Immigration New Zealand Decision Found Incorrect by Tribunal

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207463 [NAME], [NAME]

Appellant: [redacted]

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

Before: [NAME] (Member)

Representative for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 21 April 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 32-year-old citizen of Northern Ireland whose application for residence under the Family ([APPELLANT]) category was declined by Immigration New Zealand. THE ISSUE [2] Immigration New Zealand declined the appellant’s residence application because it was not satisfied that the appellant and his partner had been living together for 12 months or more in a genuine and stable [APPELLANT]. [3] The principal issue for the Tribunal is whether Immigration New Zealand’s decision was procedurally fair and correct. [4] For the reasons that follow, the Tribunal finds that Immigration New Zealand’s decision was not correct. Immigration New Zealand failed to clearly inform the appellant of its concerns that the [NAME]’s [APPELLANT] was not stable because of their brief separation in October 2024. It also incorrectly found that the [NAME] had not lived together for the required 12 months or more at the

2 time of the application being lodged. As the appellant was not given a reasonable opportunity to respond to Immigration New Zealand’s concerns, the Tribunal cannot be satisfied that the decision was correct.

BACKGROUND [5] The appellant first came to New Zealand in March 2020 holding a visitor visa. [6] The appellant and his partner met in 2022 and have lived together since March 2023. Their first child was born in [DATE] and their second was born in [DATE]. The partner is a permanent [NAME], and the children are citizens of New Zealand. [7] The appellant has held a series of work visas, including an Ireland working holiday work visa, an essential skills work visa and a work visa based on his [APPELLANT]. He currently holds a [APPELLANT]-based work visa. Residence Application [8] On 30 September 2024, the appellant made an online application under the Family ([APPELLANT]) category of residence instructions. [9] On 14 October 2024, the partner telephoned Immigration New Zealand to withdraw her support for the appellant’s residence application. On 25 October 2024 the appellant telephoned Immigration New Zealand to confirm the relationship had ended and asked to withdraw the [APPELLANT]-based work visa application that was also being processed. On 29 October 2024, the appellant provided a written confirmation that the relationship had ended. [10] In December 2024, the appellant informed Immigration New Zealand that he and his partner had reconciled. Immigration New Zealand’s Verification [11] On 16 May 2025, Immigration New Zealand interviewed both the appellant and his partner separately over the telephone. The appellant and his partner were asked about how long they had been together, the period of separation, when they reconciled and their future plans.

3 Immigration New Zealand’s Concerns [12] By letter dated 22 May 2025, Immigration New Zealand advised that it appeared that the appellant had not lived with his partner for 12 months or more at the time the application was lodged. [13] The letter also noted when the appellant’s partner contacted Immigration New Zealand on 14 October 2024 and declared that the relationship was over and that she was no longer supporting the application. On 29 October 2024, the appellant provided a letter confirming the relationship had broken down. On 19 December 2024, the appellant provided a letter stating that he and his partner had reconciled. His partner provided a statutory declaration dated 15 January 2025 stating the [NAME] had been in a committed and genuine relationship since September 2022, began living together in their current address on 16 November 2023, that they shared a child together and were expecting a second child in May 2025. [14] During the interviews on 16 May 2025, both the appellant and his partner explained the circumstances of the separation in October 2024 and that the appellant moving out of their shared accommodation. However, they both confirmed that they had remained in contact during that period, he had not removed his belongings from the shared accommodation and had moved back in after 10 days. [15] Immigration New Zealand concluded that, based on the evidence provided on the application and the interviews, it appeared that the relationship ended in October 2024, after the application was lodged on 30 September 2024, therefore the appellant and his partner had not been living together for 12 months or more prior to lodging the [NAME] visa application. Appellant’s Response to Immigration New Zealand’s Concerns [16] By letter dated 4 June 2025, the appellant wrote to Immigration New Zealand to explain that he and his partner were in a committed relationship, advising that they had a toddler and had just welcomed a second child. He explained that during a stressful and emotional time including sleep deprivation, another pregnancy and not having outside help, the partner made a call to Immigration New Zealand to say they had separated. She regrets that decision. He does not view their separation as a breakdown of the relationship because during the time when he was staying with a friend, he did not remove his

