RESIDENCE REVIEW BOARDNEW ZEALAND |
|
AT WELLINGTON |
RESIDENCE APPEAL NO: 15195 |
Before: |
G Melvin (Member) |
Representative for the Appellant: |
Eduardo Sampang |
Date of Decision: |
31 January 2007 |
Category: |
Skilled Migrant |
Decision Outcome: |
Section 18D(1)(e) |
________________________________________________________________
DECISION
________________________________________________________________
[1] The appellant is a 44-year-old citizen of the Philippines who applied for residence under the Skilled Migrant category of the Government residence policy.
[2] Immigration New Zealand (INZ) declined the application on the ground that the appellant did not meet the policy's minimum health requirements. The principal issue for the Board is whether INZ was correct to decline the application on that ground.
[3] The appellant submitted his residence application to INZ on 15 March 2005. He included in his application his wife, aged 33, and his two dependent children, and he claimed a total of 110 points: 20 for his age, 50 for his qualification, 30 for work experience and 10 for his wife's qualification. The appellant's medical certificate recorded that he had "chronic hepatitis C" and included a specialist's report dated 18 February 2005.
[4] INZ awarded the appellant the points he claimed in his application and, following an interview with the appellant and his wife in April 2005, it invited him to apply for a work to residence visa. The invitation, dated 2 June 2005, advised that it was subject to "medical and x-ray clearance".
[5] Meanwhile, by letter dated 1 June 2005, INZ referred the appellant's medical and x-ray certificates to its Consultant Physician. In its letter, INZ asked the Consultant Physician to recommend whether the applicant was in "good health, together with any comment". INZ received the Consultant Physician's reply on 30 June 2005. The reply concluded that the appellant was not in good health on the basis that he would be a burden on health services, and it provided the following comment (verbatim):
"Chronic Hepatitis C with the recommendation that he should be offered interferon & riboflavin If he has Hep C 1A the success rate of treatment is ~ 50-55%. If treatment is successful could reapply at a later date.
Cost of ribaverin/interferon is ~ $20,000 for a 6 month course".
[6] On 7 July 2005, INZ wrote to the appellant and advised that its Consultant Physician had recommended that he might be a burden on health services. It enclosed a copy of the Consultant Physician's comment and advised that the appellant take it to his local panel doctor. It gave the appellant 21 days from the date of the letter to submit any comments he wished to make.
[7] In a reply dated 27 July 2005, the appellant's agent submitted that the appellant could be granted a medical waiver. He advised that the appellant had learnt of his medical condition after the panel doctor's examination and that the appellant had acquired hepatitis C during a blood transfusion in 1991 after an accident. He stated that the medical certificates of the appellant's wife and children showed that they were in normal health and the appellant had not transmitted hepatitis C to them. The agent advised that the appellant and his wife had agreed to shoulder the $20,000 cost of a six-month course of treatment in New Zealand, as the Consultant Physician had suggested. According to the agent, the appellant and his wife had sufficient financial resources to settle in New Zealand and undergo medical treatment there.
[8] The agent enclosed with the letter a brief medical report dated 15 July 2005 from the appellant's doctor. Amongst other things, the doctor noted that the appellant had "most likely" acquired the infection as the result of a blood transfusion in 1991. The doctor also noted that the appellant was currently asymptomatic with "SGPT 2 x normal value" and that, as the infection is acquired only via blood and blood products, he was not a public health hazard provided precautions were made regarding spreading the infection by blood.
[9] INZ then referred the agent's letter and the doctor's medical certificate to its Consultant Physician. INZ enclosed with the documents a compliment slip upon which it wrote "DEAR CP, PLEASE SEE THE COMMENTS ATTACHED". The Consultant Physician's reply, dated 15 October 2005, was "No", together with the following comments (verbatim):
"Burden on Health Services
Recommended combination interferon & ribaveron. Cost close to $40,000 for 12 months
6 units 3x weekly 3 months
then 3 units 3x weekly 6-12 months.
Reassess post treatment."
