RESIDENCE REVIEW BOARDNEW ZEALAND |
|
AT WELLINGTON |
RESIDENCE APPEAL NO: 15825 |
Before: |
V J Vervoort (Member) |
Representative for the Appellant: |
Eduardo M Sampang |
Date of Decision: |
29 June 2008 |
Category: |
Skilled Migrant |
Decision Outcome: |
Section 18D(1)(e) |
________________________________________________________________
DECISION
________________________________________________________________
[1] The appellant is a citizen of the Republic of the Philippines, aged 37. The application for residence includes his wife, 37, and their two dependent children.
[2] Immigration New Zealand (INZ) declined the application because it did not consider the appellant had an acceptable standard of health and it did not grant him a medical waiver. The appellant appeals against that decision. The principal issue for the Board is whether INZ assessed the application correctly.
[3] By letter dated 19 January 2007 INZ invited the appellant to apply for residence under the Skilled Migrant category. The appellant tendered his application in May 2007.
[4] The appellant provided evidence as to: his identity and the identity of his family members; his and his wife's academic qualifications; his and his wife's employment histories and their English language ability. He also provided completed medical and x-ray certificates for himself and his family members and clear Philippine police certificates for himself and his wife.
[5] He claimed 115 points as follows: 25 points for his age; 50 points for his recognised qualification, a Bachelor of Science in Commerce (Major in Accounting); 30 points for more than ten years' work experience; and 10 bonus points for his wife's recognised qualification, a Bachelor of Science in Chemistry.
Health
[6] On 18 May 2007, INZ referred the appellant's medical and x-ray certificates and the reports he provided from a specialist in pulmonary medicine and a gastroenterologist respectively, concerning his history of pulmonary tuberculosis and his hepatitis condition and liver function to an INZ Medical Assessor.
First Medical Assessor's Report
[7] The Medical Assessor, in a report dated 29 May 2007, recorded that there was a relatively high probability that the appellant's chronic and acute conditions would require health services in New Zealand costing more than $25,000 over the predicted course of the condition. The Medical Assessor stated (verbatim):
"Appendix 10 condition
'Hep B sAg with abnormal Lfts'
36 year old applicant with active Hep B.
He has elevated ALT level; his serology is Hep B sAg [illegible] &e Ag [illegible] which indicates high infectivity & although his liver ultrasound shows an enlarged liver & fatty infiltration, his HBV DNA is significantly raised, indicating viral replication.
He has been recommended to start adefovir - This may be required for years & would cost approx. $8000 per year.
In NZ, we would normally start with Lamivudine, at a cost of $1840/year for the drug alone & I reserve [illegible] at adefovir for drug resistance.
He would require regular expensive lab tests & also specialist surveillance.
Gastroenterology services are already stretched.
Could re-apply after successful care, once sustained response can be demonstrated by the specialist.
If waiver considered, would need to complete clearance for Tb given abnormal LXR & history of Tb treatment in 1998."
Potentially Prejudicial Information
[8] INZ advised the appellant by letter on 7 September 2007 that it had received medical information that might be prejudicial to the approval of his application. This was that an INZ Medical Assessor expressed the opinion that he was likely to impose significant costs or demands on New Zealand's health services.
[9] The appellant was advised that he could make comment on this matter and could provide INZ with a further medical opinion or an opinion from a suitably qualified professional or any information he wished INZ to consider when determining whether to grant him a medical waiver. He was told that any further opinion provided would be referred to the Medical Assessor for further assessment. If that Medical Assessor confirmed their earlier opinion, the appellant was advised his medical certificate and any associated reports would then be referred to a second INZ Medical Assessor for their opinion. The opinion of the second Medical Assessor would be final.
[10] INZ referred to enclosing the policy at A4.60 and A4.70 in relation to medical waivers.
[11] For the sake of clarity, the INZ file showed that this letter was sent to the representative by email with two documents attached, one of which might have been the Medical Assessor's report. However, the attachments were not printed out and put on the file.
Response from the Appellant
[12] The appellant responded through his representative on 25 September 2007.
[13] Enclosed with the representative's letter was a medical certificate dated 20 September 2007 from a doctor in internal medicine and gastroenterology which stated (verbatim):
"To whom it may concern,
This is to certify that [the appellant] was seen and examined due to reactive HBsAg. History reviewed and is unremarkable. Physical [illegible] showed no stigmata of chronic liver disease such as [illegible]. Infection most likely acquired perinatally.
