Medical Waivers Instructions Shi Sheng Cai Solicitor, Queen City Law
SUMMARY OF TOPICS Pre-application: Acceptable standard of health ( ASH ) definition A4.10.1 and medical jargon Whether a medical waiver will be available Medical waiver assessment Instructions Notes on positive factors After a decision has been made Next best steps Things to look out for
WHY BEING ASH IS IMPORTANT A4.15 Acceptable standard of health (applicants for temporary entry class visas) Applicants for temporary entry class visas must have an acceptable standard of health, unless they have been granted a visitor visa for the purpose of obtaining medical treatment (see V3.40) or have been granted a medical waiver (see A4.65). Exception to policy A4.10 Acceptable standard of health (applicants for residence) Applicants for residence class visas must have an acceptable standard of health unless they have been granted a medical waiver or (f), below, applies. An application for a residence class visa must be declined if any person included in that application is assessed as not having an acceptable standard of health and a medical waiver is not granted (see A4.60).
TEMPORARY ASH DEFINITION Temporary Instructions: A4.15(b) Applicants for temporary entry class visas to New Zealand are considered to have an acceptable standard of health if they are: unlikely to be a danger to public health; and unlikely to impose significant costs or demands on New Zealand's health services during their period of intended stay in New Zealand; and (if they are under 21 years of age and are applying for a student visa) unlikely to qualify for Ongoing Resourcing Schemes (ORS) funding during their period of intended stay in New Zealand; and able to undertake the work or study on the basis of which they are applying for a visa, or which is a requirement for the grant of the visa.
TEMPORARY ASH DEFINITION (continued) A4.15.1 Assessment of whether an applicant for a temporary entry class visa is unlikely to impose significant costs or demands on New Zealand's health services Assessment of whether an applicant for a temporary entry class visa is likely to impose significant costs or demands on New Zealand's health services will take into account whether there is a relatively high probability that the applicant will need publicly funded health services during their period of stay in New Zealand including
RESIDENCE ASH DEFINITION Residence Instructions: The requirement that an applicant for a residence class visa must be unlikely to impose significant costs on New Zealand's health services is not met if, in the opinion of an Immigration New Zealand medical assessor, there is a relatively high probability that the applicant's medical condition or group of conditions will require health services costing in excess of NZ$41,000. In the case of acute medical conditions, the medical assessor will provide an opinion on whether there is a relatively high probability that the condition or group of conditions will require health services costing in excess of NZ$41,000 within a period of five years from the date the assessment against health requirements is made. In the case of chronic recurring medical conditions, the medical assessor will provide an opinion on whether, 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$41,000.
A4.10.1 AND MEDICAL JARGON Acute: new infection/ onset of disease; Chronic: persisting for a long time, often for the entirety of a lifespan; Progressive: illness which will get worse over time; Malignancy: cancer which can spread as opposed to a benign tumor; Renal/Urinary: kidneys; Cardiac: heart; Coronary: arteries around heart; Cerebrovascular: Blood supply to brain; Hypertension: high blood pressure, Pulmonary: lungs, NTM: Nontuberculous mycobacteria (can cause respiratory failure). HBsAg and Hep B: A person with Hep B antigens can be immune or will require treatment; hba1c: glucose, important measure for diabetes.
EXAMPLE: CASE STUDY
MEDICAL WAIVERS AND TEMPORARY APPLICANTS A4.65 Medical waivers (applicants for temporary entry class visas) Applicants for temporary entry class visas will not be considered for the grant of a medical waiver unless they: are applying for work visas as seconded business personnel (see A4.65.1 below); or have submitted a claim for refugee or protection status in New Zealand; or have been recognised as having refugee or protection status in New Zealand; or are the partner or dependent child of a New Zealand citizen or residence class visa holder; and the purpose of their stay in New Zealand is to be with that New Zealand citizen or residence class visa holder; and if they applied for a residence class visa in New Zealand they would meet the criteria for residence under Partnership (see F2.5 (a)) or Dependent Child (see F5.1(a)) instructions. A4.65(b): applicants who were withdrawn from their partner or parent s earlier application for a residence class visa will not be able to benefit from A4.65(a)(iv). Exception to policy
MEDICAL WAIVERS AND RESIDENCE APPLICANTS A4.60 Medical waivers (applicants for residence class visas) Applicants for residence class visas in New Zealand who are assessed as not having an acceptable standard of health and whose applications meet all other requirements for approval under the relevant Government residence instructions may be considered for the grant of a medical waiver unless they: require dialysis treatment, or an Immigration New Zealand medical assessor has indicated that they will require such treatment within a period of five years from the date of the medical assessment; or have severe haemophilia; or have a physical, intellectual, cognitive and/or sensory incapacity that requires full time care, including care in the community; or currently have tuberculosis (TB) (any form including pulmonary and non-pulmonary TB, Multidrug- Resistant (MDR)-TB and Extensively Drug-Resistant (XDR)-TB) and have not completed full treatment for TB as outlined in the New Zealand Guidelines for TB Treatment; or have had a history, diagnostic findings or treatment for MDR-TB or XDR-TB, unless they have been cleared by a New Zealand Respiratory or Infectious Diseases specialist upon review of their file or review of the applicant as outlined in the New Zealand Guidelines for TB.