[10] INZ wrote to the appellant again on 28 March 2006. It referred to its letter of 7 July 2005 to the appellant, the Consultant Physician's original recommendation, and the appellant's agent's reply of 27 July 2005. It attached a copy of the Consultant Physician's further comments of 15 October 2005. Further, it advised (verbatim):
"Under the policy, applications covered under the above section will not automatically be declined on health grounds. Officers must consider the surrounding circumstances to decide whether they are compelling enough to justify making an exception to the acceptable standard of health requirement. The circumstances include but are not limited to the following factors as appropriate:
i the objectives of the relevant residence policy or category, and
ii whether New Zealand has sufficient resources, and the degree to which the applicant would be a burden on New Zealand health services, and
iii whether the applicant has a spouse or partner who is a New Zealand citizen or resident, and
iv whether the applicant has immediate family lawfully and permanently resident in New Zealand, and
v whether the applicant's potential contribution to New Zealand will be significant, and
vi whether the applicant meets all other requirements of the Humanitarian category"
Although INZ referred in its letter to "the above section", it did not set out or explain what that section was.
[11] By reply dated 11 April 2006, the appellant's agent submitted that the appellant should be granted a medical waiver as stated in "A 4.60 Medical waivers". The agent also stated that the appellant had sufficient funds to meet the expenses of one year's treatment as well as the costs of his family living in New Zealand for three months. In addition, the appellant was willing to sell property with an approximate value of $60,000 if needed. The agent attached two bank certificates, one dated 20 July 2005 and the other 10 April 2006, certifying the amount of funds held in bank accounts at the China Bank. He also enclosed a cash salary voucher dated 21 July 2005 and an undated terminal backpay computation sheet for the appellant's wife. Although the agent stated in his letter that he enclosed a certified true copy of a land title, the Board has not sighted this on INZ's file.
[12] By letter dated 15 May 2006, INZ set out its decision to decline the application (verbatim):
"We regret to advise that your application for residence in New Zealand under the Skilled Migrant Category is not able to be approved because you do not meet the minimum requirements of health as required by policy.
Your medical together with the comment from Consultant Physician came back on 1st June 2005 whose recommendation was "No" on the basis that your condition would be a burden on health services as you have Chronic Hepatitis C with the recommendation that you should be offered interterm and riboflavin. Further to this, our Consultant Physician commented that if you have Hep C, the success rate of treatment is 50-55%. If successful, you could re-apply at a later date. Cost of riboflavin and interterm is NZD 20,000 for a six month course.
On 7th July, we forwarded the doctor comment to your immigration agent, Sampang Immigration who have complied and submitted the test accordingly on 28th July 2005. The applicant comments also include the following information:
‹› that you acquired the Hepatitis C during your blood transaction in 1991 after an accident. However, I note that you provided no evidence to support this claim
‹› that you were married and had two children and the result of the medical test of his dependent shows that all their health conditions are normal which means you did not transmit your Hepatitis C to your family
‹› that you and your wife agree to shoulder the NZD 20,000 expenses for a sic month course in New Zealand as suggested by consultant Physician. Furthermore, you also have enough financial resources to start life and undergo medical treatment in New Zealand. To support this, you have attached the certificate of bank deposit of USD 7,000, terminal Pay Sheet of PHP 557,242 (NZD 70,000 approximately) and you are also waiting for your terminal pay computation with an approximate amount of PHP 1,300,000 (NZD 31,000 approximately)
This additional test was forwarded to Consultant Physician for his revision and recommendation. His recommendation came back on 28th October was "No" on the basis that your condition would be a burden on health services and recommended combination interterm riboflavin. Cost close to $40,000 for 12 months. 6 units: 3 weekly 3 months then 3 unites 3 weekly 6-12 months. Reassess post treatment.