Blood [illegible] showed reactive HBsAg and HBeAg with non-reactive anti HBe. HBV-DNA is > 640,200,000 copies [/UL?]. Initial SGPT level is 90/66 U/L done last April 2007. Repeat SGPT done September 2007 is 58/40 U/L. Other liver [profiles?] are normal. Ultrasound showed hepatomegaly with moderate fatty liver.
Presently, he is asymptomatic.
Impression is chronic active hepatitis B.
He was advised to take either Adefovir 10mg/tab [illegible] daily for 1 yr or Peg-Interferon 180mg.SQ [illegible] a week for 6 [illegible]. SGPT, HBeAg and HBV-DNA monitoring should be done especially after 3 6 months treatment. Ultrasound of liver can be done annually.
Presently, there's no contraindication for him to travel nor work as [illegible] healthcare provider with medication.
This is issued upon request for whatever purpose it may serve him.
Thank you."
[14] Addressing the issue of a medical waiver, the representative stated that the appellant's health condition was not one of those mentioned in policy at A4.60.
[15] The representative stated the compelling reason to grant the appellant a medical waiver was that (verbatim):
"thorough, rigid, modern technology and medicine in treating [the appellant's] condition is not readily available in the Philippines. [The appellant] should not be denied of that opportunity."
[16] The representative said the appellant and his family had sufficient funds to start life in New Zealand and could shoulder all expenses in relation to his treatment. Furthermore, the appellant's and his wife's work experience and business exposure had the potential to contribute to New Zealand.
Re-Referral to First Medical Assessor
[17] On 28 September 2007, INZ re-referred the appellant's medical and x‑ray certificate together with the certificate from the appellant's gastroenterologist to the first Medical Assessor. The Medical Assessor stated (verbatim):
"Opinion remains the same as that given on 29.5.07
Appendix 10
Hep B s Ag positive with abnormal liver function tests.
Gastroenterologist has recommended anti-viral therapy; which is readily available in the Philippines."
INZ Email to the Appellant
[18] In a letter sent by email on 14 November 2007, INZ advised the appellant of the outcome of the re-referral of medical certificates and reports to the first Medical Assessor for a second opinion. He was advised that the Medical Assessor had confirmed the original opinion that he was likely to impose significant costs or demands on New Zealand's health services. He was told that his medical certificate and associated reports would now be referred to a second INZ Medical Assessor for their opinion and that the opinion of the second Medical Assessor would be final. The appellant was advised he would be told of the outcome.
[19] The email stated that a copy of the first Medical Assessor's opinion was attached.
[20] INZ concluded by stating the appellant was to advise it of any relevant facts or changes in his circumstances which might affect the outcome of his application.
Referral for Second Opinion by a Second Medical Assessor
[21] On 16 November 2007 INZ referred the appellant's medical certificate and related papers to the second Medical Assessor (acting as Medical Referee) for a second opinion. On 27 November 2007 the second Medical Assessor reported that he or she had an adverse opinion regarding the appellant's medical condition and stated (verbatim):
"Recommendation: NOT ASH
Basis for recommendation: Relatively high probability that applicant will require services costing more than $25000 over the lifetime of the condition. Appendix 10 condition.
Hepatitis B requiring antiviral treatment on the recommendation of a specialist. Specialist has recommended the use of adefovir 10mg daily, or possibly pegylated interferon.
The applicant appears to have chronic active hepatitisB
Note no liver biopsy has been performed
More than 90 % of those requiring antiviral treatment require this life long in order to prevent the possible serious complications of chronic active hepatitis.
Of those who are Hepatitis B e antigen positive ( as in this case) less than 20% will seroconvert during the first two years on lamivudine.
In NZ we use sequential monotherapy to manage this condition. Initially this would involve the antiviral medication - lamivudine. Cost is approx $140/month. The specialist recommended pegylated interferon but this is not funded for this use in NZ and is expensive ( >$25000 on its own over a 48week course) . Unfortunately with lamivudine resistence tends to occur ( 60% in 4years) - adefovir is then added to the treatment regime . The cost of adefovir is $670.00/month.
Other points to note:
Treatment is available for this condition in the Philippines
The applicant is not likely to require dialysis in the next 4-5 years - a consideration for granting a waiver , and does not have active TB ( has a history of TB in the past) .
The hepatitis B is unlikely to interfere with an ability to work although with active , highly infections Hep B there are some occupations the applicant would not be able to do.
