Immigration Appeal Dismissed Due to Health Concerns

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207464 RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: [redacted]

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

Before: Z N Pearson (Member)

Representative for the Appellant: [redacted]

Counsel for the Respondent: [redacted]

Date of Decision: 13 May 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 73-year-old citizen of South Africa and the United Kingdom, whose application for residence under the [NAME_4] was declined by Immigration New Zealand. The appellant’s 73-year-old husband, a citizen of South Africa and Ireland, was included in her application. THE ISSUE [2] [NAME_2] has polycystic kidney disease (PKD). Immigration New Zealand declined the appellant’s residence application because it found that her husband did not have an acceptable standard of health and declined to grant a medical waiver. [3] The principal issues for the Tribunal are whether Immigration New Zealand’s decision was correct, and, if so, whether the appellant and her husband have special circumstances such that 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’s decision was correct and that the appellant’s and her husband’s circumstances are not special.

BACKGROUND [5] The appellant and her husband visited New Zealand on four brief occasions in 2007, 2008, 2016 and 2023, and the appellant visited alone in 2026. The couple remain living in South Africa. Residence Application [6] The appellant lodged an expression of interest under the [NAME_4] in July 2020, which was sponsored by her New Zealand-citizen son (the son). She was invited to apply for residence on 14 November 2023. [7] The appellant made an application for a resident visa under the [NAME_4] on 27 February 2024, which was accepted for processing on 25 March 2024. The application included her husband. [8] To meet the requirements for residence, an applicant is required to be of an acceptable standard of health, unless (if eligible) they are granted a medical waiver (A4.10). To be assessed as having an acceptable standard of health, applicants must be unlikely to impose significant costs or demands on New Zealand’s health or special education services. Immigration New Zealand’s Concerns and Appellant’s Responses First letter – husband not of an acceptable standard of health [9] On 29 May 2024, Immigration New Zealand advised the son (who was assisting the appellant with the application) that [NAME_2]’s medical information had been assessed by a medical assessor on 10 May 2024. The medical assessor advised that the husband did not meet the acceptable standard of health requirements because of his PKD condition. Severe, chronic or progressive renal disorders were medical conditions listed in immigration instructions (A4.10.1) considered to impose significant costs or demands on [COMPANY_3]. The appellant was invited to provide further medication information for her husband.

3 [10] The son advised, in response, that no further information would be provided about his father’s health, as the assessment that had been made reflected the situation. He hoped that a medical waiver would be granted. Second letter – comments towards medical waiver [11] On 12 August 2024, Immigration New Zealand wrote again to the son, advising that a second medical assessor, acting as medical referee, had considered the information provided about the husband’s health. The medical referee found that the husband was not of an acceptable standard of health because of his PKD condition. A nephrologist’s report (May 2024) indicated that the husband was asymptomatic with normal renal function and an excellent renal prognosis. However, his condition was listed in immigration instructions (A4.10.1) considered to impose significant costs or demands on [COMPANY_3]. The appellant was invited to provide further information for her husband to be considered for a medical waiver. [12] On 4 September 2024, the son provided an updated medical report (3 September 2024) from a nephrologist with associated results of medical tests. The son stated that no further information would be provided. Email – further opportunity to provide comments towards medical waiver [13] On 27 September 2024, Immigration New Zealand wrote again to the son, advising that the husband’s updated medical information had been considered by the medical assessor. The medical assessor noted that the information confirmed that the husband had PKD, finding that he was not of an acceptable standard of health because he had a condition listed in immigration instructions likely to impose significant costs or demands on [COMPANY_3]. The medical assessor noted, for the purposes of a medical waiver, that the husband’s renal function was normal and did not require any specific treatment. Immigration New Zealand gave the appellant another opportunity to provide information towards a medical waiver. [14] In response, the son stated that no further information would be provided and requested that the husband be considered for a medical waiver.

