Charlotte Summers, a Licensed Immigration Adviser at Pathways to New Zealand, provides a detailed case study in relation to medical matters, with a focus on the changes to antiretroviral medication, appeal to the IPT, and the special circumstances of the case. She will delve further into this topic at the upcoming Immigration Law Conference on 9 June 2021.
Introduction – Residence Application lodged with Immigration New Zealand
The applicant was a US citizen, in his late forties. He was working as an independent contractor in a highly skilled position, his role commensurate with the ANZSCO classification of Painter (Visual Arts) 211411. At that time, his pay rate was $69.00 per hour (equivalent to $143,520 per annum). He had been contracting with the New Zealand company in similar positions, since his 2012 relocation to New Zealand from Argentina. Through his representative, the client lodged a Skilled Migrant Category residence visa application, in which he comfortably claimed 170 points.
The applicant was in a same-sex relationship and included in his application his husband, who was in his early 50s and to whom he had been married since 2011. The husband was an Argentinian citizen with a background as an Architect and Lecturer in Architecture. He moved to New Zealand in 2016 and was, at the time of the application, working on a major New Zealand construction project.
The anticipated issue was the fact that the applicant’s husband was HIV positive, a condition deemed to be high cost and high burden on New Zealand’s health services in INZ Instructions. INZ determined he was not of an acceptable standard of health (not ASH) and the subsequent the medical waiver request was not successful. There was limited risk to New Zealand’s public health, due to the excellent control his condition was under. The husband was diagnosed with HIV in 2009 and commenced treatment immediately. He had never displayed any symptoms. Through antiretroviral medication, he achieved an undetectable viral load of below 50 – meaning co-morbidities were very unlikely. As advised to INZ, his medical specialist foresaw no changes to this prognosis. It was also submitted during the application, to both INZ and the Medical Assessor, that the costs of the husband’s HIV medication would significantly decrease, due to what were then impending changes to the cost and supply of antiretroviral treatments in New Zealand.
From the outset of the application, it was advised to the applicant and his husband that while there were certainly grounds for a medical waiver to be granted it was not a guarantee that such request would be granted. In recognition of the risk that the medical request waiver would be declined it was important throughout the application to establish as much documentary evidence on file as possible to ensure that all possible evidence was already on file for the Immigration and Protection Tribunal (IPT) to be able to consider the correctness of decision, and to also create a firm foundation for a special circumstances argument to the IPT. It was also important throughout the process to carefully monitor how INZ undertook their assessment, to reduce the risk of an ‘incorrect decision’ on a matter of process as a successful appeal outcome resulting in a returned decision to INZ for a further medical waiver assessment would not have necessarily been the most favourable outcome.
Following the decline of the medical waiver request, and the ultimate decline of the SMC residence application, the applicant subsequently lodged an appeal against the decision with the IPT.
PHARMAC announces changes to antiretroviral medication
Subsequent to the appeal lodgement, and as had been projected in the application to INZ, PHARMAC announced that cost reductions in HIV treatments would take effect. Through a combination of price decreases in medication, subsidies and the introduction of new, generic medications, the cost of the husband’s antiretroviral medication would reduce significantly. Ultimately, the cost of his antiretroviral medication, from late 2019, reduced to approximately $1560 per year – less than 10% of the $17,000 per year cost at the time of the residence visa application.
It should be noted that the inclusion of this information about the cost of long term medication in the resident visa application was crucial as it allowed for arguments as to the correctness of the decision, as well as special circumstances.
Appeal to the IPT
On appeal, though primarily focussed on special circumstances, the principal argument on the facts was that INZ did not properly consider the appellant’s significant potential contribution to New Zealand, as per A4.70.c.iv of Instructions. The IPT did note that when making the medical waiver assessment, INZ minimised the couple’s contribution to New Zealand, particularly through their economic contribution via their professional roles.
However, despite this, the IPT found that INZ correctly referred to the husband’s condition as one which would impose significant costs and/or demands on New Zealand’s health services, and that at the time, these costs were significant. As per A4.10.2.d and A4.10.10.b of Immigration Instructions, INZ disregarded the couple’s ability to cover the cost of any treatment required, and the husband’s ability to access free treatment and care from his home country. Further, the couple had no familial nexus to New Zealand. INZ was found to have properly concluded that the burden the husband’s health condition presented on the New Zealand health system outweighed the positive factors in the medical waiver assessment.
This was the expected outcome of the IPT consideration of the correctness of the decision, however it was important to argue the minutiae to ensure the setting in full for the special circumstances arguments which were largely centred on the couple’s contribution to New Zealand.
Special Circumstances
The appellant’s husband’s health
In considering the health of the appellant’s husband for the purposes of determining whether there were special circumstances, the IPT took a number of factors into account.