Under the Policy A4.6.5.1 Action, applications covered under the above section will not automatically be declined on health grounds. Officers must consider the surrounding circumstances to decide whether they are compelling enough to justify making an exception to the acceptable standard of health requirement. The circumstances include but are not limited to the following factors as appropriate:
i the objectives of the relevant residence policy or category, and
ii whether New Zealand has sufficient resources, and the degree to which the applicant would be a burden on New Zealand health services, and
iii whether the applicant has a spouse or partner who is a New Zealand citizen or resident, and
iv whether the applicant has immediate family lawfully and permanently resident in New Zealand, and
v whether the applicant's potential contribution to New Zealand will be significant, and
vi whether the applicant meets all other requirements of the Humanitarian category
A letter therefore was sent in accordance with the above policy on 28th March 2006 stating the above factor to be considered a medical waiver. In response to the letter, your agency commented:
‹› that the you should be granted a medical waiver quoted that the policy said Applicants for residence in New Zealand who are assessed as not having an acceptable standard of health and whose application meet all other requirements for approval under relevant Government Residence Policy maybe considered for the grant of a Medical Waiver,
‹› that you have sufficient funds to meet the expenses for one year treatment mentioned in the letter including the three months stay of the family in New Zealand, as required by the settlement policy,
‹› that you are willing to sell all the property submitted at his end with an approximate value of two million Philippine pesos (approximately sixty thousand NZD), if needed.
Together with this comment your immigration agent has submitted the following:
-Bank statement of ChinaBank with the current amount as of 10th April 2006 showing PHP 1,477,748.69 and USD 16,022
-[ABC Company] (his employer) terminal pay computation sheet showing he will get net pay PHP 557,242 at the time of termination of service
-copy of transfer certificates of title of 4 parcel of land under the applicant's name
I have taken into consideration the surroundings of the your circumstances in line with the factors A4.65.1.
In sum, I have taken into account all the above factors and comments made by your agent and considered that you have not made a strong argument to the factors outlined in A4.65.1. The agent only provided the financial resources you have.
TOTAL POINTS ALLOCATION
For your information only, your total points allocation following our assessment is as follows:
Age: 20 points
Qualification: 50 points
Work experience: 30 points
Partner's qualification: 10 points
The total is 110 points, which meets the selection point of 100 (minimum points current at the time the Invitation to Apply was issue). Despite meeting the current selection point, you do not meet the minimum requirements of health as per policy."
[13] Section 18C(1) of the Immigration Act 1987 ("the Act") provides:
"Where a visa officer or immigration officer has refused to grant any application for a residence visa or a residence permit, being an application lodged on or after the date of commencement of the Immigration Amendment Act 1991, the applicant may appeal against that refusal to the Residence Review Board on the grounds that -
(a) The refusal was not correct in terms of the Government residence policy applicable at the time the application for the visa or permit was made; or
(b) The special circumstances of the appellant are such that an exception to that Government residence policy should be considered."
[14] The appellant appeals on both statutory grounds.
[15] The appellant is represented by his agent on appeal. The appellant has made submissions dated 30 June 2006 and has produced the following documents:
(a) An undated letter to the Board from the appellant.
(b) A medical certificate dated 15 February 2005 issued by Dr AA in respect of the appellant.
(c) A medical certificate dated 26 June 2006 issued by Dr BB in respect of the appellant.
(d) A test report validated on 1 February 2006 by the DEF Institute, Quezon City, in respect of the appellant.
(e) A test report verified on 26 February 2005 by GHI Hospital concerning the appellant's wife.
(f) A "RECORD OF OPERATION" dated 29 June 1991 and associated medical reports issued by JKL Medical Center, Quezon City, in respect of the appellant.
[16] INZ has provided the Board with the appellant's residence application file. The Board has reviewed the file and has also considered the submissions and information the appellant has provided in support of the appeal.
[17] As the appellant made the application on 15 March 2005, the relevant policy criteria are those in the Government residence policy at that time.
Government Residence Policy
[18] The only issue on appeal is whether INZ was correct to decline the application on the ground that the appellant did not meet the health requirements of the Government residence policy contained in chapter A4 of INZ's Operational Manual. That chapter prescribes a process that INZ is to follow in determining whether an applicant meets the policy's health requirements. For the purpose of this review, it is helpful to set out the relevant sections of the policy.
