Research showed people with Down Syndrome are more likely to get severely ill with Covid-19, and 10 times more likely to die compared to the general population.
The little girl was born in 2019 to parents living and working in New Zealand on essential skills work visas. Both are highly valued, excellent chefs with skills in short supply here, according to their employers.
She was not eligible for citizenship by birth because to qualify, a child born in New Zealand after 1 January 2006 must have at least one parent who is a citizen or permanent resident.
She has had several complications associated with Down Syndrome since birth. In 2020, she had open-heart surgery to repair an atrioventricular septal defect (holes between the left and right chambers of the heart), continues to require a feeding tube, has an eye condition and intellectual development issues.
Immigration New Zealand said she was not of an acceptable standard of health for her visa conditions.
"The applicant is likely to require care (including family care) substantially in excess of what is required for other children of the same age, as well as high cost medical specialist care and monitoring," INZ said in its medical assessment report.
Her doctors disagreed. Her GP said she was in good health and did not qualify for special education services until age 5 in any case. Her heart surgeon and eye specialist said she did not need medical procedures or specialist routine care at this time, and all three agreed she was not likely to be a financial burden to New Zealand health services for the next three years, the term of her visa application.
But sending the toddler back to Thailand at the peak of the Covid-19 pandemic would be "tantamount to a death sentence", her GP Dr M Mikaere said. Her heart condition put her at high risk for Covid-19, she was not eligible for vaccination at her age, and would struggle to get the necessary cardiac care in Thailand.
Deportation would also force the family to separate, her immigration adviser Mark Helsby argued. One parent would have to return to Thailand with her while the other stayed on to work in New Zealand. Both chefs had elderly parents in Thailand who were ill and unable to work because of disabilities, and relied on the couple's remittances.
Thailand's tourism and hospitality industry has been rocked by unprecedented business closures and job losses because of Covid-19, and the family's home province Hakhon Ratchasima (Korat) was one of the hardest hit by Covid-19 restrictions. The chefs' chances of finding suitable work there at this time was "virtually hopeless", Helsby said.
In her decision, Tribunal member Sharelle Aitchison said it would be unjust or unduly harsh for the child to be deported from New Zealand at this time and gave her a 12-month visa extension, the maximum the Tribunal was able to grant.
"This is to give her the opportunity to remain with her parents in New Zealand in the hope that the Covid-19 crisis in Thailand is more contained by the end of 2022. During the next 12 months, her parents will need to make decisions about her and their own futures but, in the interim, she can remain with them," her decision said.
The child could contract Covid-19 here and the cost of any necessary medical treatment was not known, Aitchison said, but extending her stay for a year was not contrary to public interest.
"Fundamentally though, there is a positive public interest in the compassionate treatment of a child whose health is at risk in the midst of the Covid-19 pandemic. There is also a positive public interest in maintaining family unity for visas as long as possible," she said.