The husband had been receiving medication and undertaking twice-yearly check-ups for his HIV condition in Argentina. As a citizen, all aspects of the husband’s treatment were covered by the Argentinian health system, regardless of whether he resides there. His intention was to continue to access this treatment. Further, by letter provided on appeal, the directors of the applicant’s employer, stated that they personally agreed to cover ‘any and all’ healthcare costs for the husband for the duration of his stay in New Zealand.
The IPT noted that nevertheless, the husband, if granted residence, would be entitled to access publicly-funded healthcare in New Zealand. His capacity to pay for treatment was irrelevant, and any guarantees that he will refrain from accessing New Zealand’s health services, cannot be enforced – however this evidence was important from the perspective of special circumstances to demonstrate exactly how valuable the applicant’s skills were to the employer.
A novel issue however also arose in the appeal that although the costs of medication for the husband’s HIV condition had reduced significantly, HIV remained (and still remains) a condition listed in Instructions as one deemed to impose significant costs.
The IPT also noted the fact that the husband’s HIV was under excellent control and not expected to cause any future health issues. While he would continue to require treatment and monitoring on a long-term basis, he has options as to how and where he obtains this treatment. Considered cumulatively, the IPT found that for the purposes of the special circumstances assessment, the husband’s health was not a significantly negative factor.
The couple’s contribution to New Zealand
On appeal, numerous letters of support were provided, including letters from the applicant’s high-profile employer, describing him as ‘irreplaceable’ and his contribution to the business as ‘immeasurable’. The applicant’s achievements have earned him international recognition and awards, and he is recognised worldwide as one of the best specialists in his field, such that the employer would have significant difficulty replacing someone of his skillset.
He had been progressively promoted in his role since commencing his employment. Since the time of his application, his hourly pay had increased to $73.00 and his annual income was well in excess of $150,000. He dedicated many hours of his free time to upskilling local New Zealanders in his craft. In light of the evidence, the IPT accepted that the appellant’s contribution to his employer, in a niche and highly competitive industry, was unique and significant. The skills he brought to his role allow the employer to ‘maintain its competitive edge over its international rivals’.
The husband’s contribution to New Zealand was also determined to be significant. He had 23 years’ experience in both academia and the practice of architecture. Since arriving in New Zealand, he held various temporary positions as an architectural technician/designer. Since 2017, he had been in full-time employment as an architect with an annual salary of over $100,000. A letter from the husband’s employer described him as a vital part of the company’s architecture team, and instrumental in the concept design of a large (confidential) New Zealand project. His project visualisations have received wide acclaim. Given the value of the project, in the order of $20–$30 million, it was critical that the husband continued to drive the project in the coming years. His background added significant value to the company and without his specific expertise, the company would struggle to service its current and future projects.
The IPT found that the burden to the New Zealand health system presented by the husband’s health, was outweighed by the significant contribution the applicant and his husband would make to New Zealand through their employment. The IPT acknowledged that the couple clearly fulfil the objectives of the Skilled Migrant Category: ‘holding skills to fill identified needs and opportunities in New Zealand; having transferred these skills to New Zealand; and having demonstrated the ability to contribute to and successfully settle in New Zealand.’ Their professional contribution was sufficiently uncommon so as to constitute special circumstances.
Conclusion
The client expectations from the outset were in all likelihood things would rest on the special circumstances argument on appeal to the IPT, and ultimately the Associate Minister. The management of client expectations from the outset allowed for better focussed evidence collection during the application and before the fact of either the medical waiver assessment or the appeal. This allowed for fuller arguments, and for those to be augmented in the appeal process in order to achieve the successful appeal outcome. The special circumstances argument on appeal to the IPT is a subjective one which is be determined through an objective lens, and it was important to flesh out the arguments as to why the contribution of the couple, largely through their respective employment, was meeting the high threshold required for the special circumstance test to be met. Highlighting where perhaps INZ could heave missed the mark in their weighing up for the medical waiver allowed that argument to be brought home successfully in the special circumstances arguments, and for the appeal to succeed.
Charlotte joined the Pathways team in October 2012 and is the senior adviser in their Wellington office. She has been a Licensed Immigration Adviser since October 2013, after completing her Graduate Certificate in New Zealand Immigration Advice with full A+ grades. Charlotte works on all types of visa applications, and specialises in assisting clients with complex immigration issues such as health and character waivers, Section 61 requests, deportations and residence appeals.
Charlotte is also available to Pathways clients as an Employment Relations Adviser, and as an Enrolled Barrister and Solicitor of the High Court of New Zealand she is qualified to certify and witness documents. Before joining Pathways Charlotte worked as an Immigration Officer with Immigration New Zealand. Contact Charlotte at charlotte@pathwaysnz.com or connect via LinkedIn 
