a residence application where, with a sound and specific understanding of that particular individual’s health position a conclusion cannot be lawfully drawn that there is a relatively high probability that they will require treatment in New Zealand in the absence of other associated medical issues.

The point here, simply, is that if during the processing of an application an individual receives a potentially prejudicial information letter stating that they do not meet the applicable standard of health, then the applicant should not accept this conclusion without seeking a professional opinion.

In many instances the opinions can be challenged (successfully), although if they are not able to be challenged successfully, sound submissions can often be made for a medical waiver to make an exception to health policy to allow the application including the individual to be approved.

In most instances where an individual is deemed to not meet the applicable standard of health, this does not necessarily mean the individual will not qualify for the grant of a residence visa.

Immigration officers cannot automatically decline an application where an individual has failed the standard of health (in the opinion of the INZ medical assessor); they must consider all the circumstances of the applicant to decide whether or not they are compelling enough to justify an exception to INZ health policy being made.

The facts that immigration officers may take into account in their decision to grant a medical waiver include (but are not limited to) the following:

1. the objectives of Health requirements policy and the objectives of the policy or category under which the application has been made;
2. the degree to which the applicant would impose significant costs and/or demands on New Zealand's health or education services;
3. whether the applicant has immediate family lawfully and permanently resident in New Zealand and the circumstances and duration of that residence;
4. whether the applicant's potential contribution to New Zealand will be significant;
5. the length of intended stay (including whether a person proposes to enter New Zealand permanently or temporarily).

Our firm has had considerable success in obtaining medical waivers from “standard” health related issues to exceptionally complicated health issues where significant funding is required.

A balancing exercise is undertaken by INZ in relation to considering any medical waiver as to whether or not the circumstances of the particular case are balanced in favour of granting a waiver as compared to the actual costs involved with envisaged (or potential) treatment and/or services.

If issues are encountered with the processing of an application and a medical waiver is required, seek professional assistance.  Our firm has taken over cases where even medical doctor applicants have not been able to draft an appropriate medical waiver submission, nor have they been able to understand the complexities of the application of INZ policy to satisfactorily address the concerns raised even in a medical context.

If an issue is encountered in relation to a health problem in a residence application, do not simply give up, seek a professional opinion from our firm.  We will provide an accurate and honest opinion in relation to eligibility for a medical waiver before seeking instructions to assist.

INZ medical assessors are not employed by INZ they are consultants, and quite often fail to understand or apply INZ policy correctly, and also, whilst negative opinions are received from INZ medical assessors, due to a different prognosis quite often specialist consultant physicians are able to easily contest the negative position adopted by an INZ medical assessor based on the actual facts of the particular applicant’s condition.

On a final matter, when a medical issue is raised and needs to be addressed, this can considerably delay the processing of a residence visa application (in some instances months).  It is very important therefore that accurate informed advice is received in the event that an individual understands or knows that there will be a health issue with their application before the submission of an application.  In many instances specialist reports and documents can be obtained relatively quickly in anticipation of the INZ medical assessor review to assist to speed up the processing of the application.