Claimant's Second Resident Visa Application Rejected

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207447 RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: [redacted]

Respondent: [redacted] Ministry of Business, Innovation and Employment

Before: [NAME] (Member)

Counsel for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 4 May 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 50-[NAME]-old citizen of the United Kingdom (UK) whose application for a second or subsequent [NAME] [NAME] ([APPELLANT]) was declined by Immigration New Zealand. The application included his [NAME] and their two [NAME], aged 22 and 25, all citizens of the UK. THE ISSUE [2] Immigration New Zealand declined the [NAME] application for an [APPELLANT] because he had not demonstrated that he met the requirements to be granted an [APPELLANT]. [3] The [NAME] issues for the Tribunal are whether Immigration New Zealand was correct to decide that the appellant did not meet the requirements of instructions to be granted a PRV or an [APPELLANT], and, if so, whether the appellant has special circumstances such that would warrant a recommendation that the Minister of Immigration consider an exception to government residence instructions.

2 [4] For the reasons that follow, the Tribunal finds that Immigration New Zealand correctly declined the application and that the appellant does not have special circumstances such as to warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions.

BACKGROUND Immigration Background, Including Grant of Residence [5] The appellant and his wife have four children, a [NAME], a 27-[NAME]-old daughter, and [NAME], aged 22 and 25. [6] The appellant, his wife and three [NAME] first came to New Zealand in 2008 as the holders of temporary visas. The appellant held essential skills work visas as well as a work [NAME] under the Work to Residence (Talent — Accredited Employer) category to work in the [NAME]. His wife also held essential skills work visas and worked in managerial roles with [NAME] and other organisations. The [NAME] held student visas as dependent children of the appellant. The [NAME] son came to New Zealand in 2009 and held temporary visas separately from the appellant and the other family members (he was not deemed to be a dependent child). The appellant and his family members departed from New Zealand for brief periods in 2014, 2015 and 2016. [7] The appellant made his application for residence under the Residence from Work (Long Term Skill Shortage List) category in October 2014. In June 2015, the [NAME] application for residence was declined as he had not held the required work [NAME] to apply under that category. He otherwise met the relevant instructions. A subsequent appeal to the Tribunal was made in July 2015 but withdrawn in October 2015 after the appellant and his family (his wife and three [NAME]) were granted residence as an exception to instructions by a [NAME]. The [NAME] son was granted residence under the [NAME] in March 2017 and permanent residence in July 2019. [8] On 25 January 2018, the appellant, his wife and three [NAME] departed New Zealand for the UK. The [NAME] returned to New Zealand on two occasions in 2018 and three occasions in 2019 as the [NAME] of a visitor [NAME]. The appellant did not return until November 2023, when he and his wife returned for a three-week visit as the holders of visitor visas.

3 [9] In June 2023, the appellant lodged an expression of interest in the ballot for the [NAME], which was not drawn from the pool and expired in June 2025. In December 2023, the appellant requested ministerial intervention, but this request was declined in May 2024. [10] On 1 April 2025, the appellant, his wife and [NAME] returned to New Zealand. The [NAME] has not returned. The appellant and his wife were the holders of visitor visas, initially valid until 1 October 2025 and later extended to 1 January 2026. Their two [NAME] hold UK working holiday visas valid until 1 April 2028. Application for an [APPELLANT] [11] On 23 April 2025, the appellant made an application for a grant of an [APPELLANT]. His wife and their [NAME] were included in his application. [12] On 6 May 2025, Immigration New Zealand advised the appellant of its concerns with his application. It explained that instructions at RV4.10.a.ii provided that an [NAME] for an [APPELLANT] may be granted that [NAME] if they would have met the criteria to be granted a permanent [NAME] [NAME] had they applied for it on the date that their [NAME] [NAME] expired, and that date was less than 24 months before the date that the application for an [APPELLANT] was made. It appeared that the appellant did not meet that instruction. His [NAME] [NAME] had expired on 25 January 2018, which was more than 24 months before the date of the application for the [APPELLANT]. [13] In response on 7 May 2025, the appellant explained that he had not been aware that his [NAME] [NAME] had travel conditions. It had been granted by a [NAME] as an exception to immigration policy at the time. He acknowledged that on his file there was a letter from Immigration New Zealand advising him of the conditions of his [NAME] [NAME], but he could not recall receiving this and had assumed that there were no travel conditions with his [NAME]. He and his family members had returned to the UK in 2018 to care for [NAME] and had not been able to return because of the COVID-19 pandemic and their three children being in their last years of schooling in the UK. Immigration New Zealand’s Decision [14] On 30 May 2025, Immigration New Zealand declined the [NAME] application for an [APPELLANT] because he had not demonstrated that he met the requirements at RV4.10.a.ii to be granted an [APPELLANT].