4 First medical waiver assessment [15] On 8 November 2024, a medical waiver assessment was undertaken and a medical waiver was not granted. Email – opportunity to remove husband from application [16] On 11 November 2024, Immigration New Zealand advised that it had undertaken a medical waiver assessment (a copy of which was provided to the son) and a medical wavier was not granted to the husband. Immigration New Zealand advised that, as the husband had not met the health requirements of instructions and a medical waiver not granted, the appellant’s residence application may be declined. The appellant was offered an opportunity to remove her husband from the residence application. [17] On 12 November 2024, Immigration New Zealand sent the son a further copy of the medical waiver assessment, at his request. It granted an extension of time for him to respond and suggested that he could obtain advice from an immigration adviser or lawyer, which the son subsequently did. Further medical information provided [18] At the newly-appointed representative’s request, Immigration New Zealand granted extensions of time to provide a specialist’s report for the husband. [19] On 31 January 2025, the representative provided submissions with a report (25 January 2025) from another nephrologist. The representative argued that the report showed that the husband was of an acceptable standard of health, which meant that a medical waiver was not required. Third letter – further opportunity to provide comments towards medical waiver [20] On 20 February 2025, Immigration New Zealand advised that the original medical assessor had reviewed the new information, on 19 February 2025, and the opinion remained that the husband was not of an acceptable standard of health. Further, as per normal processes, a second medical assessor had reviewed the medical information as medical referee and had also concluded that the husband was not of an acceptable standard of health. Both medical assessors noted the medical information that, while the risk of the husband’s condition progressing to end-stage renal disease was low, it remained that he had a chronic,

5 progressive renal disease, which was a listed condition in immigration instructions. The appellant was given a final opportunity to provide comments towards a medical waiver. [21] The representative, in response, emphasised the information contained in his prior submissions and the report from the nephrologist about the husband’s standard of health. Second medical waiver assessment [22] On 20 March 2025, Immigration New Zealand undertook a medical waiver assessment for the husband. A medical waiver was not granted. Email – opportunity to remove husband from application [23] On 21 March 2025, Immigration New Zealand advised that, as [NAME_2] had not met the health requirements of instructions and a medical waiver not granted, the appellant’s residence application may be declined. The appellant was offered an opportunity to remove her husband from the application. [24] Following further correspondence with Immigration New Zealand, the representative provided final comments and advised that the husband was not to be removed from the appellant’s application. Immigration New Zealand’s Decision [25] On 28 May 2025, Immigration New Zealand declined the appellant’s application. It found that [NAME_2] had a condition listed in A4.10.1 of instructions, which meant that he was not of an acceptable standard of health (A4.10.a). The husband had been considered for, but was not granted, a medical waiver. STATUTORY GROUNDS [26] The appellant’s right of appeal arises from section 187(1) of the Act. Section 187(4) of the Act provides:

6 (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 visa was made; or (b) the special circumstances of the appellant are such that consideration of an exception to those residence instructions should be recommended. [27] 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 APPELLANT’S CASE [28] On 11 July 2025, the appellant lodged this appeal on both grounds in section 187(4) of the Act. [29] The representative makes submissions (11 July 2025) on appeal. In support of the appeal, as well as documents already on the Immigration New Zealand file, the representative provides statements from the appellant’s New Zealand-citizen son and grandson (undated), and an email (11 July 2025) from the appellant’s other son who is based in the United States of America. [30] When considering the correctness of Immigration New Zealand’s decision, the Tribunal cannot consider further information provided by an appellant that was not before Immigration New Zealand at the time that it made its decision to decline the application (section 189(1) of the Act). [31] There is a relevant exception to section 189(1) where, as in this case, the Tribunal considers that the further information provided on appeal is necessary for its determination of whether the appellant has special circumstances (section 189(3)(b)). The letters from the appellant’s family members are considered, as relevant, in the assessment of special circumstances, as set out below at [51]. ASSESSMENT [32] The Tribunal has considered the submissions and documents provided on appeal, the files provided by Immigration New Zealand in relation to the appellant’s