4 belongings from their shared accommodation and was at the house every day to support the partner and their baby. [17] The appellant provided a letter from his partner explaining the same circumstances about their separation in October 2024, but that she now supported his application. He also provided other evidence of the relationship, including a letter from the friends he was staying with during the separation; and family photographs; and proof of the ongoing relationship in the form of a joint tenancy agreement; and evidence of flights for a family holiday. Immigration New Zealand’s Decision [18] On 10 June 2025, Immigration New Zealand declined the application because it was not satisfied sufficient evidence had been provided to show the appellant and his partner had been living together for 12 months or more in a genuine and stable [APPELLANT] as per immigration instruction F2.5.a. [19] While Immigration New Zealand acknowledged that the appellant and his partner had reconciled and were currently living together as a [NAME], it was not satisfied that they had been living together for 12 months or more in a [APPELLANT] was genuine and stable because the [APPELLANT] ended for a period of time beginning in October 2024. STATUTORY GROUNDS [20] 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. [21] 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.

5 THE APPELLANT’S CASE [22] On 9 July 2025, the appellant lodged this appeal on the ground that his circumstances are special such that an exception to the residence instructions should be considered. [23] In support of his appeal, the appellant has provided written submissions (undated). He states that he and his partner have been in a genuine and committed relationship since 2022. In October 2024, they experienced a brief separation of a few weeks due to a particularly stressful period in their lives. They subsequently reconciled and have remained together since. The appellant explains that their relationship has continued to strengthen, especially following the birth of their second child in May 2025. [24] The appellant also provided the following documents: proof of address in the form of a joint tenancy agreement (16 November 2024); joint bank statement (17 April 2025); preschool enrolment for the two children; joint car insurance (17 February 2025); [NAME] (3 July 2025); birth certificates for the children; a series of photographs of the family and with friends (from 2022); supporting letter from the partner (undated); Airbnb reviews (2022); flight bookings (25 October 2023); and a statutory declaration from the partner (15 January 2025). Further information provided on appeal [25] 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). However, given the outcome of the appeal, the information can be considered by Immigration New Zealand in its reassessment of the application. ASSESSMENT [26] 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.

6 [27] 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. Whether the Decision is Correct [28] The application was made on 30 September 2024 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because it was not satisfied that the appellant and his partner had provided sufficient evidence to show that they had been living together for 12 months or more in a genuine and stable [APPELLANT]. Relevant residence instructions [29] Immigration New Zealand relied on instruction F2.5.a in declining the appellant’s application. F2.5 sets out how the partner of a [NAME] may qualify for residence. Relevantly, it provides: F2.5 How do partners of New Zealand citizens and residents qualify for a residence class visa? a. To be granted a residence class visa under [APPELLANT] applicants must provide sufficient evidence to satisfy an immigration officer that they have been living together for 12 months or more in a [APPELLANT] that is genuine and stable with a [NAME]. … d. An application under [APPELLANT] will be declined if: i. the application is not supported by an eligible [NAME] partner; or ii. an immigration officer is not satisfied that the [APPELLANT] on which the application is based is genuine and stable; or iii. the applicant and [NAME] partner have not lived together for 12 months or more at the time the application is lodged; or … Effective 08/05/2017 Instructions on principles of fairness and natural justice [30] According to the instructions at A1.1.c (effective 29 August 2012), all Immigration New Zealand officers must act according to the principles of fairness