4 [15] The appellant and his wife departed New Zealand on 30 December 2025 and have not returned. The [NAME] remain in New Zealand with valid work visas. STATUTORY GROUNDS [16] The [NAME] right of appeal arises from section 187(1) of the Immigration Act 2009 (the Act). Section 187(4) of the Act provides: (4) The grounds for an appeal under this section are that— (a) the relevant decision was not correct in terms of the residence instructions applicable at the time the relevant application for the [NAME] was made; or (b) the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended. [17] The residence instructions referred to in section 187(4) are the Government residence instructions contained in Immigration New Zealand’s Operational Manual; see www.immigration.govt.nz. THE [NAME] [18] On 26 June 2025, the appellant lodged this appeal on both grounds in section 187(4) of the Act. [19] Counsel makes submissions (26 June 2025) on appeal and, as well as documents already on the Immigration New Zealand file, provides the following documents in support of the [NAME] appeal: (a) statements (June 2025) from the appellant, his wife and their [NAME], along with copies of their passports and the [NAME]’ work [NAME] details; (b) letters (June 2025) of support for the appellant and his family from their son and the son’s wife, and two of the wife’s work colleagues; (c) information relating to the deaths of the [NAME] father and his wife’s mother in the UK;

5 (d) copies of correspondence (November 2023 to May 2024) relating to the [NAME] request to the Minister of Immigration for ministerial intervention; (e) the wife’s curriculum vitae and two contracts for services as an independent contractor (March 2023 and January 2024) for her; and (f) a contract of sale (unsigned, undated) relating to the sale of the appellant and his wife’s property in the UK. [20] In response to the Tribunal’s request for updated information, given that Immigration New Zealand records indicated that the appellant and his wife had departed New Zealand on 30 December 2025, counsel also provided a statement (23 March 2026) from the appellant and his wife explaining their present circumstances. [21] The Tribunal’s ability to consider this new evidence on appeal is constrained by section 189(1) of the Act. The Tribunal finds that it is unable to consider the [NAME] new evidence when assessing the correctness of Immigration New Zealand’s decision. This is because this evidence either did not exist at the time of Immigration New Zealand’s decision, or if it did, it was not relevant to the decision (section 189(3)(a)(i)). [22] However, the new evidence provided on appeal relevant to special circumstances is admissible pursuant to section 189(3)(b) of the Act, and is considered by the Tribunal in that discussion, below at [63]. ASSESSMENT [23] The Tribunal has considered the submissions and documents provided on appeal, the file provided by Immigration New Zealand in relation to the [NAME] [APPELLANT] application and the ministerial file relating to the initial grant of residence to him, and Immigration New Zealand’s relevant electronic records for him and his family members. [24] An assessment as to whether the Immigration New Zealand decision to decline the [NAME] application was correct in terms of the applicable residence instructions is set out below. This is followed by an assessment of whether the appellant has special circumstances that warrant consideration of an exception by the Minister of Immigration.

6 Whether the Decision is Correct [25] The application was made on 23 April 2025 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because the appellant had not demonstrated that he met the requirements at RV4.10.a.ii (effective 11 April 2016) to be granted an [APPELLANT]. Process by which the appellant was granted residence [26] In June 2015, the [NAME] application for residence under the Residence from Work (Long Term Skill Shortage List) category was declined as he had not held the required work [NAME] to apply under that category. He otherwise met the relevant instructions. [27] Immigration New Zealand records indicate that on 10 July 2015, a complaint was lodged under its Client Complaints Resolution Process following the receipt of a letter (9 July 2015) from the [NAME] that related to advice Immigration New Zealand had previously provided to her and the appellant. This complaint was referred to an Immigration [NAME] manager. [28] Immigration New Zealand’s records indicate that, on 14 August 2015, the [NAME] manager referred the [NAME] and his family’s case to a [NAME] for consideration of whether residence should be granted as an exception. This referral is described in Immigration New Zealand’s application management system (AMS) records as a “Resolutions, Ministerial, Departmental Decision [NAME]”. [NAME] considered the case note presented by the [NAME] manager and signed it on 21 August 2015. Later that day, the [NAME] manager was advised by email from another member of staff that [NAME] had noted the appellant and his family’s circumstances and had granted them residence as an exception to instructions. The decision is recorded as “Residence Exception” on 21 August 2015 in Immigration New Zealand’s AMS records. [29] On 25 August 2015, the [NAME] manager emailed the [NAME] in response to her complaint of 9 July 2015. The [NAME] manager apologised for the situation that had arisen. The [NAME] manager advised that “under [NAME] authority from the Minister of Immigration, a [NAME] within the Ministry has approved residence class visas as an exception to policy” for the appellant, his wife and their [NAME]. The family were advised to submit their

