Residence Appeal No: 15868 [2008] NZRRB 216 (7 August 2008)

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RESIDENCE REVIEW BOARD NEW ZEALAND
AT WELLINGTON	RESIDENCE APPEAL NO: 15868
Before:	P Millar (Member)
Representative for the Appellant:	A Callaghan
Date of Decision:	7 August 2008
Category:	Family (Sibling and Adult Child)
Decision Outcome:	Section 18D(1)(e)

[1] The appellant is a citizen of the People's Republic of China, aged 34. The application for residence includes his spouse, aged 26, and their son, aged 7.

[2] This is an appeal against the decision of Immigration New Zealand (INZ) declining the application because the appellant was found not to be of an acceptable standard of health and was not granted a waiver of that requirement. The principal issue for the Board is whether INZ properly assessed those matters.

[4] In his application the appellant declared his immediate family, his parents and one sibling, a sister aged 36, who is the sponsor of this application.

[5] The appellant's sister was granted a residence permit in November 2001 under the former General Skills category of policy. She has been living in New Zealand since then and is a New Zealand citizen.

[6] The appellant's parents were granted residence permits in June 2005 under the Family (Parent) category of policy. They have lived in New Zealand since October 2004.

[7] As evidence of his relationship with his family members the appellant produced the following:

(a) Birth certificates for he and his sister, showing they have the same parents.

(b) A certificate issued by a sub-district office in China and a notarial certificate, confirming the members of the appellant's immediate family.

[8] INZ also had access to the residence application made by the appellant's sister and the appellant was declared in that application.

[9] The appellant and his wife have never been to New Zealand. The appellant's child came to New Zealand in October 2004 and remained here for approximately nine months. He returned to New Zealand in September 2006 and stayed here for a further 9 months. The child appears to have been staying with the appellant's parents.

[10] The appellant submitted an offer of employment dated 2 November 2007 by ABC Ltd, whose main business is a souvenir shop catering to tourists. The appellant was offered employment in a new division of that company focussed on the supply, manufacture, recycling and refilling of printing consumables such as printing cartridges. The appellant was offered the position of "business technician" and his primary role was to administer the business requirements of the new division and provide technical support to the other businesses operated by ABC Ltd. The appellant was offered the annual salary of $32,000.

[11] The doctor who completed the appellant's medical certificate in late July 2007 stated that there were significant or abnormal findings about the appellant's health, being that he had chronic hepatitis B. Test results for hepatitis B antigen were returned positive. The result for a liver function test was found to be abnormal and was attributed to chronic hepatitis B. In the section of the certificate dealing with urinalysis and blood tests, the doctor indicated that the appellant was taking Interferon for this condition.

[12] INZ referred the certificate to a Medical Assessor ("the MA1") who responded with a report dated 10 September 2007. In that report the MA1 completed a pro forma medical referral form which required the MA1 to indicate which of the following applied to the appellant:

(a) There is a relatively high probability that the appellant's acute medical condition(s) will require health services in New Zealand costing more than $25,000 within the next four-year period;

(b) There is a relatively high probability that the appellant's chronic recurring condition(s) will require health services in New Zealand costing more than $25,000 over the predicted course of the condition;

(b) There is a relatively high probability that the appellant's medical condition(s) will require health service(s) in New Zealand for which the current demand in New Zealand is not being met.

[13] The MA1 indicated that the appellant came within all of these categories. Where asked to comment, the MA1 stated as follows (verbatim):

Currently on anti-viral therapy, having started interferon therapy 2 weeks prior to his medical exam.

The treatment of chronic active Hep B in NZ would not entail use of interferon as a first line drug, as it is very expensive.

If alternative treatment/usual drug treatment in NZ was prescribed, costs are still high.

Treatment is usually required long term & resistance to therapy can occur, necessitating alternative, more expensive anti-viral therapy."