"A4.1 Requirement to be of an acceptable standard of health
a. Applicants for visas and permits must be of an acceptable standard of health.
b. If a visa or immigration officer is not satisfied that an applicant is of an acceptable standard of health, they must refer the matter to the NZIS consultant physician for assessment (see A4.25 - A4.40)."
"A4.20 Clearance of medical and X-ray certificates
a. Medical and X-ray certificates are vetted first by visa and immigration officers.
b. Visa and immigration officers are authorised to proceed with applications that have acceptable medical and X-ray certificates, but they are not authorised to decline applications that have unacceptable medical and X-ray certificates until they obtain a recommendation from a consultant physician."
"A4.25 Role of the consultant physicians
a. Consultant physicians are appointed to examine the standard medical and X-ray reports required in the following cases:
‹› for applicants applying for residence, or
... .
b. The consultant physician assesses an applicant's health on the basis of their NZIS medical certificates and associated reports, and may refer to any source of guidelines or advice, including the Ministry of Health. (see A4.30)
c. The consultant physician may determine that an applicant is not of an acceptable standard of health if the consultant physician considers that the applicant is:
i likely to be a danger to public health, or
ii likely to be a burden on the New Zealand health services, or
iii unfit for the purpose of entry to New Zealand."
"A4.30 Factors considered when determining acceptable standard of health
The three main areas to be considered by the consultant physician in evaluating the applicant's (and any accompanying dependants') standard of health, and whether or not they will be a burden on the health services of New Zealand, are:
‹› the condition and prognosis of the applicant
‹› the resources required for care
‹› the availability of the required resources.
In each of these areas several factors are considered, as outlined below.
A4.30.1 Condition and Prognosis
Under this heading, the following factors may be considered:
a. the disease/disability and the stage of the disease/disability, including symptoms;
b. the treatment and likely duration of symptoms;
c. the probable quality of life, and/or functioning;
d. life expectancy;
e. the likely course of disease (eg, remission periods, increasing disability over time, etc).
A4.30.5 Resources required for care
The resources required for care are likely to include the following:
a. hospitalisation/treatment;
b. the likely frequency of hospital admissions;
c. the need for immediate treatment;
d. the need for ongoing secondary/tertiary/specialist care;
e. the availability and need for ongoing medication or high cost medication;
f. ongoing management and/or treatment required;
g. support services likely to be used and frequency of use; ie:
i primary services (GP, home nursing, other health professionals, etc),
ii community health services (home help, meals on wheels, day care, forms of relief care, etc),
iii specific disability support services (appliances, residential care, etc).
A4.30.10 Availability of the required resources
Factors relating to the availability of resources needed by the applicant may include the following:
a. whether the type of condition is treated in New Zealand, or managed in New Zealand;
b. whether the hospital-based care services required are restricted to certain levels of clinical need (eg, elective surgery) or are unlikely to be supplied in New Zealand;
c. whether other treatment/investigation/management required is clinically restricted (eg, specialist-only pharmaceuticals);
d. whether any other health support services required have waiting times or are not available immediately or restricted according to clinical urgency, or there are other resource constraints."
"A4.40 Recommendation of the consultant physician
a. If the consultant physician confirms an applicant (and any accompanying dependants) as having an acceptable standard of health, the application may proceed.
b. If the consultant physician declares any person included in an application as having an unacceptable standard of health, immigration officers must not consider declining the application before they:
i advise the applicant of the medical problem, and
ii allow the applicant sufficient time to provide comment on the medical problem.
c. If appropriate, the immigration officer may refer the applicant's comments to the consultant physician before deciding whether or not to decline the application, but should be aware that the further comment by the consultant physician may itself need to be provided to the applicant for comment if it is new information and is potentially prejudicial.