7 passports to the local Immigration New Zealand office so that the “appropriate visas” could be put in them. [30] Immigration New Zealand AMS records indicate that the family’s passports were presented to Immigration New Zealand on 1 September 2015. [31] On 3 September 2015, a paperless “application” was created in Immigration New Zealand’s AMS records, recorded as “Application Type: [NAME], [NAME], Ministerial direction”, which appears to have been the necessary entry and record of [NAME]’s decision to grant the visas. [32] Immigration New Zealand’s AMS records indicate that the visas were issued with a start date of 7 September 2015 and an “expiry date travel” of 7 September 2017. The [NAME] label specified: [NAME] is invalid if [NAME] is outside NZ with expired travel conditions. Please apply for transfer of this [NAME] when the passport expires. [33] On 7 September 2015, the family’s passports, Immigration New Zealand’s “guide for residents” and the final approval letter (dated 7 September 2015) were sent by tracked post to the family. The final approval letter recorded that: … Your [NAME] [NAME] and travel conditions We have granted you [NAME] [NAME] with travel conditions. Your [NAME] allows you to live, work, and study in New Zealand. It will not expire while you remain in New Zealand. Your travel conditions allow you to travel outside New Zealand and be granted re-entry into New Zealand as [NAME] when you return. They are valid until 07 September 2017. This is shown on the ‘expiry date travel’ line, which appears at the top right-hand side of the [NAME] label in your passport. Expiry of your [NAME] [NAME] note that your [NAME] [NAME] will expire if you leave New Zealand and you do not have valid travel conditions that allow you to return as [NAME]. If you are travelling outside of New Zealand and plan to return after your [NAME] travel conditions expire, you will need to apply for a variation of travel conditions, or a permanent [NAME] [NAME]. … [34] On 7 November 2016, the appellant made an application to transfer his [NAME] [NAME] into a new passport. Immigration New Zealand AMS records indicate that a replacement [NAME] [NAME] was placed into his new passport, specifying travel conditions expiring on 7 September 2017. The [NAME] passport was returned to the appellant, with an information sheet, by tracked post on 11 November 2016.

8 Submissions on appeal [35] On appeal, counsel argues that Immigration New Zealand was incorrect to decline the [NAME] application. [COUNSEL] submits that the appellant and his family members were either granted residence on 21 August 2015, when it is noted on Immigration New Zealand AMS records that the application was “finalised” after the decision from [NAME]; or they were granted residence on 25 August 2015, when the Immigration [NAME] manager wrote to them to advise that [NAME] had granted them residence as an exception to policy. On neither of these occasions was any reference to travel conditions made. [COUNSEL] submits that, under section 62 of the Act, the travel conditions had to be included when the [NAME] was granted, and, because they were not specified in Immigration New Zealand’s records on 21 August 2015 or the letter on 25 August 2015, the appellant and his family were granted [NAME] visas with no travel conditions and for an indefinite period as per section 74 of the Act. [36] [COUNSEL] submits that the family were then issued with their [NAME] visas on 7 September 2015, which counsel asserts was simply an administrative step to implement the grant of residence and is the date on which the visas became effective (rather than the date that the visas were granted). While it is clear from Immigration New Zealand’s letter of that date that travel conditions were included, counsel asserts that this appears to have happened automatically, rather than being directed by [NAME] when the visas were granted. The travel conditions referred to in that letter were therefore not valid. [37] Counsel explains that, if the appellant and his family members were granted [NAME] visas without travel conditions, then their [NAME] visas have not expired. In that case, Immigration New Zealand should have requested further information from the appellant to help it consider whether he met any of the requirements of a different category (such as an application for permanent residence). Counsel argues that for this reason, Immigration New Zealand’s decision was incorrect. Requirements under the Act and in instructions relating to the grant of a [NAME] [38] There are a number of provisions under the Act that are relevant. Section 45 of the Act provides the Minister (or an immigration officer under special direction) with a discretion to grant or refuse visas, and to impose conditions on the [NAME] granted or to vary or waive conditions that would otherwise apply to a [NAME]. Section 50 of the Act sets out in more detail how, on granting [NAME] [NAME]

9 as an exception to instructions, the Minister may impose conditions in addition to those specified in the applicable [NAME] instructions or vary or waive conditions that would otherwise apply to a [NAME] of that type. Section 72(3) includes a power for the Minister to make a decision to grant a residence class [NAME] as an exception to residence instructions. Section 380 sets out the ability for the Minister to delegate their discretion to a [NAME]. [39] The ministerial discretion (and associated discretion of a [NAME]) is also set out in instructions. A15.15 (effective 21 January 2024) sets out the powers exercised by a [NAME], including the power to grant [NAME] [NAME], and impose further conditions or vary or cancel conditions as per section 50; and the power to grant [NAME] [NAME] as an exception to instructions under section 72(3). [40] Section 62 of the Act clarifies the form by which a [NAME] is granted and how details and conditions of visas are to be recorded: 62 Form of [NAME] (1) A [NAME] is granted by being entered and retained in the records (whether electronic or physical) of the Department in a manner determined by the chief executive. (2) The entry for the [NAME] must specify, as appropriate,— (a) its start date (which may be the date of its grant or a future or past date): (b) any conditions of the [NAME] that relate to travel, including— (i) whether the [NAME] allows travel to New Zealand on a later occasion: (ii) if the [NAME] allows travel to New Zealand, the period during which the [NAME] may travel to New Zealand: (iii) if the [NAME] allows travel to New Zealand, whether the [NAME] gives permission to travel to New Zealand on a single journey, multiple journeys, or a set number of journeys: (c) in relation to the [NAME]’s stay in New Zealand, the date or event on the occurrence of which the [NAME] will expire, or the period after which it will expire: (d) any other conditions of the [NAME]: (e) for those persons granted entry permission, the date or dates the entry permission was granted: (f) such other matters as may be required or approved by the chief executive. (3) A [NAME] may (but need not) be evidenced by an endorsement in a passport or certificate of identity.