7 residence application, and Immigration New Zealand’s relevant electronic records for the appellant and her husband. [33] An assessment as to whether the Immigration New Zealand decision to decline the appellant’s 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. Whether the Decision is Correct [34] The application was accepted for processing on 25 March 2024 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because [NAME_2] was not of an acceptable standard of health and was not granted a medical waiver. [35] The appellant and her husband applied for residence under the [NAME_4], which requires (at F4.15.1.a, effective 12 October 2022) applicants to meet the health requirements of instructions to be of an acceptable standard of health or (if eligible) to be granted a medical waiver (A4.10.a, effective 16 March 2024). Applicants are considered to have an acceptable standard of health if they are unlikely to impose significant costs or demands on New Zealand’s health or special education services (A4.10.b). [36] A4.10.1 lists the medical conditions that are deemed to impose significant costs and/or demands on New Zealand’s health and/or education services. Included within the list are “severe, chronic or progressive renal or hepatic disorders”. [37] If Immigration New Zealand is not satisfied that an applicant has an acceptable standard of health, it must refer the application to a medical assessor (A4.10.d). Instructions A4.40 (25 July 2011) and A4.45 (29 November 2010) set out the procedure that follows such a referral. An applicant must be given an opportunity to comment on a medical assessor’s assessment that they do not have an acceptable standard of health (A4.40.a). If the applicant provides evidence that disputes the medical assessor’s opinion, this must be put to the medical assessor for consideration, who may either confirm or amend their assessment (A4.40.b and .c). If they confirm their original assessment, it and the disputing evidence will be referred to another medical assessor, acting as a

8 medical referee, for a second opinion (A4.45.a). The medical referee’s recommendation is final (A4.45.b). [NAME_2] not of an acceptable standard of health [38] [NAME_2]’s presented medical information from [NAME_7] based in South Africa. This information indicated that the husband had been diagnosed with congenital PKD in 2000 and had a family history of it, with his father dying of PKD in 2000. Since his diagnosis, the husband had had normal kidney function, no complications and was otherwise in good health. Both the May 2024 and the September 2024 reports expressed the opinion that it was “most unlikely” that the husband would require renal replacement therapy in the future. After setting out the different indicators for risk, the January 2025 report expressed the opinion that the husband had a “low risk” of requiring kidney replacement therapy and that the relevant indicators suggested that he would not require it until well into his 80s, if at all. [39] The medical information was properly put before the medical assessors according to the process in instructions, who reviewed it, including the updated information presented by the representative some months after the first assessment and medical waiver process had been undertaken. There is no indication, as argued by the representative to Immigration New Zealand, that the medical assessors’ consideration of the information was “cursory” or that they failed to properly make an accurate assessment of [NAME_2]’s health. The medical assessors acknowledged the opinions of the nephrologists regarding the husband’s low risk of needing renal replacement therapy. However, notwithstanding this, the medical assessors found that PKD was a chronic renal disease and, as a result, considered the husband to have a condition listed in A4.10.1. [40] On the evidence before it, the Tribunal is satisfied that Immigration New Zealand was correct to find that [NAME_2] had a condition listed in A4.10.1, and, as a result, he did not have an acceptable standard of health (A4.10.c). [41] On appeal, the representative does not contest the finding that [NAME_2] was not of an acceptable standard of health.

