Immigration Appeal Rejected Due to Insufficient English Language Skills

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207458 RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: [redacted]

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

Before: S McDowall (Member)

Counsel for the Appellant: [redacted]

Counsel for the Respondent: [redacted]

Date of Decision: 17 April 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 39-year-old citizen of India whose application for residence under the [NAME_1] was declined by Immigration New Zealand. The application included his wife, aged 36 and two children aged 5 and 3 years. The appellant and his wife also have two younger children aged two years, and seven months, who were not included in the residence application and are not included in this appeal. The family members are citizens of India. THE ISSUE [2] Immigration New Zealand declined the appellant’s residence application because he did not meet English language requirements. The Tribunal finds that Immigration New Zealand’s decision was correct. [3] The principal issue for the Tribunal is whether the appellant has special circumstances, arising from his employment and his family’s settlement in New Zealand over the last three years, such that they warrant consideration by the Minister of Immigration of an exception to instructions.

2 [4] For the reasons that follow, the Tribunal finds that the appellant’s circumstances are not special.

BACKGROUND [5] The appellant first arrived in New Zealand in May 2015 holding a student visa. He completed the Diploma in Business Management (Level 7) and subsequently successfully applied for a post-study work visa in July 2016, which was granted. [6] In February 2020, the appellant departed New Zealand. He re-entered in April 2022 holding an essential skills work visa. He made a one-month trip to India, in June 2023, arriving back in New Zealand with his family, in July 2023. He has not left New Zealand since. [7] The appellant has been married to his wife since March 2017. They have four children together, aged 5, 3, 2 and 6 months. The two youngest children were born in New Zealand. [8] Most recently, the appellant has work as a restaurant manager in a provincial region of New Zealand. It is with this employment that he applied for residence under the [NAME_1]. [9] The appellant currently holds an accredited employer work visa, valid until February 2030. His wife holds a partnership-based work visa, and the children hold visitor visas based on their father’s work visa, all for the same time period. Residence Application [10] On 31 August 2023, the appellant submitted an Expression of Interest (EOI) for the [NAME_1] with the occupation of a restaurant manager. He claimed 185 points. [11] On 11 December 2023, the appellant made an online application under the [NAME_1] of residence instructions. The application included his wife and their two oldest children. The two younger children were not included as they were not yet born.

3 Immigration New Zealand’s Verification [12] On 18 April 2024, Immigration New Zealand requested further information and evidence of the appellant’s English. Counsel responded, on 23 April 2024, advising that the appellant had booked an English test for 5 June 2024. [13] On 20 June 2024, Immigration New Zealand conducted an interview with the appellant over the phone. The purpose of the interview was to obtain more information about his role. After the phone interview Immigration New Zealand sought further information, for a relationship timeline, reasons for any separation and evidence of living together, police certificates for the appellant and his wife, evidence of the partner’s qualification, employment agreement and the results of his English test. [14] On 1 July 2024, Immigration New Zealand sent a follow up request for the appellant’s English test results. On 8 July 2024, counsel provided evidence of another test booked for 25 September 2024. [15] On 2 October 2024, Immigration New Zealand requested the English test results. Counsel provided another English test booking for 30 October 2024. [16] On 7 November 2024 and 13 November 2024, Immigration New Zealand requested an update and English test results. On 15 November 2024, counsel advised that another test had been booked for 26 February 2025. [17] On 5 March 2025, counsel advised that the appellant could not sit the test booked for 26 February 2025 and it had been moved to 24 March 2025. Immigration New Zealand’s Concerns [18] By letter dated 10 March 2025, Immigration New Zealand advised the appellant that it did not appear that he met the English language requirement as per SM4.5 of the instructions. [19] Immigration New Zealand noted that it had provided the appellant with several extensions to provide evidence of English test results and that it was providing one final extension.