10 (4) To avoid doubt, no electronic or physical record is required to be created for a [NAME] that is deemed to be granted by or under this Act. [41] Section 63 provides that if the [NAME] of a [NAME] is outside New Zealand, a [NAME] expires on the earlier of the day and time the [NAME] left New Zealand, if the conditions of the [NAME] do not allow further travel to New Zealand; or the beginning of the day after the date that is specified by the conditions of the [NAME] as the last day of the period of time within which travel is allowed to New Zealand. [42] Instruction R5.66 (effective 30 July 2012) sets out the details of travel conditions, which may apply to all [NAME] visas and the currency of which are determined by the relevant residence category. [43] Instruction R5.66.5 sets out the requirements regarding travel conditions, including that most [NAME] visas may be granted with travel conditions for two years (from the [NAME]’s first day in New Zealand as [NAME]) (R5.66.5.a). It also makes clear the requirement to apply for a variation of travel conditions if a [NAME] wishes to travel to New Zealand outside the validity of their travel conditions and does not qualify for permanent [NAME] [NAME] (R5.66.5.d). Application to the [NAME] case [44] As set out above, the [NAME] 2014 application for [NAME] [NAME] was declined because he did not meet the relevant residence instructions of the category under which he applied. His and his family’s [NAME] visas were ultimately granted as a result of a decision by a [NAME] that an exception to those residence instructions was warranted in their case. [NAME] had the discretion conferred by sections 45, 50, 72(3) and 380 of the Act to grant [NAME] [NAME] as an exception to instructions. [45] The Tribunal has no hesitation in finding that the [NAME] manager’s email of 25 August 2015 responding to the [NAME]’s complaint and advising of [NAME]’s decision did not constitute a grant of residence. The [NAME] manager did not have the [NAME] powers under A15.15 to grant residence as an exception to instructions and the email was an administrative courtesy only. [46] The physical copy of the case note that appears on Immigration New Zealand’s files, which was signed by [NAME] on 21 August 2015, records only that [NAME] “noted” the circumstances of the appellant and his family, including that, without an exception to instructions, any application for residence by the appellant under the Residence

11 from Work instructions would be declined. It does not include any express language (beyond “noted”) that [NAME] granted residence to the appellant and his family, although the decision to do so is recorded in the emails from other staff members attached to the case note on the physical file. However, Immigration New Zealand’s AMS records indicate that on 21 August 2015, “residence exception” was entered as the decision for the entry: “Resolutions, Ministerial, Departmental Decision [NAME]”. Given this recording of the decision to grant the appellant and his family residence as an exception to instructions into the records, the Tribunal finds that 21 August 2015 must be taken as the date residence was granted by [NAME] according to the discretion provided in the Act. [47] The “residence exception” entry in the AMS records does not record any conditions that were imposed or waived in relation to the [NAME] and his family’s [NAME] [NAME]. However, the Tribunal does not accept that there were no travel conditions attached to the [NAME] and his family’s [NAME] visas when granted by [NAME]. [48] Section 50(1) of the Act gives a [NAME] discretion to impose conditions in addition to those specified in the applicable residence instructions (section 50(1)(a)); or to vary or waive conditions that would otherwise apply to a [NAME] of that type (section 50(1)(b)). Therefore, the default position would appear to be that there are standard travel conditions as specified in residence instructions that are normally applicable, unless specifically added to, varied or waived by [NAME]. [49] There is no indication on the Immigration New Zealand records that [NAME] imposed any additional conditions on the appellant and his family’s [NAME] visas other than those that were specified in R5.66.5.a, namely that the travel conditions were valid for two years. Similarly, there is no indication on the Immigration New Zealand records that [NAME] varied or waived the conditions on the appellant and his family’s [NAME] visas other than those that were specified in R5.66.5.a as applicable to the [NAME] [NAME] category under which the appellant initially applied and to which an exception was considered justified. There are no reasons identified as to why [NAME], in granting the family residence, would have chosen to depart from the travel conditions that would normally apply to [NAME] visas granted under the Residence from Work category, as per R5.66.5.a.