[14] By letter dated 17 October 2007 INZ advised the appellant of the opinion of the MA1 that he was likely to impose significant costs or demands on New Zealand's health services. INZ quoted the comments made by the MA1 in that opinion. INZ then stated that in special instances it was possible for a medical waiver to be considered and INZ set out the provisions of policy at A4.60 and A4.70.

[15] INZ stated that any further medical opinion provided by the appellant would be referred to the MA1 and if the MA1 had the same opinion, the medical evidence would be referred to a second Medical Assessor for an opinion which would be final.

[16] By email of 14 November 2007 the appellant's representative made the following submissions:

(a) Hepatitis B would only be deemed to be an Appendix 10 condition
if the surface antigen was positive and the appellant was demonstrating abnormal liver function. The appellant's representative
enclosed scanned copies of the appellant's recently conducted follow-up tests, along with a letter from a physician stating that his liver function was now normal.

(b) Even if the appellant's liver function was normal, due to the fact that he had commenced Interferon anti-viral therapy, the issue of whether or not he could potentially impose high costs or demands on health services would not automatically be assumed because Appendix 10 would not apply. Instead, an assessment would need to be made pursuant to A4.10.1 and A4.10.10.

(c) While the MA1 stated that the cost of alternative anti-viral therapy would still be high, policy required that the cost would be significant and a figure of $25,000 was used as a benchmark. It was submitted that the MA1 did not provide any evidence to suggest that costs would exceed $25,000 in total and it could not simply be assumed that the appellant would not respond to the less costly anti-viral drugs necessitating the use of more expensive ones.

(d) It was submitted that no comment had been made in respect of the condition being likely to impose significant demands on New Zealand's health services.

[17] As regards a medical waiver, it was submitted that the key aspect in the appellant's favour was that his parents and only sibling all lived permanently in New Zealand. Further, the appellant's son was very close to his grandparents and has spent time with them in New Zealand. It was submitted that INZ had to consider the implications that a decline would have on the appellant's son in light of the decision of the Court of Appeal in Tavita v the Minister of Immigration [1994] 2 NZLR 257 (CA).

[18] In addition, it was submitted the appellant had employment offered to him in New Zealand and may start his own business in the future and so potentially his contribution to New Zealand could be significant.

[19] In early December 2007 the appellant's representative provided English translations of the follow-up medical tests completed by the appellant and referred to in the submissions of 14 November. The documents are as follows:

(a) Document entitled "Referral" signed by a doctor on 5 November 2007 from the Medical Check-up Centre of a hospital in China, who stated that the appellant was a patient with chronic hepatitis B but his liver function was normal and he could work every day.

(b) Test Report issued by the same hospital in relation to tests carried out in early October 2007 for the appellant's liver function.

(c) Test Report issued by the same hospital for "6 checkings for hepatitis B", the test being carried out in early October 2007.

[20] This information was provided to the MA1 who provided a further opinion dated 19 December 2007, again stating that there was a relatively high probability that the appellant's acute or chronic recurring condition would require health services in New Zealand costing more than $25,000, and also that there was a relatively high probability that his medical condition would require health services for which the current demand in New Zealand was not being met.

The applicant was diagnosed with chronic active hepatitis B & due to significant elevation of ALT level on 15.7.2007 (& possibly previous tests with raised ALT) was started on Interferon in July 2007.

Cost of interferon are approximately $11,000 a year. The gastroenterology clinic / specialist was not given full details of the Hep B infection (eg liver scan results, HBV DNA or AFP); nor recommended length of treatment.

[22] In accordance with A4.45, INZ then sought the opinion of a second Medical Assessor ("the MA2") who provided an opinion dated 31 January 2008.

[23] The MA2 indicated in the pro forma referral form that there was a relatively high probability that the appellant's acute or chronic condition would require health services in New Zealand costing more than $25,000.

"Please note that the liver function tests being normal now make little impact on the recommendation of the MA. Liver function tests are known to fluctuate in Hepatitis B and other tests are more relevant. Liver function tests can have some use in showing treatment is helpful or in the initial instigation of treatment.