4 Appellant’s Response to Immigration New Zealand’s Concerns [20] On 15 May 2025, counsel provided the result of the English test. The appellant had scored 52 on the [NAME_1] of English Academic ([NAME_1]). It was understood that the required score was 58 (as set out at SM4.5). Counsel requested an extension for another week because the appellant had paid for another test to show that he met the English requirement. Immigration New Zealand’s Decision [21] On 22 May 2025, Immigration New Zealand declined the application because the appellant did not meet the English language requirement set out at instruction SM4.5. Under that instruction, applications under the [NAME_1] must be declined if the principal applicant did not meet the minimum standard of English. Instruction SM4.5.5 requires the appellant be able to obtain a minimum of a 58 on the [NAME_1]. STATUTORY GROUNDS [22] The appellant’s 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 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. [23] 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 [24] On 3 July 2025, the appellant lodged this appeal on both grounds in section 187(4).

5 [25] In support of his appeal, counsel for the appellant provided submissions and the following documents: (a) a letter of support from the [NAME_1] religious group (undated); (b) a letter of support from the [NAME_2] (26 June 2025); (c) two payslips from the appellant’s employment (27 November 2023 and 4 December 2023); and (d) a letter from the appellant’s medical clinic showing his then current medications (17 March 2025). Further information provided on appeal [26] 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). There are exceptions. However, although the further information provided by the appellant existed at the time of Immigration New Zealand’s decision, it would not have been relevant to the making of that decision (section 189(3)(a)(i)). [27] 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)). This assessment is set out below from [36]. ASSESSMENT [28] The Tribunal has considered the submissions and documents provided on appeal and the file provided by Immigration New Zealand in relation to the appellant’s residence application, and Immigration New Zealand’s relevant electronic records. [29] 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 which warrant consideration of an exception by the Minister of Immigration.

6 Whether the Decision is Correct [30] The application was made on 11 December 2023 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because the appellant did not meet the English language requirement set out at instruction SM4.5. Under that instruction, applications under the [NAME_1] must be declined if the principal applicant has not met the minimum standard of English. [31] The relevant instructions in this case are: SM4.5 Minimum standard of English language for principal applicants (to 26/07/2024) a. Applications under the [NAME_1] must be declined if the principal applicant has not met the minimum standard of English. b. Principal applicants under the [NAME_1] meet the minimum standard of English if they provide acceptable English language test results no more than two years old at the time the application is lodged, as set out at SM4.5.5. c. Other evidence that a principal applicant meets the minimum standard of English is: i. citizenship of Canada, the Republic of Ireland, the United Kingdom or the United States of America, provided the applicant has spent at least five years in work or education in one or more of those countries or Australia or New Zealand; or ii. a recognised qualification (SM8) comparable to a New Zealand level 7 bachelor’s degree and gained in Australia, Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America as a result of study undertaken for at least two academic years in one or more of those countries; or iii. a recognised qualification (SM8) comparable to a New Zealand qualification at level 8 or above and gained in Australia, Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America as a result of study undertaken for at least one academic year in one or more of those countries. d. In any case, an immigration officer may require a principal applicant to provide an English language test result in terms of paragraph SM4.5 (b). In such cases, the English language test result will be used to determine whether the principal applicant meets the minimum standard of English. e. Despite (b) above, if a principal applicant can provide acceptable English language test results (as set out at SM4.5.5) and their EOI was in the [NAME_1] as at 1pm on 11 November 2022, they are considered to have met the minimum standard of English requirement even if the test results are more than two years old at the time their application is lodged.

7 SM4.5.1 Decision to request English language test Full consideration must be given to all evidence of English language ability provided before a decision to request an English language test under SM4.5 (d) is made. If an English language test result is requested the reason(s) behind the decision must be clearly documented and conveyed to the applicant. SM4.5.5 Acceptable English language test results for principal applicants The following English language test results are acceptable: Test Minimum score required International English Language Testing System (IELTS) - General or Academic Module Overall score of 6.5 or more Test of English as a Foreign Language Internet-based Test (TOEFL iBT) Overall score of 79 or more [NAME_1] of English Academic ([NAME_1]) Overall score of 58 or more B2 First (First Certificate in English) (formerly Cambridge English: First (FCE)) or B2 First for Schools (First Certificate in English) (formerly Cambridge English: First (FCE) for Schools) Overall score of 176 or more Occupational English Test (OET) Grade B or higher in all four skills (Listening, Reading, Writing and Speaking)* * A score of Grade B or higher in all four skills is required for the OET as there is no overall grade for this test. Effective 09/11/2022 [32] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application for residence was correct, for the following reasons. [33] Instruction SM4.5.b provides that principal applicants under the [NAME_1] meet the minimum standard of English if they provide acceptable English language test results, dated no more than two years old at the time of the application is lodged. SM4.5.5 sets out the different acceptable language tests and the required result for the different tests. For the [NAME_1] test, a score of 58 points or more is required.