12 [50] The Tribunal finds that the appellant and his family’s [NAME] visas were granted with the standard two-[NAME] travel conditions as specified in their visas and pursuant to R5.66.5.a. The travel conditions recorded on the [NAME] [NAME] [NAME] label were for two years from the date on which his [NAME] [NAME] was valid, namely from 7 September 2015. These reflect the travel conditions that would have applied to his [NAME] [NAME] had it been granted under the category under which he made his application. [51] More crucially, the Tribunal does not accept that the appellant and his family were unaware of their travel conditions. Immigration New Zealand records indicated that on 7 September 2015, the family’s five passports, along with a “final approval letter” and a copy of a guide for residents was sent by tracked mail to the [NAME]. That final approval letter (7 September 2015) advised the appellant and his family that his application for a [NAME] [NAME] had been approved and that he (and his family members) had been granted [NAME] [NAME] with travel conditions. The operation of the travel conditions was explained, it was recorded that the travel conditions were valid until 7 September 2017, and it was explained where those travel conditions were recorded on the [NAME] labels. In addition, the appellant was advised of the same travel conditions on a second occasion, when a replacement [NAME] [NAME] label was placed into his new passport in November 2016. The family’s [NAME] visas then expired when they left New Zealand in January 2018 without valid travel conditions to return to New Zealand (as per section 63 and R5.66.5.d). [52] The Tribunal now turns to consider whether Immigration New Zealand’s decision to decline the [NAME] application for an [APPELLANT] was correct. Eligibility for an [APPELLANT] [53] Under immigration instructions, the [NAME] of [NAME] [NAME] is entitled to remain in New Zealand indefinitely (RV1.5.a, effective 7 November 2011). However, the [NAME] [NAME] expires if the [NAME] leaves New Zealand with no valid travel conditions or the travel conditions expire while the [NAME] is outside New Zealand (RV1.5.b). Depending on the circumstances, [NAME] [NAME] can apply for a permanent [NAME] [NAME], apply to vary travel conditions of the [NAME] [NAME] or (where the [NAME] [NAME] has expired) apply for an [APPELLANT] (RV1.5.c). [54] The Tribunal’s jurisdiction in the [NAME] case is limited to considering whether the decision to decline his application for [NAME] [NAME] on the basis that

13 he did not meet the requirements of instructions for the grant of an [APPELLANT] was correct. Immigration instruction RV4.5 (effective 29 November 2010) provides that [NAME] may apply for an [APPELLANT] if [NAME] [NAME] has expired: RV4.5 Who may apply for a second or subsequent [NAME] [NAME]? [NAME] may apply for a second or subsequent [NAME] [NAME] if they have held, or been deemed to hold, [NAME] [NAME] that has expired because the [NAME] either: a. left New Zealand after the expiry of the travel conditions; or b. are outside of New Zealand when the travel conditions expired. [55] The appellant made his application on 23 April 2025. His [NAME] [NAME] travel conditions had been valid until 7 September 2017. He left New Zealand on 25 January 2018 after the travel conditions expired (RV4.5.a). [56] Pursuant to RV4.10 (effective 11 April 2016), an [APPELLANT] may be granted if the appellant meets criteria as to a variation of travel conditions (VOTC) (RV4.10.a.i), a permanent [NAME] [NAME] (RV4.10.a.ii) or other special provisions (RV4.10.a.iii): RV4.10 Determining an application for a second or subsequent [NAME] [NAME] a. An [NAME] for a second or subsequent [NAME] [NAME] may be granted a second or subsequent [NAME] [NAME] if: i. the [NAME[NAME] would have met the criteria to be granted a variation of travel conditions under RV3.5, RV3.10 or RV3.15 had they applied for it on the date the [NAME]’s [NAME] [NAME] expired and those travel conditions would still be valid on the date the application for a second or subsequent [NAME] [NAME] was made; or ii. the [NAME[NAME] would have met the criteria to be granted a permanent [NAME] [NAME] had they applied for it on the date the [NAME]’s [NAME] [NAME] expired and that date was less than 24 months before the date the application for a second or subsequent [NAME] [NAME] is made; or iii. the [NAME[NAME] meets the criteria for one of the special provisions for a second or subsequent [NAME] [NAME] (RV4.20). — Variation of travel conditions: RV4.10.a.i [57] RV4.10.a.i refers to the criteria for VOTC in RV3.5, RV3.10 or RV3.15 (all effective 29 November 2010), which relevantly provide that (emphasis in the original): RV3.5 12-month variation of travel conditions [NAME] may be granted with travel conditions [NAME] for 12 months if:

14 a. they meet the requirements set out in either RV3.5.1 or RV3.5.5 below; and … RV3.5.1 Time spent in New Zealand To meet the requirements regarding time spent in New Zealand, the [NAME[NAME] must have been in New Zealand as [NAME] for a total of 184 days or more in at least one of the two 12-month portions in the 24 months immediately preceding the date the application for a variation of travel conditions was made (ie, in at least one of the two 12-month portions, a period or periods that amount to 184 days or more). RV3.5.5 Tax residence status and limited time spent in New Zealand To meet the requirements regarding tax residence status and limited time spent in New Zealand, the [NAME[NAME] must: a. have been in New Zealand as [NAME] for a total of 41 days or more in at least one of the two 12-month portions of the 24 months immediately preceding the date the application for a variation of travel conditions was made (ie, in at least one of the two 12-month portions, a period or periods that amount to 41 days or more); and b. be assessed as having tax residence status for 12 months in the 2 years before their application. [58] The appellant would likely have met the requirements to be granted a 12-month VOTC under RV3.5, RV3.10 or RV3.15 (as per RV4.10.a.i) had he applied for it on the date his [NAME] [NAME] expired (7 September 2017) (or indeed a permanent [NAME] [NAME], if he had applied). At that point, he had spent a total of 184 days or more in New Zealand in both of the two 12-month portions of the 24 months immediately preceding the date the application for a VOTC would have been made (RV3.5.1) and also likely met the requirements regarding tax residence status in New Zealand (RV3.5.5). [59] However, the maximum VOTC under RV3.5 was for a period of 12 months. Therefore, the appellant was not eligible for an [APPELLANT] as per RV4.10.a.i because his travel conditions would not have still been valid on the date the application for an [APPELLANT] was made (23 April 2025). — [NAME] [NAME]: RV4.10.a.ii [60] The appellant did not meet the requirements of RV4.10.a.ii because, even if he had met the criteria to be granted a PRV (about which the Tribunal makes no finding) had he applied for it on the date his [NAME] [NAME] expired (7 September 2017), that date was not less than 24 months before the date his application for an [APPELLANT] was made on 23 April 2025 (RV4.10.a.ii). He was therefore not eligible for an [APPELLANT] under RV4.10.a.ii.

15 — Other special provisions: RV4.10.a.iii [61] RV4.10.a.iii refers to RV4.20 (effective 13 May 2019), which concerns [COMPANY] (RV4.20.1), former [NAME] [NAME] holders seconded overseas as part of their New Zealand employment (RV4.20.5) and [NAME] (RV4.20.10). These provisions are not relevant to the [NAME] case. Conclusion on correctness [62] For the reasons stated above, the Tribunal finds that Immigration New Zealand was correct to decline the [NAME] application for an [APPELLANT] because he did not meet the criteria as to a variation of travel conditions (RV4.10.a.i), a permanent [NAME] [NAME] (RV4.10.a.ii) or other special provisions (RV4.10.a.iii). Whether there are Special Circumstances [63] Where the Tribunal found the decision of Immigration New Zealand to be correct, it has the power to consider whether the circumstances of the appellant are special, such that they warrant consideration by the Minister of Immigration of an exception to the residence instructions. [64] Whether an appellant has special circumstances will depend on the particular facts of each case. The Tribunal balances all relevant factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special. [65] Special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”; [NAME] v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J. Personal and family circumstances [66] The appellant is a 50-[NAME]-old citizen of the UK. His wife, a 60-[NAME]-old citizen of the UK, and their [NAME] (as below), were included in his appeal. [67] The couple have four children, a [NAME], a 27-[NAME]-old daughter, and [NAME], aged 22 and 25, all of whom are citizens of the UK. The son is a permanent [NAME] of New Zealand, and lives with his wife here.

16 The [NAME]’s whereabouts have not been clarified, and it is inferred that she remained in the UK after the family’s return there in 2018 (she has not returned to New Zealand and the [NAME] [APPELLANT] application records that she is where she was living at that date). The [NAME] are presently in New Zealand as the holders of UK working holiday visas, valid until April 2028. [68] The appellant explains on appeal that his mother and two sisters remain living in the UK, but that he is estranged from them. He states that his wife’s sister also lives there. Immigration New Zealand records also indicate that the wife has two brothers who are citizens of the UK. Immigration history [69] The appellant, his wife and three [NAME] first came to New Zealand in 2008 as the [NAME] of temporary visas. The appellant held essential skills work visas as well as a work to [NAME] work [NAME] to work in the [NAME]. His wife also held essential skills work [NAME] and worked in managerial roles with [NAME] and other organisations. The [NAME] son came to New Zealand in 2009 and held temporary visas separately from the appellant and the other family members (he was not deemed to be a dependent child). The appellant and his family members departed from New Zealand for brief periods in 2014, 2015 and 2016. [70] In June 2015, the [NAME] application for residence under the Residence from Work (Long Term Skill Shortage List) category application was declined as he had not held the required work [NAME] to apply under that category. He otherwise met the relevant instructions. A subsequent appeal to the Tribunal was made in July 2015 but withdrawn in October 2015 after the appellant and his family (his wife and three [NAME]) were granted residence as an exception to instructions by a [NAME]. The [NAME] son was granted residence under the [NAME] in March 2017 and permanent residence in July 2019. [71] On 25 January 2018, the appellant, his wife and three [NAME] departed New Zealand. The couple’s son remained here. The [NAME] returned to New Zealand on two occasions in 2018 and three occasions in 2019 as the [NAME] of a visitor [NAME]. The appellant did not return until November 2023, when he and his wife returned for a three-week visit as the holders of visitor visas. [72] In June 2023, the appellant lodged an expression of interest in the ballot for the [NAME], which was not drawn from the pool and expired in