Not regarded as a public health risk under present policy."
Medical Waiver Assessment
[22] In January 2008 an INZ officer prepared a "Medical Waiver Assessment Template". The medical waiver assessment was not provided to the appellant on the decline of the application and so, for completeness, it is set out here:
"Medical Waiver Assessment Template
[The appellant]
Relevant Policy - Skilled Migrant Category
Conclusion on Eligibility under Skilled Migrant Category Policy
Fist tier assessment:
The applicant may be awarded 115 points for:
-Age 25 (36 years old)
-Qualification 50 (Bachelor of Science in Commerce)
-Work experience 30 (Finance Controller)
-Partner qualification 10 (Bachelor of Science in Chemistry)
Verifications of qualification and work experience have not been conducted.
Second tier assessment:
A face-to-face interview is required to assess whether the applicant is able to demonstrate an ability or can realise his potential to settle in and contribute to New Zealand. However, the interview has not been conducted because the applicant may not meet the health requirements.
Reasons why a Medical Waiver is being considered under medical waiver policy
The medical report of the applicant was sent to the Medical Assessor on 18/05/2007 who stated that the applicant was not ASH. The Medical Assessor commented that the applicant has Appendix 10 condition. There is a relatively high probability that the applicant would impose significant costs and demands on New Zealand health services which are currently not being met (Tag A).
Applicant's comments and/or additional information (expert or otherwise)
The applicant was informed of the Medical Assessor's assessment and given the opportunity to comment and supply further medical information in support of his application.
This further information and the applicant's comment were referred to the medical assessor on 28/09/2007. The medical assessor remained the same opinion as that given previously (Tag B).
The medical report was then sent to another medical assessor for a second opinion on 16/11/2007 and this medical assessor also stated that the applicant was not ASH (Tag C).
The following policy applies:
A4.10 Acceptable standard of health (applicants for residence)
[Policy cited]
Consideration of applicant's surrounding circumstances
The application falls in this category:
A4.70 Determination of whether a medical waiver should be granted (residence and temporary entry)
c. Factors that officers may take into account in making their decision include, but are not limited to, the following:
i the objectives of Health requirements policy (see A4.1) and the objectives of the policy or category under which the application has been made;
The objective of Health requirements policy is to:
a. protect public health in New Zealand; and
b. ensure that people entering New Zealand do not impose excessive costs and demands on New Zealand's health and special education services; and
c. where applicable, ensure that applicants for entry to New Zealand are able to undertake the functions for which they have been granted entry.
The objective of the Skilled Migrant Category is to provide for the grant of residence to people who demonstrate that they:
· have skills to fill identified needs and opportunities in New Zealand; and
· are able to transfer those skills to New Zealand and link with local needs and opportunities; and
· are able to demonstrate an ability to contribute to New Zealand both economically and socially; and
· are able to demonstrate an ability to successfully settle in New Zealand.
The applicant does not meet the objective of the health policy as the medical assessors have stated that the applicant has an appendix 10 condition and will impose significant costs and demands on the New Zealand health services.
ii the degree to which the applicant would impose significant costs and/or demands on New Zealand's health or education services;
The medical assessor has stated that the applicant has an appendix 10 condition. There is a relatively high probability that the applicant's condition would require health services in New Zealand costing more than $25,000.
iii whether the applicant has immediate family lawfully and permanently* (see F4.5.1) resident in New Zealand and the circumstances and duration of that residence (unless the limitations on the grant of medical waivers set out at A4.60(c) apply);
No. The applicant did not declare that he has any immediate family lawfully and permanently residing in New Zealand.
iv whether the applicant's potential contribution to New Zealand will be significant;
It is unlikely that the applicant's potential contribution will be significant based on his situation.
v the length of intended stay (including whether a person proposes to enter New Zealand permanently or temporarily).
Permanently.
Recommendation:
According to the Medical Assessor's recommendation, I am of the opinion that the applicant's health condition will be a burden on health services.
In addition, there is no outstanding information or factor to consider the waiving of the medical standard in this case.
Decline recommended."
...
Decision
Medical Waiver ... Declined"
[23] In its letter of 25 January 2008, INZ set out the decision to decline the application (verbatim):
"We are writing with regard to your application for residence which was accepted for consideration on 14 May, 2007.
You will recall that you submitted medical and x-ray certificates as a part of this residence application.