8 [34] Immigration New Zealand gave the appellant time between April 2024 and May 2025 to provide one of the required test results. On 15 May 2025, counsel provided the result of the English test. The appellant had scored 52 on the [NAME_1]. That was below the minimum score required to meet the instructions of having a minimum standard of English language for a [NAME_1] applicant.

Instruction SM4.5.a required Immigration New Zealand to decline any application under the [NAME_1] if the principal applicant did not meet the minimum standard of English. Immigration New Zealand had no discretion to do otherwise. Conclusion on correctness [35] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application was correct. The appellant did not meet the minimum English language requirement of residence instructions as set out at SM4.5 and SM4.5.5. Whether there are Special Circumstances [36] 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. [37] 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. [38] Special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”; [NAME_3] v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J. Personal and family circumstances [39] The appellant is a citizen of India. He lived in New Zealand from May 2015 to February 2020. During this time, he married his wife, in March 2017. His wife and two children (at the time) arrived in New Zealand in July 2023 and have been living in New Zealand since.

9 [40] Since arriving in July 2023, [NAME_1] has given birth to two more children. They are all citizens of India. [41] The appellant’s parents and siblings still reside in India. Immigration history [42] The appellant commenced study in New Zealand in July 2015. He completed a Diploma in Business Management (Level 7) the following year. He subsequently held a one-year post-study work visa. He has since held a series of essential skills work visas and an accredited employer work visa. [43] In August 2023, the appellant submitted his EOI under the [NAME_1] on the basis of his role as a restaurant manager. The appellant was subsequently invited to apply for residence in the same month. He applied for residence under the [NAME_1] in December 2023. However, his application was declined, in May 2025, because he did not meet the English language requirements. Settlement in, and contribution to, New Zealand [44] The appellant has lived in New Zealand for a total of eight years over the past 11 years. His wife and children have been in New Zealand for almost three years. [45] A letter from the [NAME_1] religious group (undated) with which the appellant and his family are affiliated describes the appellant as an integral member of their community, volunteering to lead prayers and demonstrating commitment to his faith and community. A letter from the [NAME_2] (26 June 2025) notes that the appellant is well-known in the [NAME_1] community through his management of a [NAME_1] business. [46] A letter from the appellant’s employer (6 December 2023) states that he understands that the appellant is a key employee who is proactive in managing business operations. The appellant has been employed by his current employer since 2019, although he returned to India in February 2020 and was unable to return to resume work in New Zealand until April 2022. The business came under new management in August 2023.

10 [47] [NAME_1] has a Master of Science (Bio-chemistry) degree from an [COMPANY_1] which has been assessed as comparable to a Level 9 science qualification on the New Zealand Qualifications and Credentials Framework (NZQCF). No information has been provided regarding whether [NAME_1] has been able to take up employment, although the Tribunal notes that she holds a work visa. [48] The appellant’s two middle children have been attending the [NAME_1] kindergarten since January 2024 and June 2025 respectively. [49] The Tribunal finds that the appellant has made a modest contribution to New Zealand through his employment. It also accepts that the appellant and his family will have formed friendships and community connections through their work, religious involvement, and [NAME_1] engagement, consistent with the length of their residence. However, their length and extent of settlement and their contribution to their community, while genuine, are not unusual in the context of migrants in similar circumstances. Health, character and English language requirements [50] Immigration New Zealand found that the appellant and his wife had an acceptable standard of health. [51] The appellant provided Immigration New Zealand with clear police certificates from India (14 December 2023) and New Zealand (16 January 2024). [NAME_1] provided Immigration New Zealand with a clear police certificate from India (24 May 2024). [52] The Tribunal notes the High Court decision of He v Chief Executive of the Department of Labour (HC Wellington, CIV-2008-485-1300, 13 November 2008) in which [NAME_4] explained how an appellant’s English language ability is relevant to the Tribunal’s special circumstances assessment at [50]): What is relevant in assessing special circumstances relating to the appellant’s English language ability is how good the appellant’s written and oral English actually is. For example, if it is near the [required] standard then this could hardly be considered a negative factor at all. If the [appellant] has virtually no written or oral English then this is likely to be a negative factor relevantly taken into account in assessing whether there are special circumstances. [53] The appellant has provided Immigration New Zealand with his most recent test result (of 15 May 2025, with a score of 52 on the [NAME_1]) which indicates that he scored close to the minimum language requirement.