17 June 2025. In December 2023, the appellant requested ministerial intervention in his family’s case, but this request was declined in May 2024. [73] On 1 April 2025, the appellant, his wife and [NAME] returned to New Zealand. The [NAME] has not returned. The appellant and his wife were the holders of visitor visas, valid until 1 October 2025, and their two [NAME] held UK working holiday visas, valid until 1 April 2028. The appellant and his wife departed New Zealand on 30 December 2025 and have not returned. Their [NAME] have remained here. Work experience and prior settlement in New Zealand [74] The appellant is an IT professional and worked in various skilled roles in the [NAME] when he was in New Zealand from 2008 to 2018. The wife worked in New Zealand with different governmental departments and organisations. For much of this time, she was contracted to those organisations through a recruitment agency and employed in highly skilled, managerial and leadership roles. A letter (10 June 2025) from the director of the recruitment agency on appeal outlined the wife’s significant skillset and her strengths in business transformation, in particular, as well as her in-depth knowledge of New Zealand public service and a particular government department. The director states that she would not hesitate to engage the wife for future work. Two contracts for services indicate that the wife completed work through the recruitment agency on specified projects with the government department between March and October 2023, and for 12 months from January 2024. That the appellant and his wife have made a contribution through employment to New Zealand is accepted. [75] In their 10-[NAME] stay in New Zealand between 2008 and 2018, the appellant and his family were settled in New Zealand in their own house. Their [NAME] attended primary and secondary schools here. The family members’ respective letters on appeal indicate that the family became very settled in New Zealand over this period, and, in particular, the [NAME] made friends and other connections through their schooling and regarded New Zealand as home. Reasons for leaving New Zealand [76] The appellant and his family members explain on appeal that they left New Zealand in January 2018 to return to the UK to care for their [NAME], who at that point required care for their health and age-related issues. The wife’s mother died in June 2021 and the [NAME] father died in 2023. The couple

18 explain that they were actively caring for their respective parents as they felt that this was the right thing to do, despite the impact that it had on their ability to remain in New Zealand. They state that they did not expect to stay away from New Zealand for so long. There is no information on appeal about whether they were working over this period (apart from the wife’s remote contract work with the New Zealand government department), although it is reasonable to infer that they were working to some extent at some point over the seven years there, given their professional background and experience. [77] The letters on appeal from the [NAME] explain that they were reluctant to leave New Zealand to return to the UK because they regarded New Zealand as home. It is understandable that, having spent some of their formative [NAME] years in New Zealand, that it was difficult for them to do so, particularly as young teenagers. They claim to have both struggled to settle in the UK but managed to re-establish themselves sufficiently to complete their secondary school qualifications there in the seven years that they remained there. However, they kept in touch with their New Zealand friends and have been able to reconnect with some of them since returning in April 2025. [78] The appellant and his wife explain on appeal that they were not aware that their [NAME] visas had travel conditions as the information from the [NAME] manager that they were sent in August 2015 did not mention travel conditions. They do not remember receiving Immigration New Zealand’s letter of 7 September 2015 where the travel conditions applicable to their visas were explained. [79] However, Immigration New Zealand records indicate that the September 2015 letter was sent in a tracked package to their home address along with their family passports. It is therefore not accepted that the letter was not received. Moreover, the information on the Immigration New Zealand file indicates that the travel conditions and expiry date of those were recorded in the [NAME] [NAME] labels placed in their passports. These labels were again put in the [NAME] new passport in 2016, with the same travel conditions recorded. Despite the fact that they were self-represented during the [NAME] residence application, they are both educated people working in specialised, professional roles. It is therefore not accepted that they can have been unaware of their travel conditions as claimed. [80] In any case, section 56(2) of the Act provides that an obligation to comply with [NAME] conditions arises whether or not the [NAME] is aware of the conditions or the implications of not complying with them. Further, section 56(4), sets out the