The aim of treatment is to eradicate the HBV virus replication, although this rarely happens. In most instances the best one can hope for is controlling viral replication thus hopefully stopping progressive liver damage.

In NZ treatment is with sequential monotherapy (interferon not subsidized) NB treatment with interferon is usually for 48 weeks but response may not be known for some months after this (we are looking for sustained response).

Initial treatment is lamivudine - cost - $140/month 90% of people receiving lamivudine never reach an end point for stopping treatment (i.e it is lifelong).

The problem is that lamivudine resistence is common (60% in 4 years). In this case, at present, adefovir is used - cost $670/month. (Treatment lifelong)."

[25] In the pro forma referral form where invited to comment on factors that may be relevant to the grant of a medical waiver, the MA2 stated as follows (verbatim):

[26] By email of 20 February 2008 INZ provided the opinion of the MA1 and the opinion of the MA2 to the appellant and the appellant was invited to comment on them.

[27] By email of 28 February 2008 the appellant's representative stated that although both Medical Assessors had deemed the appellant likely to impose significant costs on New Zealand health services, a medical waiver assessment still had to be made, and INZ was urged to consider the submissions made about that in the earlier email from the appellant's representative of 14 November 2007.

[28] On 17 March 2008 the INZ officer dealing with the application prepared an assessment of this issue and referred to the finding of the MA1 that the appellant was not of an acceptable standard of health and that was why a medical waiver was being considered. INZ then set out the various comments made by the MA1 and MA2 and examined the circumstances to be taken into consideration for a medical waiver as set out in policy.

[29] INZ noted the objective of Health Requirements policy, and stated that the appellant had an Appendix 10 condition and that he would impose significant costs and demands on New Zealand's health services.

[30] As to the degree to which the appellant would impose significant costs or demands on New Zealand's health services, INZ reiterated the opinions of the MA1 and the MA2. INZ stated there was a relatively high probability that the appellant's condition would require health services in New Zealand costing more than $25,000 and would require health services that were currently not being met in New Zealand.

[31] INZ noted the permanent residence of the appellant's parents and sister in New Zealand and a submission that the appellant's son was very close to his grandparents.

[32] As regards the appellant's potential contribution to New Zealand, INZ stated there was no evidence on file to indicate that this would be significant.

[33] Under the heading "Weighing and Balancing of Factors" INZ stated that the appellant would not be alone in China as he would have his wife and child with him. Again, it was stated that the appellant had an Appendix 10 condition which would require lifelong treatment and impose costs on health services in excess of $25,000 and place demands on medical services which were already "stretched". He therefore did not meet the objectives of health policy and there was nothing to indicate his potential contribution to New Zealand would be significant.

[34] For that reason the INZ officer recommended that a medical waiver be declined and the branch manager signed the assessment agreeing with that recommendation.

[35] A further assessment was prepared on 20 March 2008 signed by the INZ case officer and a technical adviser. In this assessment INZ stated that it was satisfied that the appellant's sister was able to sponsor the application, having held a residence permit for three years immediately preceding the date the application was made and having spent the requisite amount of time in New Zealand in that period. INZ was satisfied that the appellant's parents also lawfully and permanently lived in New Zealand and of the relationship between the appellant and those family members.

[36] INZ noted that as regards the appellant's offer of employment, financial information had been received from his employer and that the offer appeared to be sustainable. In addition, his salary of $32,000 would exceed the minimum income requirement for an applicant with one dependent child.

[37] As regards the appellant's health, again it was stated that the appellant had an Appendix 10 condition and INZ made the same comments about the costs and demands that he would impose on New Zealand's health services. For that reason, a medical waiver would not be granted.

[38] In its letter of 24 March 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 13 August, 2007.

We regret to advise that your application for residence in New Zealand under the Family Sibling category is not able to be approved.

We informed you in a letter dated 17 October, 2007 that your medical report had been referred to the Immigration New Zealand Medical Assessor who advised that you did not meet the health requirements.