9 Medical waiver consideration [42] Applicants who are assessed as not having an acceptable standard of health may be considered for a medical waiver, unless one of the conditions listed at A4.60.a, which are not relevant to the present appeal, apply (A4.60.a, effective 16 March 2024). When assessing if a medical waiver should be granted, Immigration New Zealand must consider the circumstances of the applicant to decide whether they are compelling enough to justify allowing entry to or a stay in New Zealand (A4.70.b, effective 15 December 2017). Immigration New Zealand may take into account the following factors: A4.70 Determination of whether a medical waiver should be granted (residence and temporary entry) … c. Factors that officers may take into account in making their decision include, but are not limited to, the following: i. the objectives of Health instructions (see A4.1) and the objectives of the category or instructions under which the application has been made; ii. the degree to which the applicant would impose significant costs and/or demands on New Zealand's health or education services; iii. whether the applicant has immediate family lawfully and permanently resident in New Zealand and the circumstances and duration of that residence; iv. whether the applicant's potential contribution to New Zealand will be significant; v. the length of intended stay (including whether a person proposes to enter New Zealand permanently or temporarily). [43] Having determined that [NAME_2] was not of an acceptable standard of health, Immigration New Zealand proceeded to consider whether the husband was to be granted a medical waiver. [44] The Tribunal is satisfied that, in its final waiver assessment, Immigration New Zealand considered the factors set out at A4.70.c of instructions, including the husband’s medical condition and level of disease, his prognosis in terms of his lifestyle, the type of treatment he would require and the availability of such treatment, including an assessment of the degree to which the husband would impose significant costs and/or demands on [COMPANY_3]. Immigration New Zealand also considered the objectives of the health requirements of instructions and the objective of the residence category under which the residence application was made ([NAME_4]). Further, it

10 considered the husband’s familial nexus to New Zealand, his potential contribution to New Zealand and the contribution his son and daughter-in-law made here, and the fact that he and the appellant had no other pathway to residence and otherwise met the relevant requirements of instructions. The Tribunal finds that in its assessment, Immigration New Zealand fulsomely addressed all the factors it was entitled to have regard to, including those set out in the representative’s submissions and nephrologists’ reports. [45] Immigration New Zealand then identified and weighed the factors for and against granting a medical waiver and discussed them in some detail. Reference was made to the factors as highlighted by the representative in his submissions towards a medical waiver, including the nephrologists’ reports, the appellant and her husband’s circumstances in South Africa, their ties to New Zealand and their family’s circumstances, and the cost pressures and risks to the [NAME_3], even in light of the husband’s low risk of requiring renal replacement treatment or other treatment. Ultimately, after a detailed consideration of those factors, Immigration New Zealand concluded that the husband’s surrounding circumstances were not sufficiently compelling to justify waiving the health requirements in instructions. [46] On appeal, the representative submits that Immigration New Zealand’s medical waiver was incorrect because Immigration New Zealand failed to properly balance the positive factors, including the husband’s low risk of requiring kidney replacement treatment or dialysis, as set out in the nephrologists’ reports. The representative highlights that the low risk of the husband requiring treatment should have been regarded as a positive factor, rather than a significant cost or demand. [47] The Tribunal does not accept these submissions. [NAME_2] has a chronic condition, caught by A4.10.1, deemed to impose significant costs or demands on [NAME_3]. That the nephrologists’ reports noted that the husband was low risk was acknowledged. However, Immigration New Zealand was entitled to consider that the reports had not ruled out that intervention would be needed, which by the nature of the condition was deemed costly, and to weigh that possibility in the context of the husband’s age, family history of PKD, and the small but gradual changes to the size of the husband’s kidneys and the cysts on the kidneys. Even acknowledging that the husband’s condition was under control and deemed low risk, it considered that there were no other compelling circumstances to give weight to the grant of a medical waiver. It

