Immigration Case Studies

Client with HIV

South Africa

New Zealand

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Migration Agent

Iain MacLeod

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Client

DC

Overview

DC was in NZ on a temporary visitor visa with her husband. She was offered a permanent role as a Nurse/Trainer at a major NZ hospital. Husband was a draftsman. She was after work and residence visas for them both. He could not be the primary applicant because he didn’t score enough ‘points’. Her points were among the top 5%. The issue was she was HIV positive (picked up at work as a nurse in South Africa) and advised us that ‘every other immigration firm has told me I wasting my time’. HIV was listed as a health condition at the time which meant residence would ‘would not normally be approved’ because of the ‘significant costs’ to the public health system. We knew the annual cost of retrovirals in NZ at the time was around $9000 per year. Not insignificant. The question to us was what were the benefits to NZ and could we persuade the Department to grant her a medical waiver?

1

Applied for a short term work visa

Immigration policy does not speak of ‘benefits’. Only ‘costs’ of people with a health condition.

We applied for a short term work visa initially which meant no immigration medical was required. That was granted. DC started work. This gave her a chance to establish ‘value’ to her employer.

The issue was, to get a residence visa, there was no escaping a full medical and the HIV had to be disclosed. This meant that we needed to secure a ‘medical waiver’ which we could only get after she was invited to apply for residence, but with HIV she could not be invited to apply. Chickens and eggs.

2

Medical waiver requested

A medical waiver allows INZ to approve an application despite costs or resource constraints in the system So we knew if could get DC invited to apply for residence, she had enough points but for the medical waiver she needed to be invited to apply. The rank and file immigration officer does not have that discretion. We approached the Minister directly – outlined the benefits – senior nurse, training NZ nurses, costs of trying to replace her, cost of training someone to get her to level of experience even if someone could be found, the occupation was on the Long Term Skills Shortage List, the combined tax these two would pay over their lifetime was significantly higher than the costs or at least neutral.

In effect a cost/benefit analysis of letting them stay over forcing them to go.

Minister agreed and directed INZ to invite her to apply for residence. We filed the residence visa.

3

Argued case with INZ doctors

INZ Doctors got hold of the application and sad no, costs too high.

The only solution was to go back to the Minister and argue INZ’s doctors (who make the recommendation to case officers) are only mandated to look at the health ‘costsnot the economic or social benefits. The Minister sought an opinion from the departmental Doctors who argued ‘Mr MacLeod makes a strong argument for the benefits of approval but we cannot offer our opinion on that. Our mandate is against costs’.

That was enough it seems for the Minister and he directed INZ to issue the invitation to apply for residence.

The Outcome

We filed.

INZ tried to decline based on costs! They did not want to grant the medical waiver.

Back to the Minister. Minister in effect told them to grant the medical waiver.

Case approved.

This case took a little under 4 years to argue and win