MEDICAL WAIVERS AND RESIDENCE APPLICANTS (continued) Medical waivers will also not be granted to people who: are applying for residence under one of the Family Categories; and were eligible to be included in an earlier application for a residence class visa (or a residence visa or residence permit issued or granted under the Immigration Act 1987) as the partner of a principal applicant or the dependent child of a principal applicant or their partner; and were not declared in that earlier application; or were not included in that earlier application; or were withdrawn from that earlier application. Applicants (and dependants included in their application) who have been recognised as having refugee or protection status will be granted medical waivers, unless (a) above applies
MEDICAL WAIVER INSTRUCTIONS A4.70 Determination of whether a medical waiver should be granted (residence and temporary entry) When determining whether a medical waiver should be granted, an immigration officer must consider the circumstances of the applicant to decide whether they are compelling enough to justify allowing entry to, and/or a stay in New Zealand. Factors that officers may take into account in making their decision include, but are not limited to, the following: the objectives of Health instructions (see A4.1) and the objectives of the category or instructions under which the application has been made; the degree to which the applicant would impose significant costs and/or demands on New Zealand's health or education services; whether the applicant has immediate family lawfully and permanently resident in New Zealand and the circumstances and duration of that residence; whether the applicant's potential contribution to New Zealand will be significant; the length of intended stay (including whether a person proposes to enter New Zealand permanently or temporarily). An applicant who is the partner or dependent child of a New Zealand citizen or residence class visa holder, who would otherwise meet the criteria for residence under Partnership (see F2.5(a)) or Dependent Child (see F5.1(a)) instructions, will be granted a medical waiver unless the limitations on the grant of medical waivers to such persons set out at A4.60(a) and A4.60(b) apply. An applicant who has been recognised as having refugee or protection status will be granted a medical waiver, unless the limitation on the grant of medical waivers to such persons set out at A4.60(a) applies. An immigration officer should consider any advice provided by an Immigration New Zealand medical assessor on medical matters pertaining to the grant of a waiver, such as the prognosis of the applicant. An immigration officer must record decisions to approve or decline a medical waiver, and the full reasons for such a decision.
THINGS TO NOTE WITH POSITIVE FACTORS Positives Humanitarian circumstances e.g. whether the applicant has family/ support outside of New Zealand; Non-immediate family lawfully and permanently resident in New Zealand, e.g. grandchildren. Could note the rights of children; In commenting on meeting instructions, whether there is a degree of significant contribution; Whether applicant requires immediate treatment would immediately incur costs on New Zealand s health system; The number of New Zealand citizen/ resident family.
AFTER A DECISION NEXT BEST STEPS Double check if your client has a condition which is barred under A4.60(a)(i)-(iv) Check if an opportunity to provide evidence in regards to a medical waiver was provided by INZ Request an OIA for the medical waiver assessment
THINGS TO WATCH OUT FOR WHEN REVIEWING A MEDICAL WAVER ASSESSMENT Check for a decision making table; Whether positive factors are clumped; Possession of health insurance should not be considered as a negative factor; Carefully assess the medical assessors comments against what is listed by INZ as the degree to which an appellant would impose significant costs and or demands on NZ s health services; If INZ include an additional negative factor in regards to additional medical expenditure.
CASE STUDY Factors in Favour of the Applicant Applicant meets the necessary criteria and character requirements under Parent Retirement instructions, They showed evidence of annual income more than around NZD 60,0000 per annum. They are willing to invest over NZD 1 million in NZ should the residency be granted Applicant does not appear to require any immediate treatment of his medical conditions when this medical waiver assessment is made Purpose for the applicants to apply for residence here is to be close to their family who are well settled in Auckland. The PA s onshore family members all appear to be making contributions to New Zealand society. Factors Against the Applicant Applicant has disease which has been identified by our medical team as a condition under A4.10.1 which is deemed to impose significant costs or demands on New Zealand s already over-burdened cardiac surgery health services Information from MoH report Cardiac Surgery Services in NZ are overburdened. As such any additional expenditure will need to be carefully evaluated. A4.2.10(d) requires that when assessing likely costs, no account is taken of the ability or willingness of the applicant or their family to pay for health services.
IMPORTANT FACTORS TO NOTE Factors in Favour of the Applicant Applicant meets the necessary criteria and character requirements under Parent Retirement instructions, They showed evidence of annual income more than around NZD 60,0000 per annum. They are willing to invest over NZD 1 million in NZ should the residency be granted. Applicant does not appear to require any immediate treatment of his medical conditions when this medical waiver assessment is made. Purpose for the applicants to apply for residence here is to be close to their family who are well settled in Auckland. The PA s onshore family members all appear to be making contributions to New Zealand society. Factors Against the Applicant Applicant has disease which has been identified by our medical team as a condition under A4.10.1 which is deemed to impose significant costs or demands on New Zealand s already over-burdened cardiac surgery health services Information from MoH report Cardiac Surgery Services in NZ are overburdened. As such any additional expenditure will need to be carefully evaluated. A4.2.10(d) requires that when assessing likely costs, no account is taken of the ability or willingness of the applicant or their family to pay for health services.