Immigration New Zealand unreasonable to rely on inaccurate and prejudicial health information when declining permit
Whether Immigration New Zealand was reasonable to decline to grant a work permit on health grounds because the applicant had active multidrug-resistant tuberculosis—Ombudsman concluded INZ policy and case law requires an applicant to be given a reasonable opportunity to comment on information which is potentially prejudicial to an application before a decision is made
The applicant entered New Zealand on a student visa and granted a number of subsequent permits to stay in New Zealand even though the INZ was aware that the applicant had tuberculosis. A DHB wrote to INZ and confirmed that the applicant was receiving treatment for multidrug-resistant tuberculosis but that one of the drugs used to treat the applicant was soon to be withdrawn and she would no longer be able to receive that drug as part of her therapy. The DHB also noted what the treatment had cost to date and costs were on-going. A copy of the DHB’s letter was not provided to the applicant who later applied for a work permit. While the case officer was satisfied the applicant met the criteria apart from having an acceptable standard of health, INZ asked her to provide her latest medical information. Medical and x-ray certificates were provided together with a report from a respiratory physician at the DHB. This information was referred to INZ’s Consultant Physician who told INZ that the applicant was not in good health and was a ‘burden on the health services’ and a ‘danger to public health’. Over two pages of handwritten comments were also provided. INZ’s case officer wrote to the applicant to ask for her comments on the Consultant Physician’s report but did not provide the applicant with copies of the information the consultant had given INZ.
The applicant’s agent complained that the decision to decline the work permit was unreasonable because: INZ failed to give the applicant sufficient opportunity to comment on the Consultant Physician’s report which contained potentially prejudicial information; the case officer did not consider the new information contained in the updated medical report from ADHB dated 18 October 2005 before he declined the application; and the case officer was not qualified to assess the medical information in the updated reports from DHB and should have referred this additional information to the Consultant Physician.
The Ombudsman formed the provisional opinion, that INZ had acted unreasonably because the advice provided by DHB and by the Consultant Physician contained potentially prejudicial information and should have been referred, in full, to the applicant for comment before a decision was made on her application; and the updated medical reports from DHB, together with written clarification of the costs of the applicant’s treatment, should have been referred to the Consultant Physician (and the applicant allowed a further opportunity to respond) before a decision was made on her application.
The Ombudsman noted that immigration policy on potentially prejudicial information explicitly requires that all applicants be informed of information that might harm their case and be given a reasonable opportunity to respond. In addition, when there are adverse comments on health issues by the Consultant Physician, policy specifically requires applicants to be advised of the medical problem and be given sufficient time to comment.
The Ombudsman commented that immigration policy reflects the requirements of well settled case law on the issue of potentially prejudicial information. She explained that the essential issue to be considered according to case law is whether information was taken into account by the decision maker that the applicant was not aware of and which the applicant might have been able to refute. If so, an opportunity to respond should be given before a decision is made.
In resolution of the complaint, the Ombudsman advised INZ it would be reasonable to make a fresh assessment of the application and for INZ to ask the Minister of Immigration to consider clarifying the policy regarding consultation with Consultant Physicians. In particular, the Ombudsman suggested that the policy should make it clear that applicants should be informed of any information provided by a Consultant Physician that might harm their case and be given a reasonable opportunity to respond. INZ agreed to undertake a fresh assessment of the application and to ask the Minister of Immigration to clarify the relevant immigration policy. The file was closed on the basis that the complaint was resolved. After reassessing the applicant’s case, INZ granted her a work permit.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.