You were given an opportunity to provide a further medical opinion and information that you would like us to consider when determining whether a medical waiver should be granted. This information was forwarded to the medical assessor who confirmed the previous decision that you did not meet the health requirements. Your medical report was then sent to another medical assessor for a second opinion and this medical assessor also stated that you did not meet the health requirements.

Your medical report has been assessed as not meeting the health requirements, a medical waiver was considered and all information on file was taken into account however a medical waiver was not granted.

As you do not meet the minimum policy requirements under the Family category, we have been unable to approve your application.

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."

"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."

[40] The appellant appeals on the ground that his special circumstances are such that an exception to the applicable Government residence policy should be considered.

[41] The representative provides submissions, dated 8 May 2008. The following documents are produced:

(a) Declaration made 7 May 2008 by AA, a consultant employed by the appellant's representative.

(i) Notebook of Medical Insurance Certificate issued in China to the appellant's father.

[42] The Board has been provided with the INZ file in relation to the appellant and has also considered the submissions and documents provided on appeal. An assessment as to whether the INZ decision to decline the appellant's application was correct in terms of the applicable Government residence policy is set out below.

[43] The application was made on 13 August 2007 and the relevant policy criteria are those in Government residence policy as at that time.

[44] Policy at F6.1 (as at 21 August 2006) sets out how siblings and adult children qualify for residence and provides as follows:

Siblings and adult children of New Zealand citizens or residents* meet Sibling and adult child policy if:

a. they have no other immediate family* who are lawfully and permanently* in the same country in which the principal applicant* is lawfully and permanently*, and

c. in each case the adult child or sibling must be sponsored by an adult sibling or parent who:

ii is a New Zealand or Australian citizen or the holder of a current residence permit that is not subject to requirements under s18A of the Immigration Act 1987, and

iii has been a New Zealand or Australian citizen and/or the holder of a residence permit or a returning resident's visa for at least three years immediately preceding the date the application under Sibling and adult child policy is made*, and

iv in each of the three 12 month portions within that three year period, has spent a total of 184 days or more in New Zealand.

d. Principal applicants* with dependent children* must show that they will meet a minimum income requirement if they come to New Zealand, which is intended to ensure they can support themselves and any dependants. The Table below sets out the gross minimum income requirement for principal applicants* with dependent children*:

Number of dependent children*	Total family income per year
1	$30,946
2	$36,493
3	$42,040
4 or more	$47,586

e. Siblings and adult children must meet health and character requirements policy (see A4 and A5).

f. From 21 August 2006, principal applicants applying under Sibling and adult child policy must be aged 55 years or younger at the time the application is lodged."

[45] INZ was satisfied the appellant met all of these requirements except that he did not meet health requirements.

[46] Policy at A4.10 (as at 28 November 2005) is relevant in this regard and provides as follows:

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:

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)."

[47] A finding appears to have been made that the appellant had a condition listed in Appendix 10, that condition being "Hepatitis B surface antigen positive, with abnormal liver function" (see Appendix 10, as at 28 November 2005).

[48] However, INZ, the MA1 and the MA2 also refer to a relatively high probability of the appellant's condition requiring health services costing $25,000 or more. That appears to be a reference to policy at A4.10.1 (as at 28 November 2005) and policy at A4.10.10 (as at 28 November 2005), which provide as follows:

"A4.10.1 Assessment of whether an applicant for residence is unlikely to impose significant costs on New Zealand's health services

a. The requirement that an applicant for residence 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 $25,000.

Note: Assessment will be in terms of current costs with no inflation adjustment.

b. 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$25,000 within a period of four years from the date the assessment against health requirements policy is made.

c. 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$25,000.

A4.10.10 Assessment of whether an applicant for residence is unlikely to impose significant demands on New Zealand's health services

The requirement that an applicant must be unlikely to impose significant demands 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 for which the current demand in New Zealand is not being met.