We regret to advise that after careful consideration, the standard of health for pp has been assessed as not being acceptable for residence in New Zealand.
There is a relatively high probability that the applicant would impose significant costs and demands on New Zealand health services which are currently not being met. .
Your application has also been carefully considered under all of the other residence categories. On the basis of the information given in your application, however, you do not meet the requirements for any of them. Your application for residence in New Zealand is therefore regretfully declined.
We appreciate that this decision will come as a disappointment to you, but in terms of the guidelines set by the New Zealand Government for residence, it could not be otherwise."
[24] 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."
[25] The appellant appeals on the ground that the refusal to issue him a residence visa was not correct in terms of the applicable Government residence policy.
[26] The representative provides submissions dated 15 March 2008. In addition, he produces to the Board copies of INZ's email of 7 September 2007 and evidence of the response to INZ dated 25 September 2007 together with copies of the gastroenterologist's report and other documents already provided to INZ.
[27] The submissions on appeal are considered below.
[28] The Board has been provided with the INZ file in relation to the appellant and has also considered the submission provided on appeal. An assessment as to whether the INZ decision to decline the application was correct in terms of the applicable Government residence policy is set out below.
[29] The application was made on 14 May 2007 and the relevant policy criteria are those in Government residence policy as at that time.
Government Residence Policy
[30] The following provisions are of particular relevance to this appeal:
"A4.10 Acceptable standard of health (applicants for residence)
a. Applicants for residence visas and permits must have an acceptable standard of health unless they have been granted a medical waiver. An application for residence 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).
b. Applicants for residence are considered to have an acceptable standard of health if they are:
i unlikely to be a danger to public health; and
ii unlikely to impose significant costs or demands on New Zealand's health services or special education services; and
iii (unless the applicant is sponsored for residence by a person who holds refugee status in New Zealand) able to undertake the work on the basis of which they are applying for a visa or permit, or which is a requirement for the issue or grant of the visa or permit.
c. The conditions listed in Appendix 10 are considered to impose significant costs and/or demands on New Zealand's health and/or special education services. Where a visa or immigration officer is satisfied (as a result of advice from an Immigration New Zealand medical assessor) that an applicant has one of the listed conditions, that applicant will be assessed as not having an acceptable standard of health.
d. If a visa or immigration officer is not initially satisfied that an applicant for residence has an acceptable standard of health, they must refer the matter for assessment to an Immigration New Zealand medical assessor (or the Ministry of Education as appropriate).
Effective 28/11/2005"
"A4.40 Seeking comment concerning health assessments
a. In all cases, visa and immigration officers must not decline an application on the basis that an applicant does not have an acceptable standard of health, without first seeking comment from the applicant on the report provided by the Immigration New Zealand medical assessor or the Ministry of Education advising that the applicant does not meet the requirements of A4.10 (b) or A4.15 (b).
b. Where a further medical opinion on the medical condition or disability of the applicant, or a further opinion from a suitably qualified professional concerning an applicant's disability or eligibility for ORRS funding is provided and this disputes the original medical or ORRS assessment, officers must refer this to the Immigration New Zealand medical assessor (or Ministry of Education as appropriate) before deciding whether or not to decline the application.
c. Having regard to the opinion that disputes the assessment of the Immigration New Zealand medical assessor or the Ministry of Education, the Immigration New Zealand medical assessor or Ministry of Education assessor may either amend their original assessment or confirm their original assessment.
Effective 28/11/2005"
"A4.45 Second opinion assessments by Immigration New Zealand medical assessors (residence applications)
a. In the case of applications for residence, where the original assessment of an Immigration New Zealand medical assessor is confirmed by that medical assessor and a medical opinion from a medical practitioner or relevant professional which disputes the original assessment has been provided, the Immigration New Zealand medical assessor's original assessment and the further medical or professional opinion will be referred to a different Immigration New Zealand medical assessor for a second opinion. Where this occurs, it is the role of the second medical assessor, acting as a medical referee, to assess whether the applicant is:
i unlikely to be a danger to public health; or
ii unlikely to impose significant costs or demands on New Zealand's health services or education services; or
iii (unless the applicant is sponsored for residence by a person who holds refugee status in New Zealand) able to undertake the work on the basis of which they are applying for a visa or permit, or which is a requirement for the issue or grant of the visa or permit.
b. The recommendation arising from the second medical assessor's assessment is final.