Effective 26/07/1999"
"A4.55 Medical waivers
a. People not considered to be of an acceptable standard of health for residence are classified as follows:
i applicants who will not be granted a medical waiver, or
ii applicants who will not normally be granted a medical waiver, or
iii applicants who may be considered for a medical waiver.
b. Visa and immigration officers should consider any application for residence that would normally be approved but fails to meet an acceptable standard of health, against the medical waiver policy set out in this section and sections A4.60 to A4.85.
c. Applicants, (and dependants included in their application) who have claimed refugee status while in New Zealand and who have been recognised as refugees may also be granted a medical waiver.
d. Officers should seek professional medical opinion before making decisions on medical waivers (see A4.65.5).
e. Medical waivers may be considered against all categories of residence policy in which all other requirements have been met.
f. Medical waivers may be considered for seconded business personnel (see A4.80).
g. Any decision to grant a medical waiver must be made by an officer with schedule 1 delegations (see A15.5.1).
h. Officers must record decisions to approve or decline a medical waiver on the Medical Waiver form.
Effective 01/03/2000"
"A4.65 Applicants who will not normally be granted a waiver
a. Applicants will not normally be granted a medical waiver if:
i they have an infectious or communicable disease other than tuberculosis, or
ii they need surgery that is likely to create a severe resource problem within the New Zealand health system.
b. This section does not apply to:
i applicants from the Pacific whose entry to New Zealand has been approved on medical grounds so that they can receive a mitral valve replacement (Note: waivers will not be granted to nationals of countries that can supply appropriate care); or
ii people referred to New Zealand for medical treatment if ongoing treatment is not available in the home country (Note: applicants must provide evidence that the treatment is unavailable in the home country); or
iii applicants with a terminal illness if entry has been approved on humanitarian grounds to be with a close family member resident in New Zealand.
A4.65.1 Action
a. Applications covered by section A4.65 above will not automatically be declined on health grounds.
b. Visa and immigration officers must consider the surrounding circumstances to decide whether they are compelling enough to justify making an exception to the acceptable standard of health requirement.
c. Factors that officers may take into account in making their decision include but are not limited to the following:
i the objectives of the relevant residence policy or category, and
ii whether New Zealand has sufficient resources, and the degree to which the applicant would be a burden on New Zealand health services, and
iii whether the applicant has a spouse or partner who is a New Zealand citizen or resident, and
iv whether the applicant has immediate family lawfully and permanently* (see F4.1.1) resident in New Zealand, and
v whether the applicant's potential contribution to New Zealand will be significant, and
vi whether the applicant meets all other requirements of the Humanitarian category (see H2).
A4.65.5 Further medical opinions
a. To assist in determining whether a medical waiver is justified under A4.65 above, visa and immigration officers may seek a further medical opinion from the consultant physician who carried out the initial assessment.
b. Officers should refer all relevant papers to the consultant physician, together with the reasons for seeking a further opinion. If appropriate, they should ask for a prognosis and/or in light of further information received from the applicant an opinion on the extent of any likely burden on the health service if a medical waiver is granted.
c. If the consultant physician and the applicant's medical advisor(s) have provided conflicting reports, officers should seek a further medical opinion from either the medical referee or the psychiatric referee (see A4.50).
Effective 26/07/1999"
[19] As can be seen, if INZ is not satisfied that an applicant is of an acceptable standard of health, the starting point is that it must refer the application to its Consultant Physician for assessment (see A4.1). Further, the policy prescribes that INZ may not decline an application that has unacceptable medical and x-ray certificates until it has obtained a Consultant Physician's recommendation (see A4.20.b.). Where a matter is referred to the Consultant Physician, A4.25 prescribes that the Consultant Physician may determine that an applicant is not of an acceptable standard of health if he or she considers the applicant is:
(a) Likely to be a danger to public health; or
(b) Likely to be a burden on the New Zealand health services; or
(c) Unfit for the purpose of entry to New Zealand.
[20] In evaluating an applicant's standard of health, and whether he or she will be a burden on New Zealand's health services, A4.30 sets out three main areas the Consultant Physician is required to consider, as well as particular factors relating to each main area.
[21] In this case, it is not disputed that the appellant has hepatitis C, and INZ acted correctly in referring his medical certificate to the Consultant Physician for a recommendation. In doing so, INZ erred in that it asked the Consultant Physician to recommend whether the appellant was "in good health", whereas the correct measure was whether the appellant was of "an acceptable standard of health" (see A4.1.a.). On its own, however, that error was not fatal to INZ's decision.