[49] The Board found the following aspects of the INZ assessment to be unsatisfactory.

[50] In its letter advising the appellant that the application had been declined, INZ stated that this was because the Medical Assessors found that the appellant did not meet health requirements. The letter clearly conveys the impression that the determination of whether the appellant met health requirements was not made by INZ but rather by the Medical Assessors.

[51] Policy requires that INZ determine whether or not the appellant is of an acceptable standard of health. While it may seek opinions from the Medical Assessors about that, ultimately it is for INZ to determine this issue on the totality of the evidence and submissions before it about that.

[52] In addition, INZ must act on the principles of fairness and natural justice when deciding an application and that includes giving reasons for its decision (See A1.5 as at 26 July 1999). No reasons were provided to the appellant as to why he was found not to meet health requirements beyond the statement that it was the Medical Assessors' opinion that he was not of an acceptable standard of health. While the Board acknowledges INZ did provide the appellant with the opinions of the Medical Assessors, that does not meet the requirement that INZ itself give reasons as to why the appellant was found not to be of an acceptable standard of health.

[53] That is especially so in this case where, for the reasons given below, the opinions provided by the Medical Assessors themselves are not satisfactory. INZ also did not give any reasons as to why the appellant was found not to be entitled to a medical waiver. The appellant should have been given reasons for that finding.

[54] In the first report, the MA1 stated that the appellant had a condition within Appendix 10 (Hepatitis B surface antigen positive, with abnormal liver function) and that would appear to be consistent with the information contained in the appellant's medical certificate.

[55] The appellant subsequently challenged that finding, producing a report from a physician in China according to which the appellant's liver function was normal.

[56] Although provided with that opinion, the MA1 in the report of December 2007 still stated that the appellant had a condition within Appendix 10. The MA1 did not explain why that was the case when the appellant's own doctor claimed that his liver function was normal.

[57] The MA2 did not mention specifically that the appellant had a condition within Appendix 10. The MA2 did say that liver function tests fluctuate and were not as reliable as other factors. However, the MA2 made no mention of Appendix 10 and secondly, did not discuss whether the appellant's liver function was normal within the terms of Appendix 10.

[58] In its assessment of 17 March, INZ twice stated that the "Medical Assessor" found that the appellant had a condition within Appendix 10. In its assessment of 20 March INZ stated that "the Medical Assessors" stated that the appellant had a condition within Appendix 10.

[59] INZ appears to have concluded that the appellant did have a condition within Appendix 10 and, for the reasons given, it was not able to make that finding. There was evidence before INZ that the appellant's liver function had been found to be normal and INZ needed to have an opinion from one of the Medical Assessors as to whether or not he still fell within the terms of the condition given in Appendix 10, in the light of that further medical evidence provided by the appellant.

[60] In the three reports from the two Medical Assessors, both of them have ticked the box on the referral form indicating that the appellant has either an acute or chronic medical condition that will require health services in New Zealand costing more than $25,000 within the next four-year period or over the predicted course of the chronic condition.

[61] At no stage did the Medical Assessors state precisely which of these alternatives applied to the appellant.

[62] The Board acknowledges that the appellant's doctor in his medical certificate refers to the appellant having "chronic hepatitis B" and the Medical Assessors appear to believe that lifetime treatment would be needed for this condition. That would seem to indicate that the finding was that the appellant had a chronic recurring condition requiring health services costing more than $25,000 over the predicted course of the condition.

[63] However, the Board is merely drawing that inference from the statements and evidence before it. What is required is for the Medical Assessor to specifically nominate which of those two alternatives applies to the appellant, so that INZ has a clear understanding of the timeframe within which the costs are going to be incurred to enable it to determine whether the appellant is of an acceptable standard of health. Precisely nominating which of the alternatives applies, also enables the appellant to properly respond when it is alleged that he is likely to impose significant costs on health services.

[64] The MA1 ticked the box on the referral form indicating that current demand in New Zealand was not being met for the services the appellant would require.