7 and natural justice. Whether a decision is fair or not depends on various factors, set out at A1.5: A1.5 Fairness (29/11/2010) a. Whether a decision is fair or not depends on such factors as: ● whether an application is given proper consideration; ● whether the applicant is informed of information that might harm their case (often referred to as potentially prejudicial information); ● whether the applicant is given a reasonable opportunity to respond to harmful information; ● whether the application is decided in a way that is consistent with other decisions; ● whether appropriate reasons are given for declining an application; ● whether only relevant information is considered; ● whether all known relevant information is considered. b. How much fairness an immigration officer must bring to bear in deciding an application may depend on the consequences of the decision for the applicant. Example: A person who applies for a temporary visa for the first time has less to lose from having the application declined than, for example, a person who has been legally [NAME] in New Zealand for a number of years and is applying for a permanent [NAME] visa. Effective 29/11/2010

Application to the appellant’s circumstances [31] Immigration New Zealand’s concerns about the appellant’s [APPELLANT] arose because both the appellant and his partner independently informed Immigration New Zealand that their relationship had ended for a period in October 2024. The partner telephoned Immigration New Zealand on 14 October 2024 to advise that the relationship had ended and that she was withdrawing her support. On 25 October 2024, the appellant also contacted Immigration New Zealand to confirm the end of the relationship and to withdraw the work visa application, which was subsequently withdrawn that same day. He later provided a written statement on 29 October 2024 confirming the separation. [32] In its letter of 22 May 2025, Immigration New Zealand raised concerns that the appellant and his partner did not meet the relevant instructions. It stated that the [NAME] appeared not to have lived together for 12 months or more at the time

8 the residence application was lodged, referring to instruction F2.5.a. It also cited instruction F2.5.d.ii, which requires that the [APPELLANT] be genuine and stable, and F2.5.d.iii, which requires that the [NAME] have lived together for at least 12 months at the time of lodgement. The letter then summarised the [NAME]’s period of separation and the steps each took to notify Immigration New Zealand that the relationship had ended. It acknowledged that the [NAME] had since reconciled. [33] The Tribunal finds that Immigration New Zealand was not correct when it concluded that, because the relationship appeared to have ended in October 2024, the [NAME] did not appear to have lived together for 12 months or more in their “current [APPELLANT]” prior to lodging the application. The appellant’s evidence was that they had lived together since March 2023. [34] The documentary information provided by the appellant included [APPELLANT] evidence showing cohabitation of more than 12 months before lodgement of the application on 30 September 2024. This included: (a) a bank statement addressed to the appellant at the [NAME]’s first joint address (12 June 2023); (b) a utility bill in the partner’s name at the same address (1 January 2023); and (c) a joint tenancy agreement for their subsequent address (16 November 2023). [35] The Tribunal finds that Immigration New Zealand’s letter of concerns of 22 May 2025 lacked clarity because it failed to set out the two separate issues: the requirement for the [NAME] to have lived together for at least 12 months; and the requirement that the [APPELLANT] was genuine and stable. It emphasised the 12-month cohabitation requirement but did not clearly relate that period to the date the application was lodged, and then presented prejudicial information relating to the [NAME]’s temporary separation, implying but not stating its concern that (because of the separation) the [APPELLANT] was not and stable. The letter did not clearly distinguish between these separate issues. Immigration New Zealand also did not indicate why it considered that the brief separation outweighed the [NAME]’s evidence of their ongoing [APPELLANT] and the other evidence that pointed to them being in a genuine and stable [APPELLANT]. While both of these elements are