11 had considered the familial links that the appellant and her husband had to New Zealand and accepted that family reunification was a significant factor in the category under which the appellant and her husband had applied. However, it did not consider that the couple’s circumstances (whereby their adult children had migrated to other countries) was compelling. There was no indication that the appellant and her husband’s circumstances in South Africa had given rise to any economic or physical hardship, or any indication that their needs there were not being met. [48] The Tribunal finds that in the context of the requirements set out in A4.70, the medical waiver was fairly and carefully assessed, and the decision not to grant a medical waiver was a finding that was open to Immigration New Zealand based upon an appropriate weighing of the competing factors for and against a medical waiver. The Tribunal finds that Immigration New Zealand’s medical waiver assessment was procedurally fair and correct. Conclusion on correctness [49] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application was correct. [NAME_2] has PKD, which is a listed condition deemed to impose significant costs and/or demands on [COMPANY_3] (A4.10.1). Immigration New Zealand was therefore correct to find that the husband was not of an acceptable standard of health (A4.10.a and A4.10.b.ii). [50] The Tribunal is also satisfied that Immigration New Zealand’s medical waiver assessment was fairly and properly considered (A4.70) and the decision to decline to grant a medical waiver was correct. Immigration New Zealand was accordingly correct to decline the appellant’s application for residence because her husband did not meet the health requirements of instructions (A4.10 and F4.15.1.a). Whether there are Special Circumstances [51] 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.

12 [52] 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. [53] Special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”; [NAME_5] v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J. Personal and family circumstances [54] The appellant is a 73-year-old citizen of South Africa and the United Kingdom. [NAME_2], a citizen of South Africa and Ireland, was included in her application. [55] The appellant and her husband visited New Zealand on four brief occasions of between two and six weeks, in 2007, 2008, 2016 and 2023, and the appellant visited alone in 2026, as the holders of visitor visas. [56] The couple have two adult sons. One is married with a child, and this son and his family are all New Zealand citizens and reside here. The appellant’s other son resides in the United States of America, although his immigration status there is not clear. [57] The details on Immigration New Zealand’s files indicate that [NAME_2] has two siblings who reside in South Africa and one in the United Kingdom. No details of any siblings of the appellant are recorded. Nexus to New Zealand and best interests of the appellant’s grandson [58] The Tribunal accepts that the appellant and her husband have a familial nexus to New Zealand through their New Zealand-based son and his family. The son first visited New Zealand in 2002 and has lived in New Zealand for the most part from January 2003 (apart from a three-year period between 2008 and 2011 when he appears to only have visited for brief periods). He held a work to residence visa before being granted residence in July 2003. At some point, he became a New Zealand citizen. The son and his wife were found to be acceptable sponsors for the appellant’s application. They are employed in professional roles in the health and education sectors, and the Tribunal accepts that, in those roles, they make valued contributions to New Zealand.

13 [59] The Tribunal has an obligation to have regard to the best interests of any children affected by the outcome of the appeal, under Article 3(1) of the 1989 Convention on the Rights of the Child. The best interests of children are a primary consideration and must be afforded substantial weight; [NAME_6] v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [49]. [60] The appellant’s New Zealand-citizen son has a primary-school aged son, the appellant’s grandson, who is a New Zealand citizen and has always lived here. The grandson has spent time with the appellant and her husband during family visits and no doubt keeps in contact in other ways in between visits. In his letter on appeal, the grandson writes that it would be amazing to have his paternal grandparents living in the same country and being able to spend time together. His father, the appellant’s son, explains that the grandson is close to his maternal grandparents, who live an hour away from them, because they frequently spend time together. He wishes that his parents could live here and have the same relationship with his son. Given the stable family support that the grandson already has in New Zealand, while it is important for the family to grow intergenerational relationships, it cannot be said that his best interests require a grant of residence to the appellant and her husband. [61] The Tribunal acknowledges the important relationships that the appellant and her husband have to their family in New Zealand and that all family members would like to live closer so that those relationships could be furthered. The appellant’s sons’ stress at having their parents living in South Africa without a child nearby, in case they need urgent help, is also acknowledged, as is the difficulties that the sons face in terms of juggling visiting their parents with work and other commitments. However, there is nothing that is out of the ordinary in the couple’s family situation or their nexus to New Zealand. It is common for adult children to migrate and, in due course, wish for their parents to join them so that they can support them and their parents can grow relationships with their grandchildren. The appellant and her husband have managed, to date, to maintain contact with their family through visits and in other ways, which can continue. Health, character and English language requirements [62] Immigration New Zealand’s files record that it found the appellant and her husband met the character requirements of instructions as they presented clear police certificates from their countries of citizenship. They both also met the English language requirements.

