Finally a Good News Story
In 2018 we agreed to represent a couple in their early fifties from South Africa. Let’s call them Joe and Lucy (not their real names obviously). With to be under 56 years old to file a resident visa as skilled migrants, the clock was ticking. We had moved this couple’s daughter and grandchildren to New Zealand a few years earlier. All three adult children were by then living in New Zealand. Among all the advisers they could have chosen, this couple chose us on the back of their New Zealand based family’s advice.
Quick background. Client arrived in NZ, did all the usual stuff of trying to find skilled employment, suffering rejection along the way - no work visa, no interview, disinterest by recruiters because of visa status, HR Managers not wanting to involve themselves in visa processes, employer wariness, blah blah blah. The usual story. After a few months Lucy found a great job, well suited to her history in technical sales management. We secured her a job specific work visa. We secured Joe a partnership based work visa. He arrived and used that job to secure work with the NZ Government.
Around the time she secured her role, we filed their Expression of Interest given the clients had a prima facie claim to 160 plus points. As expected it was selected quickly and they were invited to file their resident visa application. We did so in March 2020.
Into the so called ‘managed queue’ (backlog) the application went. Then it was likely to take two years to secure residence. Our advice was unless Lucy could find a higher paying job and we could get her case transferred into the ‘priority processing queue’ she could do nothing but put her life on hold and be patient. Like so many trying to escape the 30 month wait for residence these days, Lucy went and found that better paying job. We got her a variation of conditions to her work visa to take up the new job.
So far so good. So far so normal… 18 months since we met for the first time.
In July 2020 a bombshell. Joe was diagnosed with possible colo-rectal cancer. The couple realised immediately the implications for their future in New Zealand.
Migrants are expected to have a very high standard of health to secure residence at the time the decision on their residence is made (unfairly, not when the government takes their money). The rules are pretty clear when it comes to cancer - an applicant will not be deemed to be of an ‘acceptable standard’, if the chances of them being alive 5 years after diagnosis and treatment isn’t at least 90%. Following treatment, involving pre-surgery chemo, Joe provided us with advice from his Oncologist that his odds of survival to 5 years was only between 50% and 70%. A bitter blow. I tried to delay INZ making a decision for as long as possible to allow the maximum time for Joe to start his recovery and for us to get feedback on the success of the operation. I asked them to put someone else in that queue ahead of Joe and Lucy - it would make no difference to INZ but potentially be a game changer for Joe. Any way we sliced it Joe was not, on the face of it, going to be eligible any longer. INZ would have none of it (even though they don’t mind operating a 24-month processing queue and we only filed residence in July 2020).
Immigration policy allows someone applying for residence to seek what is called a medical waiver. This basically allows an applicant to put forward the best possible evidence for allowing them to stay. As part of the medical waiver all parties recognise the health of that person is not up to scratch. It is not a box ticking exercise and is highly subjective. The arguments must be carefully presented and the evidence of a high standard.
In this case we essentially argued:
• All of Lucy’s adult family and her grandchildren live in New Zealand - she is close by in the event the family needed help and support and not 16,000km away
• Lucy has no immediate family left in South Africa
• One of Lucy’s adult children in NZ has, since he was granted residence, developed a degenerative disease - forcing his mother to leave when she can offer support to him, his partner and his children would be unreasonable and inhumane
• Lucy had a well-paying job at least twice the median average - well paying enough to get her priority processing of her residence based on (the spurious in my view) ‘value’ (according to INZ management) she represents to the economy
• Lucy and Joe were increasingly well settled and contributing to the economy
• Lucy had a level of specialist skill that INZ had recognised through the grant of her work visa which could not have been granted if INZ felt a local was being denied a job
• Over her and Joe’s remaining guaranteed working lives they’d contribute at least $450,000 in personal taxes (with Lucy the bulk of that) far outstripping any possible cost for any potential future treatment for Joe i.e. they would likely be net contributors to NZ’s tax base even if Joe needs further treatment
• The inability of the Health Ministry to quantify the cost of any future treatment that ‘may’ (according to the immigration rule book) be required. On these criteria he might need nothing or he might need a lot - such is the nature of cancer diagnosis and treatment.
That final point was the real eye opener for me and shows how asking the right questions can have such a huge impact on outcomes - his Specialist who did the operation, like so many specialists in NZ is a self employed private practitioner who works in the public system. Obviously he has his charges that the tax payers front but it was incredible to me to learn that the heath system itself could not tell him, and therefore us, what the cost of this future treatment might be. Or what the tax payers had paid for the treatment to date. A stunning and very useful revelation and any Immigration Advisers reading this should take note! In my view if INZ could not quantify the future cost that ‘might’ be required and given while Joe is on his current work visa (valid like everyone thanks to Covid, till December 2020) he is covered by the public health system anyway (that’s why if you plan on staying 12 months or more you have to do a full medical to get a work visa), then the ‘cost’ was impossible for INZ to pin down. It would not be fair in our view to deny someone residence citing possible cost if the Government itself cannot tell us what that cost was or might be.
I confess quietly I wasn’t quite so confident but in my mind I thought if the residence was declined there was a very good argument for humanitarian approval under appeal given the facts above. What bothered me was having a client with a known probability of survival in five years as low as 50% was not a great hand to play. However, given at IMMagine we had argued many medical waivers including a number of clients who had been diagnosed and treated for cancer for far less than 5 years I was not without a strong sense of conviction it was a medical waiver, that when all other factors were taken into account, should be approved.
But this is INZ we are talking about…
We were therefore excited and proud beyond words when the case was approved on 20 May. INZ accepted our arguments.
This is the part of this job I love. To present that precious resident visa to a couple we have collectively worked our butts off for three years to deliver a future in NZ to. It is these complex cases that get me out of bed in the morning and which will likely be the death of me. To deal with the curveballs so many cases throw at us and to hit them out of the ballpark is immensely satisfying. The cases where emotions run high. Lucy’s employer pressured her to take the case off us and to a big law firm when the cancer was diagnosed. She refused. Lucy wanted to stay the course with IMMagine given the faith she had in our team.
They made it. Standing atop the mountain enjoying the view. Exhausted. Relieved. Elated.
I wish them and their extended family many happy years together.
Until next week
Iain MacLeod
Southern Man
Share this post