Effective 28/11/2005"
"A4.60 Medical waivers (applicants for residence)
a. Applicants for residence 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 policy may be considered for the grant of a medical waiver unless:
i they require dialysis treatment, or an Immigration New Zealand medical assessor has indicated that they will require such treatment within a period of four years from the date of the medical assessment; or
ii they have active pulmonary tuberculosis; or
iii they have severe haemophilia; or
iv they have a physical incapacity that requires full time care.
b. Medical waivers will also not be granted to people:
i who are applying for residence under Family category policy; and
ii who were eligible to be included in an earlier application for residence as the spouse or partner of a principal applicant or the dependent child of a principal applicant or their spouse or partner; and
iii were not declared on that earlier application.
c. People who:
i were eligible to be included in an earlier successful application for residence as the spouse or partner of a principal applicant or the dependent child of a principal applicant or their spouse or partner; and
ii who were declared in that application but were not included in that application as non-principal applicants; and
iii whose application for residence under Family category policy is sponsored by a person included in the application for residence referred to in (i) above
will be assessed for the grant of a medical waiver as if they had been included in the earlier application and as if the sponsor was not resident in New Zealand.
d. Applicants (and dependants included in their application) who have been recognised as refugees may be granted medical waivers.
Effective 28/11/2005"
"A4.70 Determination of whether a medical waiver should be granted (residence and temporary entry)
a. Any decision to grant a medical waiver must be made by an officer with schedule 1 delegations (see A15.5.1).
b. When determining whether a medical waiver should be granted, visa and immigration officers 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.
c. Factors that officers may take into account in making their decision include, but are not limited to, the following:
i the objectives of Health requirements policy (see A4.1) and the objectives of the policy or category under which the application has been made;
ii the degree to which the applicant would impose significant costs and/or demands on New Zealand's health or education services;
iii whether the applicant has immediate family lawfully and permanently* (see F4.5.1) resident in New Zealand and the circumstances and duration of that residence (unless the limitations on the grant of medical waivers set out at A4.60(c) apply);
iv whether the applicant's potential contribution to New Zealand will be significant;
v the length of intended stay (including whether a person proposes to enter New Zealand permanently or temporarily).
d. An applicant who is the partner* or dependent child* of a New Zealand citizen or resident, may generally be granted a medical waiver unless there are specific reasons for not granting such a waiver or the limitations on the grant of medical waivers to such persons set out at A4.60 (c) apply.
e. Officers 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.
f. Officers must record decisions to approve or decline a medical waiver, and the full reasons for such a decision.
Effective 28/11/2005"
Submissions on Appeal
[31] On appeal the representative outlines two procedural errors and submits that they are the grounds on which to find the INZ decision was incorrect. The first error is that the appellant was not advised that the second Medical Assessor had confirmed the opinion of the first Medical Assessor as to the appellant's standard of health. The second error concerned the medical waiver assessment. Unfortunately, the way in which this has been expressed by the representative means the Board cannot be certain as to the representative's meaning. Either he is saying there was no medical waiver assessment and that was prejudicial to the appellant or if a medical waiver assessment was completed it was prejudicial in that it failed to consider relevant matters.
[32] The Board agrees that there were a combination of procedural flaws in the INZ assessment of the appellant's case such that the principles of fairness and natural justice were breached and so the decision to decline the application was not correct and must be set aside.
No Clear Finding on Standard of Health and Failure to Advise of Second Medical Assessor's Opinion
[33] In its two letters to the appellant before declining the application INZ failed to make clear the basis on which it considered that the appellant was not of an acceptable standard of health. The appellant had an Appendix 10 condition and so was deemed by the policy at A4.10.c to impose significant costs and/or demands on New Zealand's health services.
[34] The failure to make this clear led to confusion. INZ ought to have said to the appellant he was entitled to comment on the Medical Assessor's report, and if any further medical opinion he provided disputed the Medical Assessor's findings that he was Hepatitis B surface antigen positive, with abnormal liver function, it would be referred back to the first Medical Assessor for confirmation. The appellant should have been advised that in the absence of a disputing medical opinion as to his condition, the next step for INZ was to consider whether his circumstances justified a waiver of the requirement to be of an acceptable standard of health.
[35] The representative responded with information related to the consideration of a medical waiver and further medical evidence. It is not evident whether the medical evidence was provided to dispute the Medical Assessor's opinion or to inform the medical waiver assessment. The representative said the appellant did not require dialysis and did not have active pulmonary tuberculosis and so should be granted a medical waiver because the appellant was not barred by the policy at A4.60.