11 [54] Given the close margin by which the appellant failed to satisfy instructions, the Tribunal finds that his English language ability is a neutral factor in this assessment. That is, it is given no weight. [55] According to Immigration New Zealand’s records, [NAME_1] achieved the required English language requirement for secondary applicants with a [NAME_1] score of 59 (29 October 2025). Best interests of the children [56] 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 the child(ren) are a primary consideration and must be afforded substantial weight; [NAME_5] v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [49]. [57] The best interests of a child must be considered having regard to their particular circumstances and the nature and quality of the relationships which they have in New Zealand. [58] The appellant has four children. The two older children were included in the residence application. Although the younger two were not included, their best interests must still be considered, as they too will be affected by the outcome. [59] The children are now aged 5, 3, 2 and 6, and six months. The older two were born in India and the younger two were born in New Zealand. All four children have always been in the care of at least one parent and are fully dependent on their parents at this stage of development. The oldest child is school-aged, although no information has been provided about her schooling. There is no evidence that any of the children have any particular vulnerabilities. [60] The Tribunal finds that the children’s best interests are met by remaining in the care of their parents, whether that occurs in New Zealand or in India. The family members are currently able to remain together in New Zealand because of the temporary visas that they hold. There is no evidence before the Tribunal to suggest that their best interests require the grant of residence.

12 Current visas [61] The appellant and his wife currently hold valid work visas until February 2030. Their children, as dependants of a work-visa holder, hold visitor visas of varying durations, expiring in March 2027, July 2027 and July 2029. While the family’s circumstances are understood, the fact that the appellant and his wife retain lawful status for a further four years means that granting residence as an exception to instructions is not warranted at this time. [62] The appellant has a meaningful opportunity, during the remaining period of his visa, to continue improving his English language proficiency. Likewise, his wife, who holds an NZQCF Level 9 science qualification and has already achieved a higher [NAME_1] score, will be able to pursue suitable employment opportunities as their youngest child grows older. Discussion on special circumstances [63] The appellant, an Indian citizen, has lived in New Zealand for eight years in total and has now been joined by his wife and four [NAME_4] children, with the youngest two being born in New Zealand. The appellant’s and his wife’s wider family remains in India. The appellant and his wife hold work visas valid until February 2030 and their four children are also able to remain here until then. [64] The appellant and his family have established community ties through employment, religious involvement, and [NAME_1] engagement. Letters from community members, his employer, and a Member of [NAME_1] attest to his positive presence, though the Tribunal finds that the level of settlement and contribution, while genuine, are not special. The appellant and his wife meet health and character requirements. The appellant’s English language scores fall just short of the required threshold, however, his wife meets the English requirement. [65] The Tribunal has considered the best interests of the couple’s four children, all of whom are very [NAME_4] and fully dependent on their parents. There is no evidence of vulnerabilities, and their best interests are met by remaining in their parents’ care, whether in New Zealand or India. The factors before the Tribunal do not indicate that their best interests require the grant of residence as an exception to instructions.

13 Certified to be the Research Copy released for publication.

S McDowall Member Conclusion on special circumstances [66] Having regard to circumstances of the appellant and his family, the Tribunal finds that the appellant does not have special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to residence instructions. DETERMINATION [67] This appeal is determined pursuant to section 188(1)(a) of the Immigration Act 2009. 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 which warrant consideration by the Minister of Immigration as an exception to those instructions under section 188(1)(f) of the Act. [68] The appeal is unsuccessful. Order as to Depersonalised Research Copy [69] 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 his family members. “S McDowall” S McDowall Member