[65] Both Medical Assessors mentioned the need for medication but the MA2 did not claim that this was a service for which current demand was not being met.

[66] It would appear that the MA1 believed the appellant would require gastroenterology services because in the opinion of 19 December, the MA1 stated those services were already overburdened. The MA1 did not say why the appellant required those services or indeed the precise treatment comprised in the broad expression "gastroenterology services" and the frequency with which that treatment would be needed.

[67] In addition, in the report of 19 December the MA1 stated that the "gastroenterology clinic/specialist" was not given full details of the infection nor "recommended length of treatment". It is not clear to the Board what these comments are meant to refer to. The Board assumes the MA1 means that details of the infection have to be provided to a gastroenterology clinic or specialist for an opinion. If that is what the MA1 actually meant, then INZ should have asked the appellant to provide an opinion from a gastroenterology specialist, addressing the concerns of the MA1.

[68] In the report of January 2008 the MA2 made no mention of any need for gastroenterology services and so no clarification of the matter was gained from that opinion.

[69] In the assessments of 17 and 20 March INZ refer to the appellant needing medical services that were "stretched" without specifically stating what they were, but, referring to the comments of the MA1 about gastroenterology clinics being overburdened.

[70] As already stated, the reports of the MA1 do not state in any meaningful detail, precisely what services are needed by the appellant in that respect, the frequency with which he would need them and the costs of those services.

[71] In the report of 10 September the MA1 stated that first line medication treatment costs were "high". That is a very vague statement and gives INZ no indication as to precisely what the costs of that treatment are.

[72] Then the MA1 refers to treatment "usually" being long-term for which resistance "can occur", necessitating the need for more expensive treatment.

[73] Those comments mention the possibility of different outcomes from the treatment applied. Those contingencies have not been adequately explained. The Board's concerns are as follows:

(a) As to the statement that treatment is usually required long-term, INZ needed guidance as to in what cases treatment was not needed long-term and whether the appellant's condition showed any characteristics similar to those. INZ needed indication of the likelihood the appellant might be one of those cases where long-term treatment was not required.

(b) The Board has the same concern about the statement that resistance to medication can occur without a clearer indication of the likelihood of that happening and without some explanation of the factors at play where that does occur, and whether those factors are exhibited in the medical evidence about the appellant.

(c) The MA1 referred to the necessity for more expensive therapy but did not give any indication of costs of that therapy, and whether the use of that therapy might well alter the chances of the condition abating and the appellant not needing the treatment after a period of time on that medication.

[74] In the opinion of December 2007 the MA1 stated that Interferon medication cost $11,000 per year and that the appellant was started on that medication in July 2007 due to a "significant elevation of ALT level". The MA1 appears to be saying that the appellant was prescribed with Interferon (and not a cheaper medication) because of this particular reading.

[75] If that is so, then the MA1 should have specifically stated that the appellant needed Interferon (which appears to be a more effective medication) and not what would usually be administered to the appellant in the first instance. This is especially so when Interferon was significantly more expensive medication to use.

[76] The MA2 did not state that Interferon had to be used, and instead stated that the initial treatment would be Lamivudine. In this opinion, the MA2 again mentioned a number of outcomes that may eventuate from the use of this initial treatment. INZ was not given a firm indication of the likelihood of these outcomes occurring and the ramifications of that.

(a) The MA2 stated that 90% of the patients treated with Lamivudine require it for the rest of their lives but did not state what factors were at play for those who did not have to take it for that long, and whether those factors were at play in the medical evidence about the appellant so that INZ could assess the likelihood of him needing this treatment for a lifetime.

(b) The MA2 warned that resistance to Lamivudine is common, stating "60% in 4 years". The Board cannot understand what probability that comment was meant to express and thereby the likelihood of the appellant showing resistance to that medication.