[36] The policy at A4.60.a sets out criteria for those whose medical conditions will not be eligible for a medical waiver and this includes those who require dialysis and have active pulmonary tuberculosis. Clearly the representative was confused about the policy at A4.60 and how that policy related to INZ's statements about the appellant's standard of health. This is not surprising as the relevant policy was not provided. However, the Board recognises that INZ is not responsible for the representative's misunderstanding of the policy at A4.60, but the confusion might have been avoided if INZ had cited the relevant policy on the acceptable standard of health, A4.10.
[37] Furthermore, despite saying that it would advise the appellant of the second Medical Assessor's opinion (the Medical Referee), INZ failed to do so. This was discourteous and showed a lacked of attention to the detail of the appellant's case.
Flawed Medical Waiver Assessment
[38] The medical waiver assessment was inadequate.
[39] The consideration of the factors at A4.70.c of the policy was devoid of any reasoning or analysis. The medical waiver contained a recitation of the relevant policy provisions but there was no consideration of the appellant's circumstances beyond the repetition of the fact that he had an Appendix 10 condition, and that it was considered he could not make a significant contribution to New Zealand because of his "situation".
[40] There was no consideration of the appellant's circumstances as required by policy. The policy at A4.70.b required INZ to consider whether the appellant's circumstances were compelling enough to allow entry into New Zealand. There was no such consideration.
[41] In addition, the person who signed-off the decision not to grant the medical waiver failed to provide any reasons for that decision.
[42] The Board is also concerned that INZ failed to provide the appellant with its reasons for the decline of the medical waiver.
[43] Therefore, the way in which the medical waiver assessment was done was incompetent and failed to observe the practical steps required to achieve fairness and natural justice in decision-making (see A1.15, with effect 5 June 2000).
[44] For these reasons, taken cumulatively, the Board finds that there was no proper assessment of the appellant's application. While the appellant's medical reports all indicate that he does not meet the health requirements of the applicable policy, nevertheless INZ must fairly and properly assess whether a medical waiver should be granted to him.
[45] This appeal is determined pursuant to section 18D(1)(e) of the Immigration Act 1987. The Board considers the decision to refuse a visa was made on the basis of an incorrect assessment in terms of the applicable Government residence policy. The Board is not satisfied the appellant would, but for the incorrect assessment, have been entitled in terms of that policy to the immediate issue of a visa.
[46] The Board therefore cancels the decision of INZ. The appellant's application is referred back to the Secretary of Labour for a correct assessment in terms of the applicable Government residence policy, in accordance with the directions set out below.
Directions
[47] It should be noted that while these directions must be followed by INZ they are not intended to be exhaustive and there may be other aspects of the application which require updating.
1. This application is to be reassessed by a different INZ officer in accordance with the policy in existence at the date the application was made without the payment of a further filing fee.
2. INZ is to provide the appellant with copies of the first and second Medical Assessors' reports on his medical and x-ray certificates.
3. The appellant is to be invited to provide updated information from suitably qualified medical professionals as to his health and any treatment he has undergone. If further medical information is provided, all the appellant's medical certificates and reports are to be referred to an INZ Medical Assessor. The Medical Assessor is to assess (confirm) whether the appellant suffers from the Appendix 10 condition (Hepatitis B surface antigen positive, with abnormal liver function) and/or any other medical condition and provide his or her report on the appellant's health.
4. Then INZ is to make a clear finding on the basis of the Medical Assessor's report as to the appellant's standard of health. On the basis that the appellant has an Appendix 10 condition, he is to be advised of the policy at A4.10.c and A4.40.
5. At the same time the appellant is to be provided with the policy at A4.70 as to medical waiver and be invited to provide such evidence and information as he wishes to have considered by INZ.
6. In the event the appellant provides disputing medical advice about whether he suffers from an Appendix 10 condition or other medical condition his medical certificates and reports are to be referred to the first Medical Assessor as outlined by the process in A4.40.b, A4.40.c and A4.45.a.
7. INZ is to properly conduct a medical waiver assessment in terms of the policy at A4.70 and the appellant's circumstances are to be considered and reasons are to be given for the conclusions reached. The medical waiver assessment is to be included as an attachment to INZ's final letter advising the appellant of the outcome of this reassessment.
[48] 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.
..................................................
V J Vervoort
Member
Residence Review Board