9 present in the requirement at F2.5.a, they each form separate requirements, as set out at F2.5.d. [36] Therefore, in his response of 4 June 2025, the appellant focussed on explaining the circumstances of the separation and confirming that he and his partner remained in a committed relationship and had recently welcomed their second daughter. [37] Immigration New Zealand’s concern that the [NAME] had not lived together for 12 months prior to lodgement was incorrect. The appellant had provided evidence of cohabitation from June 2023, and the application was lodged in September 2024. The [APPELLANT] therefore met the 12-month living together requirement as at the time the application was lodged. [38] Immigration New Zealand ultimately declined the application on 20 June 2025 on the basis that it was not satisfied the [NAME] had been living together for 12 months or more in a genuine and stable [APPELLANT], citing the apparent end of the [APPELLANT] in October 2024. It therefore concluded that instruction F2.5.a was not met. However, Immigration New Zealand’s decision was unclear in that it did not clearly explain why the [NAME]’s period of separation was related to whether they had been living together for at least 12 months (F2.5.d.iii) or whether it meant that it was not satisfied about the stability of the [APPELLANT] (F2.5.d.ii). It relied only on F2.5.a, which includes both issues. If the issue was whether the [APPELLANT] was stable, then Immigration New Zealand also failed to address other relevant evidence, including that they were still living together, had two young children and were financially interdependent (as per the factors listed at F2.20.b, effective 7 May 2018). [39] The Tribunal finds that Immigration New Zealand’s letter of 22 May 2025 did not clearly identify the actual concern, resulting in an inadequate response from the appellant. The decision was therefore unfair and prejudicial, as the prejudicial information was not properly presented or considered in accordance with instruction A1.5.a to give an applicant a reasonable opportunity to respond to harmful information. It also failed to give adequate reasons in its decision, referring only to F2.5.a of the instructions. Conclusion on correctness [40] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s residence application was not correct. For the reasons outlined above,

10 Immigration New Zealand did not act in accordance with the principles of fairness and natural justice in instruction A1.5. In particular, Immigration New Zealand failed to clearly inform the appellant of its concerns, being of the 12-month living together requirement and/or stability of the [NAME]’s [APPELLANT] due to their brief separation in October 2024. As the appellant was not given a reasonable opportunity to respond to Immigration New Zealand’s concerns, the Tribunal cannot be satisfied that the decision was correct. DETERMINATION [41] This appeal is determined pursuant to section 188(1)(e) of the Immigration Act 2009. The Tribunal considers the decision to refuse the visa was made on the basis of an incorrect assessment in terms of the applicable residence instructions. However, the Tribunal is not satisfied the appellant would, but for that incorrect assessment, have been entitled in terms of those instructions to the immediate grant of a visa. [42] The Tribunal therefore cancels the decision of Immigration New Zealand. The appellant’s application is referred back to the chief executive of the Ministry of Business, Innovation and Employment for a correct assessment by Immigration New Zealand in terms of the applicable residence instructions, in accordance with the directions set out below. Directions [43] It should be noted that while these directions must be followed by Immigration New Zealand, they are not intended to be exhaustive and there may be other aspects of the application which require further investigation, remain to be completed or require updating.

1. The application is to be reassessed by an Immigration New Zealand officer not previously associated with the application in accordance with the instructions in existence at the date the residence application was made. No further lodgement fee is payable.

2. Immigration New Zealand is to invite the appellant to update his application within a reasonable timeframe, if he sees fit, including providing him an opportunity to produce updated information on his [APPELLANT] with his partner.

11 Certified to be the Research Copy released for publication.

[NAME] Member 3. Immigration New Zealand is to consider the appellant’s application anew, including the issue of whether he has demonstrated that he is in a genuine and stable [APPELLANT] with his partner having regard to all the relevant evidence and those factors listed in F2.20 of residence instructions.

4. In concluding its assessment, Immigration New Zealand must have regard to any new evidence produced by the appellant, along with the evidence produced on appeal and during previous assessment of his application.

5. If, at any stage, Immigration New Zealand finds potentially prejudicial matters which must be put to the appellant, it is to do so in clear and concise terms with reasons. The appellant is to be given a reasonable opportunity to respond. [44] The appellant is to understand that the success of this appeal does not guarantee that his application will be successful, only that it will be subject to reassessment by Immigration New Zealand. [45] The appeal is successful in the above terms. Order as to Depersonalised Research Copy [46] 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 their family members. “[NAME] [NAME] Member