(c) The MA2 stated that the more expensive treatment of Adefovir was lifelong, with no indication given as to whether this is the case for 90% of patients as it was for Lamivudine or whether there was a lower chance of that happening.

(d) The MA2 stated that the likelihood of a positive sustained response to Interferon was relatively low but that treatment was usually for 48 weeks and therefore, in theory, $11,000. If that is the total cost of using Interferon and the appellant's condition was cured, then arguably he would not be imposing significant costs on health services. INZ needed to be given some better indication about the use of Interferon and the likelihood of it curing his condition, especially when he had been taking it from July 2007 and in November his liver function was found to be normal. The Board acknowledges the comments of the MA2 that liver function tests fluctuate but that must be some indication of success with that treatment.

[78] Overall, the Board finds that the information and comments provided by the Medical Assessors about the services the appellant will need, in particular, the frequency of treatment and costs of that, have not been described in sufficient depth for INZ to be able to assess whether the appellant is likely to impose significant costs or demands on New Zealand's health services.

[79] The factors to be taken into consideration in determining whether or not to grant a medical waiver are set out in policy at A4.70.c (as at 28 November 2005):

"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;

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)."

[80] It is the assessment of 17 March that contains consideration of the various factors to be taken into consideration when determining whether or not to grant a medical waiver.

[81] INZ is required to consider the degree to which the appellant will impose significant costs or demands on New Zealand's health services. For the reasons given above, the Board finds that INZ did not have adequate comments and opinions from the Medical Assessors to be able to determine to what degree the appellant would impose significant costs or demands on health services.

[82] In addition, in the waiver assessment, INZ mentioned that the appellant had an Appendix 10 medical condition when it is not clear to the Board that that is the case and when the Medical Assessors had not properly dealt with the report submitted by the appellant on 15 November which stated that his liver function was normal.

[83] For the reasons given above, the Board finds that INZ has not properly assessed whether the appellant is of an acceptable standard of health and the decision to decline this application was incorrect.

[84] This appeal is determined pursuant to section 18D(1)(e) of the Immigration Act 1987. The Board considers the decision to refuse the visa was made on the basis of an incorrect assessment in terms of the applicable Government residence policy. However, the Board is not satisfied the appellant would, but for that incorrect assessment, have been entitled in terms of that policy to the immediate issue of a visa.

[85] 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.

[86] It should be noted that while these directions must be followed by INZ, they are not intended to be exhaustive and there may be investigations of other aspects of the application which remain to be completed or which require updating.

1. This application is to be reassessed by a different INZ officer in accordance with policy in existence at the date the application was made without payment of a further filing fee.

2. INZ shall give the appellant a reasonable opportunity to provide medical evidence about his current condition and state of health.

3. INZ shall determine whether or not the appellant is of an acceptable standard of health. In making that determination INZ shall seek the opinion of a Medical Assessor in line with policy on the basis of the medical evidence obtained by INZ to that point. INZ shall have the Medical Assessor provide a detailed and fully reasoned opinion as to the appellant's condition and whether it is a condition listed in Appendix 10. If the appellant's condition is found not to be listed in Appendix 10, then the Medical Assessor will give a fully reasoned opinion as to whether it is a condition that is likely to impose significant costs or demands on New Zealand's health services. That includes indicating whether the appellant has an acute medical condition or a chronic recurring condition, and giving precise details as to the treatment needed by the appellant, the frequency that treatment is required and its costs.

4. Any adverse opinion from the Medical Assessor will be provided to the appellant for comment.

5. If of the view that the appellant is not of an acceptable standard of health, INZ will seek the appellant's comments as to the factors to be taken into consideration in determining whether or not to grant a medical waiver. In assessing that issue, INZ will ensure that any opinion it has from a Medical Assessor about the appellant's health is sufficiently reasoned for INZ to be able to assess the degree to which the appellant is likely to impose significant costs or demands on New Zealand's health services.

New Zealand Residence Review Board

Residence Appeal No: 15868 [2008] NZRRB 216 (7 August 2008)