Legal and practical issues with respect to a diagnosis of autism and/or epilepsy in the context of a resident visa application
Based on the legislative framework and case law analysis, individuals with autism and epilepsy face several legal challenges when applying for New Zealand resident visas. The primary legal hurdle is meeting the "acceptable standard of health" requirement under immigration instructions.
Autism spectrum disorder typically requires ongoing specialist care, behavioural therapy, and often special education services. Similarly, epilepsy usually necessitates continuous medical monitoring, medication, and potentially neurological interventions. These ongoing healthcare needs may be assessed as imposing "significant costs and demands on New Zealand's health and special education services," as outlined in Matua v Minister of Immigration [2018] NZHC 2078.
The discretionary power of immigration officers to require medical examinations (Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010) means that individuals with these conditions will likely face additional scrutiny. They may need to undergo detailed medical assessments to determine the severity and likely impact of their conditions.
When an individual is assessed as not meeting the acceptable health standard, their visa application must be declined unless they are granted a medical waiver. This creates an additional procedural hurdle that applicants with autism and epilepsy must navigate.
Practical Challenges in Documentation and Assessment
From a practical perspective, individuals with autism and epilepsy face several challenges in the visa application process:
Comprehensive medical documentation: Applicants need to provide detailed medical reports from specialists documenting their diagnosis, treatment plan, prognosis, and estimated healthcare needs. This may involve multiple specialist appointments and assessments.
Cost estimation: The immigration authorities will assess the potential cost to New Zealand's health and special education services. Applicants may need to provide evidence that their condition will not impose "excessive" costs, which requires detailed knowledge of New Zealand's healthcare system and cost structures.
Variable manifestations: Both autism and epilepsy exist on spectrums with highly variable manifestations. Individuals with mild forms of these conditions who are well-managed with minimal intervention may face different assessments than those with more severe manifestations requiring intensive support.
Changing health needs: The healthcare needs of individuals with these conditions may change over time, creating uncertainty in long-term cost projections.
Family applications: As seen in Matua v Minister of Immigration [2018] NZHC 2078, if any person included in the application is assessed as not having an acceptable standard of health, the entire application may be declined. This means that a child with autism or epilepsy could affect the visa prospects of the entire family.
Seeking a Medical Waiver
For individuals who do not meet the acceptable health standard, seeking a medical waiver becomes crucial. The case law suggests that humanitarian considerations play a significant role in waiver decisions.
BR (Bangladesh) v IPT & MBIE [2018] NZHC 234, identifies several factors that may support a medical waiver application:
Improvement in the individual's condition due to healthcare received in New Zealand
Potential deterioration of health if returned to their home country
Limited access to appropriate healthcare in their home country
Social stigma or discrimination faced in their home country due to their condition
Practically, this means applicants need to gather substantial medical evidence not only about their condition but also comparative evidence about healthcare quality and social attitudes in their home country versus New Zealand.
The discretionary nature of medical waivers suggests that decisions are made on a case-by-case basis, taking into account the specific circumstances of each applicant. This means that outcomes may vary significantly depending on the particular facts of each case, including:
The severity and specific manifestation of autism or epilepsy
The projected healthcare costs based on the individual's specific needs
The strength of humanitarian considerations in the particular case
The immigration category under which the application is made
This variability creates both challenges and opportunities for applicants. While it means there is no guaranteed outcome, it also allows for consideration of unique circumstances that might support a successful application.
Navigating Humanitarian Appeals
Similar to medical waivers, a humanitarian appeal to the IPT may consider similar factors. BR (Bangladesh) v IPT & MBIE [2018] NZHC 234 demonstrates that humanitarian appeals are an important avenue for individuals with autism and epilepsy who face deportation or visa refusal.
Practical considerations for such appeals include:
Comparative healthcare analysis: Applicants need to provide evidence comparing the healthcare available in New Zealand versus their home country, particularly for autism and epilepsy.
Documentation of improvement: Evidence showing improvement in the individual's condition while in New Zealand can strengthen humanitarian appeals.
Social and cultural factors: Evidence of social stigma, discrimination, or lack of acceptance of individuals with autism or epilepsy in the home country may be relevant.
Family ties and support networks: The presence of family and support networks in New Zealand versus the home country may be considered.
Integration and establishment: Evidence of the individual's integration into New Zealand society, such as educational progress, community involvement, or employment (for adults), may support humanitarian appeals.
You should contact one of Young Hunter’s experienced deportation and immigration appeal lawyers as soon as possible. Our lawyers can help you understand your rights and guide you through the appeal process.