19 presumption, in the absence of evidence to the contrary on the balance of probabilities, that a [NAME] was notified of any conditions imposed or varied. [81] Regardless, the length of time that the appellant and his family spent outside New Zealand was significant, and it is not clear that they would have been able to retain their [NAME] status whether they were aware of their travel conditions or not. They do not appear to have pursued permanent residence in New Zealand. Family’s [NAME] circumstances [82] The [NAME] [NAME] have remained in New Zealand since their return in April 2025. They both hold working holiday visas valid until April 2028. It is not clear from their letters what qualifications they hold or what their [NAME] employment is. Their parents indicate that the [NAME] are living in a house rented by the parents, which is nearby to where their brother and his wife live, and are still financially supported to some extent by their parents. [83] The appellant and his wife left New Zealand in December 2025 because they were not able to lawfully remain in New Zealand any longer after their visitor visas expired in January 2026. Since that time, they explain that they have been travelling between countries in East Asia, awaiting the outcome of their appeal. They explain that they are reluctant to return to the UK because they no longer feel that they have any remaining connections there and that they consider New Zealand to be their home. The appellant and his wife have taken steps to sell their house in the UK (although the documents on appeal do not indicate whether this has yet settled). Letters from all family members, including the [NAME] son and his wife, indicate that they simply wish to be reunited as a family in New Zealand so that they can support each other. Pathways to residence or temporary return [84] The appellant and his wife most recently lodged an expression of interest in the ballot for the [NAME], which was not drawn from the pool and expired in June 2025. This option remains open to them, as are other, temporary options, such as the parent and grandparent visitor [NAME] or the parent boost visitor [NAME]. They, of course, also have the option of further work-based temporary visas and, although the wife is now over the age limit for the Skilled Residence (Skilled Migrant) category of instructions, the husband, given his qualifications or skills, may well have pathways to residence through the Skilled Residence (Skilled

20 Migrant) category. They will be able to seek advice from counsel as to which option is best for their circumstances. [85] The [NAME] [NAME] are able to remain in New Zealand on their temporary visas until April 2028. While it is accepted they are close to their parents, they are of an age where they will be becoming increasingly independent of them and able to support themselves here, with the assistance of their brother. At the point at which their work visas expire, there may be other options available to them to pursue independently of their parents, if they wish to remain in New Zealand more permanently. Health and character requirements [86] There are no concerns recorded on Immigration New Zealand’s records about whether the appellant and his family members meet the health or character requirements of instructions. Immigration New Zealand was satisfied that these requirements were met during its assessment of the [NAME] residence application in 2015. These were not reassessed during the assessment of the [NAME] [APPELLANT] application. Discussion on special circumstances [87] The Tribunal acknowledges that the appellant and his family members have a family nexus to New Zealand, as the [NAME] son and his wife remain living here as permanent residents. In addition, it is acknowledged that the family have a strong sense of connection to New Zealand through the 10 years that they spent living here between 2008 and 2018. The [NAME], in particular, spent their formative early years here, and the appellant and his wife were employed in meaningful roles in which their experience was valued. [88] However, the appellant and his family members also retain a strong family nexus to the UK, where their [NAME] lives, as well as their respective siblings. The [NAME] [NAME] remain UK citizens and have no permanent right to remain in New Zealand. The appellant and his wife say on appeal that there is nothing left for them to return to in the UK. However, the UK is where they have most recently lived. They were able to return to the UK in 2018 after a lengthy absence and to re-establish themselves there for the majority of the last seven years. They were able to financially support themselves there and the [NAME] completed their secondary school education. It is accepted that this may have been a difficult period for all family members, particularly given the ill-

21 health of their [NAME] and the fact that the period coincided with the COVID-19 pandemic, which presented other challenges. However, it is not accepted that their ties to the UK are so limited as to prevent them being able to resettle there again. Alternatively, the appellant and his wife would appear to be highly skilled with significant work experience, both in the NZ and presumably in the UK, and well-resourced, and as such would appear to have other pathways to return to New Zealand on a temporary or more permanent basis. [89] The Tribunal also notes that it is not unusual for an appellant to lose their New Zealand residence by leaving and remaining outside the country, often for work or family-related reasons, often while other family members remain here. The Tribunal is not satisfied that the reasons for the [NAME] and his family’s inability to remain in, and subsequently return to, New Zealand to retain their [NAME] status are out of the ordinary. [90] Having considered the [NAME] circumstances, the Tribunal finds that he and his family members do not have special circumstances such as to warrant a recommendation to the Minister of Immigration that an exception to residence instructions be considered. DETERMINATION [91] This appeal is determined pursuant to section 188(1)(a) of the Act. The Tribunal confirms the decision of Immigration New Zealand to decline the appellant's application for residence as correct in terms of the applicable residence instructions. The Tribunal does not consider that the appellant has special circumstances that warrant consideration by the Minister of Immigration as an exception to those instructions under section 188(1)(f) of the Act. [92] The appeal is unsuccessful.

22 Order as to Depersonalised Research Copy [93] Pursuant to clause 19 of Schedule 2 of the Act, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the [NAME] name and any particulars likely to lead to the identification of the appellant or their family members. “[NAME]” [NAME] Member