The Consultant Physician's Assessment
[22] Of greater concern is the Consultant Physician's assessment, which was deficient in critical respects. At most, the Consultant Physician gave only cursory consideration to the appellant's condition and prognosis and the resources required for care. The Consultant Physician made no attempt to consider all the factors set out in A4.30 that are relevant to those areas, including the stage of the disease, the probable quality of life and/or functioning, the appellant's life expectancy, the likely course of the disease, the need for immediate treatment, ongoing management and/or treatment required, and the support services likely to be used and the frequency of use. Further, there is no evidence that the Consultant Physician considered the availability of resources the appellant needed, the third main area set out in A4.30.
[23] The Consultant Physician's failure to take into account all relevant factors in making his or her assessment and recommendation to INZ meant that INZ was wrong to rely on it as the basis for its decision to decline the appellant's application.
[24] The proper course INZ should have followed is to have referred the matter back to the Consultant Physician for adequate consideration in terms of A4.30. Only after it had received a complete and properly reasoned assessment from the Consultant Physician that the appellant did not have an acceptable standard of health should INZ have advised the appellant of the medical problem and sought his comment (see A4.40). It follows that INZ was premature in sending the appellant its letters of 7 July 2005 and 28 March 2006. In any event, both letters were flawed.
INZ's Letters of 7 July 2005 and 28 March 2006
[25] In its letter of 7 July 2005, INZ failed to set out, or even refer to, relevant policy provisions. Thus, while it advised that the information in its letter "[m]ay affect the outcome of your application", it did not explain adequately how that might be the case, it did not identify which medical waiver classification applied to the appellant in terms of A4.55, and it did not specifically invite the appellant to make submissions in respect of the relevant medical waiver policy.
[26] In its letter of 28 March 2006, INZ did set out the factors it would take into account in deciding whether to grant a medical waiver, but it still did not identify expressly which medical waiver classification applied to the appellant in terms of A4.55. The factors INZ listed were insufficient to do this as the same factors apply, in substance, to applicants who will not normally be granted a waiver (A4.65) and to applicants who may be considered for a waiver (A4.70, effective 1 April 2004).
Appellant's Offer to Pay for Treatment
[27] INZ failed to respond in any way to the appellant's offer to pay for the cost of treating his hepatitis C. It did not advise whether it considered his offer was relevant to its medical waiver assessment and its failure to address the issue may have induced the appellant into believing that, if he paid the treatment costs, INZ would approve his application. This is illustrated by the appellant doubling the amount he was offering to pay for treatment, in response to INZ's letter of 28 March 2006.
Medical Waiver Assessment Report
[28] There are also difficulties with aspects of INZ's reasoning in its medical waiver assessment report.
[29] First, in respect of "the objectives of the relevant residence policy or category", the first factor to be considered under A4.65.1.c, the INZ case officer recorded (verbatim):
"I have found no other relevant residence policy that will be in favourable for this application".
While somewhat difficult to understand, this conclusion suggests the case officer was considering the objectives of other residence policies, rather than the objective of the Skilled Migrant policy. If that is the case, the case officer was incorrect.
[30] Second, with respect to the factor "whether New Zealand has sufficient resources, and the degree to which the applicant would be a burden on New Zealand health service", the case officer stated (verbatim):
"I have taken the Consultant Physician's comment into account that the applicant will be burden on Health Services and also taken into account the cost the applicant will have to cover cost close to $40,000 for 12 months. 6 units: 3 weekly 3 months then 3 unites 3 weekly 6-12 months and the success rate of treatment is 50-55% which is moderate. Therefore, if the treatment has to be repeated a second time, it will cost another approximately same amount of money."
This conclusion reflects the difficulties of INZ's reliance on the Consultant Physician's cursory assessment. For example, it is not clear that a course of treatment would be repeated if it were not successful after 12 months. Although it is a matter of conjecture on the Board's part, it is possible that ongoing treatment for more than 12 months may entail consequences that militate against that. Further, if the appellant did fund his own treatment, which proved to be unsuccessful, there is no analysis of what the likely burden on New Zealand health services would be. Without that analysis, INZ cannot state that the appellant would be a burden on New Zealand health services.