14 [63] The appellant met the health requirements of instructions. However, her husband did not as he was not of an acceptable standard of health because he has a chronic medical condition, PKD, that a medical assessor and a medical referee both found to be a condition deemed to impose significant costs and/or demands on [COMPANY_3]. Immigration New Zealand did not grant the husband a medical waiver because it did not consider that the appellant and her husband’s surrounding circumstances were sufficiently compelling to justify waiving the health requirements in instructions. The Tribunal has found that this decision was correct and fairly arrived at. [64] It is acknowledged that, to date and at present, [NAME_2] does not suffer any symptoms of PKD and that, as acknowledged by the Immigration New Zealand medical assessors, he may remain well for some time, with a low risk of requiring renal replacement therapy. However, the lack of certainty over an applicant’s health condition and whether it will ever present a burden to the [NAME_3] is not unusual, and, as such, the husband’s medical condition does not, of itself, warrant consideration of an exception to instructions. The appellant’s circumstances in South Africa [65] The appellant and her husband have lived in South Africa for all their lives and have friends and other connections there developed through their work, leisure pursuits and their lifelong contributions to the community in which they live. Since retirement, they have continued to lead active lives, enjoying their leisure pursuits, developing hobbies and other connections to the community, and undertaking international travel. Both their sons express concern for their parents’ circumstances and their safety, given that they are getting older and have limited support there now, in the general context of the insecurity and challenges faced by those living in South Africa. However, these sorts of concerns are common for adult children whose parents are left in the home country when they migrate and, as they age, begin to require a little more support than they have previously. There is nothing, in the information provided on appeal, that indicates that the appellant and her husband’s circumstances in South Africa are out of the ordinary or that they are particularly vulnerable or face concerns different from other South African citizens.

15 Discussion of special circumstances [66] The Tribunal acknowledges the appellant and her husband have a family connection to New Zealand through their son, daughter-in-law and grandson, all citizens of New Zealand. They wish to live in New Zealand so that they can join their family’s life here and that all family members can benefit from the mutual support that living close to each other would enable. [67] It is not uncommon for parents, as they get older, to wish to join family in New Zealand. It is acknowledged that, as parents age, there is often a need for adult children to provide support to them, and that this is significantly more challenging when the family reside in different countries. However, even acknowledging the complexities of an adult’s child’s decision to migrate, this is a common and foreseeable consequence of such migration. A familial nexus to New Zealand through children and grandchildren is also not out of the ordinary for applicants under the [NAME_4], who are required to have such a nexus to New Zealand. It is not demonstrated that the appellant and her husband cannot continue, for some time, to maintain their relationships with their New Zealand-based family through visits, as they have since 2007, and maintain contact in other ways as they have done to date. [68] Further, there is the negative factor of the potentially significant burden of [NAME_2]’s health condition for the [NAME_3]. While he remains relatively fit and well, he has a chronic medical condition, PKD, deemed to impose significant costs and/or demands on [COMPANY_3]. Conclusion on special circumstances [69] Having regard to circumstances of the appellant, her husband, and their family members, the Tribunal finds that, considered cumulatively, the appellant does not have special circumstances such that would warrant a recommendation that the Minister of Immigration consider an exception to residence instructions. DETERMINATION [70] 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

16 Certified to be the Research Copy released for publication.

Z N Pearson Member 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. [71] The appeal is unsuccessful. Order as to Depersonalised Research Copy [72] 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 appellant’s name and any particulars likely to lead to the identification of the appellant or her family members. “Z N Pearson” Z N Pearson Member