[31] Third, in considering "whether the applicant's potential contribution to New Zealand will be significant", INZ concluded that the appellant's health made it doubtful that he would be able to obtain employment and contribute at his full competency. However, this finding is questionable given that the appellant had been in continuous fulltime employment since 1991, when it appears he contracted hepatitis C, and the statement in his medical certificate dated 18 February 2005, that he was asymptomatic and experiencing "no restriction as far as normal daily activities and work are concerned".
Summary
[32] As the foregoing assessment shows, INZ made a number of errors in assessing the appellant's standard of health. In particular, it based its decision to decline the application on an assessment by its Consultant Physician that failed to take into account a range of relevant factors, despite the express inclusion of those factors in the policy. The assessment was wholly inadequate and INZ erred in relying on it. In addition, INZ failed to inform the appellant fully about relevant policy provisions, it made errors in its medical waiver assessment and it should have addressed the appellant's offer to pay for his treatment.
[33] For these reasons, INZ's decision to decline the application was incorrect.
[34] This appeal is determined pursuant to section 18D(1)(e) of the Act. The Board considers INZ's decision to refuse the issue of a residence visa to the appellant was made on the basis of an incorrect assessment in terms of the applicable Government residence policy. However, the Board is not satisfied that, but for that incorrect assessment, the appellant would have been entitled to the immediate issue of a visa.
[35] The Board therefore cancels INZ's decision and refers the appellant's application back to the Secretary of Labour of the Department of Labour (whose functions for this purpose are carried out by INZ) for a correct assessment in terms of the applicable Government residence policy and in accordance with the following directions.
1. An immigration officer who has not previously been involved with this file shall reassess the appellant's application and without payment of a further filing fee. INZ is to undertake that reassessment with priority and in accordance with the applicable policy that existed at the time the residence application was made.
2. INZ is to give the appellant a reasonable opportunity to provide it with updated information about his health.
3. Then, in accordance with A4.20.b., effective 26 July 1999, INZ is to refer the appellant's medical and x-ray certificates, together with all other medical information it has about the appellant, to its Consultant Physician for assessment of the appellant's standard of health, and whether he will be a burden on New Zealand's health services. In doing so, INZ is to direct the Consultant Physician to take into account all the factors set out in A4.30.1, A4.30.5 and A4.30.10 insofar as they are relevant to the appellant's case. To avoid doubt, the Consultant Physician may also take into account other relevant factors that are not expressly referred to in A4.30.1, A4.30.5 and A4.30.10. INZ is also to direct the Consultant Physician that his or her assessment should clearly set out the factors he or she has taken into account and should come to a reasoned conclusion based on those factors.
4. INZ may only proceed to the next step, set out in A4.40, effective 26 July 1999, if it is satisfied it has a report from its Consultant Physician that complies with the requirements of A4.30, effective 26 July 1999 (see direction 3 above).
5. If, on reassessment, the appellant is not considered to be of an acceptable standard of health, then INZ is to comply with A4.40.b., effective 26 July 1999. In addition, INZ is to:
(a) provide the appellant with a copy of the Consultant Physician's assessment;
(b) advise the appellant which category of medical waiver applies to him in terms of A4.55, effective 1 March 2000;
(c) set out for the appellant the appropriate medical waiver policy in full;
(d) invite the appellant to comment specifically on the matters to be taken into consideration in a medical waiver and give the appellant a reasonable opportunity to do so.
6. When it receives the appellant's submissions, INZ is to consider and weigh all the evidence before it and record its consideration of each of the factors specified in the medical waiver policy.
7. If, in the course of the reassessment, the appellant offers to pay for the treatment of his hepatitis C, INZ is to inform him whether it will take that offer into account, and, if so, what weight it will give it.
8. INZ is to inform the appellant of its decision with clear reasons for its conclusion.
[36] The appeal is successful, but only in the above terms. The appellant must understand that the success of this appeal does not necessarily mean that his residence application will ultimately be approved.
..................................................
G Melvin
Member
Residence Review Board